10 Minutes with…Simon Couper KC

Thanks for agreeing to speak with Hearsay.

Thank you for asking me.

You grew up and were schooled on Queensland’s Gold Coast. Were you a “sun and sand boy”, a “sports jock”, a “scholar”, or all or some of those?

I was not a surf person. Cricket and rugby were my preferred activities and school work was a necessary activity.

How did you come to study law, as opposed to follow some other career path?

I had done maths and science subjects at school, and originally embarked on a science degree majoring in maths and physics. After about 4 weeks I realised that was not for me. My father was a solicitor and I had some vague familiarity with the law, so I started doing a law degree because it seemed a sensible option. I eventually worked out that I was suited to the law.

What do you like about being a barrister?

I enjoy the intellectual challenge of being a barrister. I enjoy cross-examination, which I have in the past described as being the most fun you can have standing up with your clothes on. I take some pride in assisting clients achieve a just outcome from the legal system, because competent barristers are important cogs in the function of that system.

What do you dislike about being a barrister?

Practice as a barrister can impose overwhelming demands on your time unless you carefully control them. I dislike the relatively rare occasions when opposing lawyers do not act with appropriate professional courtesy. I dislike losing cases that I think I should have won, but that comes with the territory.

What are the salient changes that have occurred in civil litigation in your time at the Bar?

I think the two most significant changes have been the widespread adoption of mediation as a means of resolving civil litigation and the introduction of court supervision of the process of litigation. When I first started at the bar, mediation was almost unheard of. Now it is prevalent. Similarly, in my early days at the bar parties were largely left to their own devices regarding the speed at which and the means by which litigation was advanced to a trial. That is generally no longer the case.

Were such changes for the better, or worse?

On the whole, mediation has been a good thing because it leads to a usually less expensive means of resolving disputes as compared, for example, in the past to settlement discussions on the eve of a trial. There is one identifiable downside of mediation. To properly advise a client what an appropriate settlement is, a barrister needs to have an understanding about what is likely to happen if the matter goes to trial. Because of the large proportion of matters which settle at mediation, it has become increasingly difficult for counsel, particularly junior counsel, to actually have experience of the ups and downs of trials. That makes it more difficult to give sound advice regarding the level of an appropriate settlement.

As to court supervision, generally speaking that has been a change for the better, particularly for the party seeking to have a prompt resolution of their dispute. Although case management hearings come at a cost, the fixing of a defined timetable means that parties are forced to focus on the fact that there will be a trial, which in turn prompts the prospect of sensible consideration of a settlement.

We seem to have entered the age of the long and expensive commercial trial. Is that sustainable as a means of dispute resolution?

I think generally speaking, long and expensive commercial trials occur in what might be regarded as difficult high stakes matters. It is in part a product of the success of mediation that a higher proportion of trials these days falls into the long and expensive category. Generally such trials are between litigants who can afford to have the fight. It is incumbent on barristers engaged in such matters to focus on fighting about real issues that matter, so that the length of commercial trials can be confined as much as is practicable.

Do you have a routine to sustain you – physically and mentally – upon a long trial?

Long trials are difficult. Careful preparation is vital so that the trial, and your life, is not disrupted by something unexpected which has to be dealt with on the run. Otherwise, trying to get a good night’s sleep is my key. Taking as much of the week-end off as possible and doing some walking are the other things I try to do.

What is the core intent in undertaking an effective cross-examination?

The outcome of many trials depends upon a decision of the court on issues of fact. The aim of an effective cross-examination is to have the court accept your witnesses’ version on key issues of fact. Preparation for an effective cross-examination will have identified lines of attack on the opposing witnesses’ evidence. I discuss these matters in my paper “Cross-Examination Basics”. For example, I would include considering whether the witness’ evidence is internally contradictory, whether there is a prior inconsistent statement, whether the evidence is inconsistent with contemporaneous documents or objectively provable facts or inconsistent with ordinary human behaviour and commonsense.

Is there any particular technique in cross-examining a salient witness who you seek to impugn but know will project – prima facie – as plausible?

A witness who will project prima facie as plausible may still be effectively cross-examined having regard to matters such as those referred to above. The most difficult witness to cross-examine is one whom you assess as honest with an accurate recollection of events. It may be that a cross-examination of such a witness is directed towards things like the passage of time, the vagaries of memory and perhaps errors about peripheral matters.

Has the conduct of many commercial trials on affidavit evidence in chief detracted from evidentiary quality?

One thing I emphasise to solicitors and junior counsel involved in the preparation of affidavits is that the evidence must be the recollection of the witness and the language must be the language of the witness. I have seen many affidavits over the years which bear the hallmarks of lawyers’ language. I think it can be said that the use of affidavits has detracted from the quality of evidence in chief. That is why many judges will require oral evidence on what might be described as “who said what to who” aspects of a case. On the other hand, having the other side’s evidence in chief on affidavit assists in preparation for cross-examination, including cross-examination about whether the words in the affidavit are the witness’ own words.

Counsels’ ethical obligations include dispensing – as a matter of counsel’s discretion – with weak argument which will waste the court’s time. Is that a matter which ought be decided by counsel alone, or ought the dispensation decision be undertaken in concert with the instructing solicitor and possibly client?

Because the matter affects the interests of the client and because views might differ as to the strength of an argument, it is my practice to consult with the instructing solicitor, and on occasions the client, before making the decision. I am always conscious of the need to be careful in determining what is a weak argument. I always recall an application for an injunction I made years ago where I regarded one argument as being straightforward and very strong and a second argument as being weak. The judge rejected the first argument out of hand and upheld my application on the basis of what I regarded as the weak argument.

Aside from idiosyncratic rules of court, do you find you adjust your style when appearing in the different courts across Australia?

I have found that the general approach of judges in courts across the country is basically the same. I have not found it necessary to adjust my style of advocacy depending upon the court in which I am appearing.

Is there a particular lawyer – barrister or solicitor – who mentored you, or whose advocacy style you strove to adopt, and why?

In my early years I had the privilege on a couple of occasions to be junior to Patrick Keane QC, as his Honour then was. I think I have striven to adopt that advocacy style of being courteous, straightforward and going directly to points that matter.

Confining yourself to retired judges, is there a particular jurist you held in high regard, and why?

I particularly held Bruce McPherson in high regard because he combined great intellect and vast knowledge of the law with commonsense and courtesy.

What are your recreational interests?

Walking, dining out with my wife and playing with my four year old grandson.

Is there a “statutory age of senility” for the bar?

I do not believe there is a statutory age of senility for the bar. I was in chambers in Sydney for some time with Tom Hughes QC who was practising into his 80s and doing it well. Each of us needs to be conscious of how well we are functioning.

What are you planning on doing when you retire?

I will have to work that out when I start planning on retirement.

What advice would you give to a barrister commencing practice in Queensland in the next 12 months?

The bar in Queensland these days is very competitive for junior barristers. Try to ensure that you have contacts with solicitors who will brief you. Critically, if you are briefed on something, do the job properly and on time. I should also say that junior barristers should not hesitate to seek assistance from more senior barristers, including silks, in their chambers and elsewhere. My experience has been that the bar remains collegiate in nature. I, and many other senior barristers, are happy to offer advice and assistance.

How do you rate the prospects of the Wallabies in the 2027 Rugby World Cup?

Recent performances suggest that there is reason for hope.

Thanks for chatting with Hearsay.

Thank you.