Toast to the Judiciary

Mr President, Chief Justice and President McMurdo, members of the judiciary, guests, colleagues and friends, I am told that being asked to make this toast to the judiciary is a great honour. From where I stand it looks much more like a potentially career ending opportunity.

From the President’s opening remarks you may realise that I come to be in this position as a result of sweet revenge. A few of you would know that I was indeed admitted to practice as a barrister on the same day as the President Mr Douglas SC, who has placed me in this invidious position. In fact, the President was admitted one before me, as the Barristers Roll will confirm.

Perhaps I might be permitted to digress in this regard.

I can confirm he did lend me the $200 admission fee. It was paid back which had more to do with the amount than my then financial responsibilities: any less I would not have bothered: any more I could not have afforded the repayment.

Our admissions came after we had worked in chambers side by side as judges’ associates for a couple of years. He had worked for his distant relative Justice James Douglas (or Jumbo as he was affectionately called by Richard) and I had worked for the Campbells, firstly Sir Walter Campbell and then DM Campbell J (as they were affectionately called by me).

It may come as a surprise to some that my wants, needs and activities as an associate were somewhat different from those of Richard, indeed the astute amongst you may have noticed I am, frankly, somewhat different from Richard. Richard is bold and confronting; I am shy and retiring. Richard married well… above his station; and I married well… frequently. Richard finished his education in Townsville; I did so at Cambridge.

But I digress, let us go back to our time as associates.

While we both faithfully served our judicial masters while completing our legal studies, I tended to require more recreation than Richard. After about 18 months I did manage to get Richard to come to the then Criterion Hotel for a steak and a couple of beers one lunch time. When we returned, Richard went off to do some errand for his judge.

As I sat satisfied in my associate’s room, the heavy foot fall of Justice Douglas aroused my attention:

“Where’s Richard?”

he said in his characteristic gravelly voice.

Doing the best I could to assist in this tense situation, I indicated that I thought he had gone to the pub for lunch.

Within a few minutes Richard returned, no doubt from his errand, to be greeted by a hissing Justice Douglas with the words that I shall never forget:

“………………..Richard where have you been? You are supposed to be my bloody associate!”

Richard has never forgiven me — although, as is obvious to all, tough love has been good for Richard.

It would be remiss of me not to mention, however, that not only the Bar but also the Bench are lucky to have someone of Richard’s courage, energy and forthrightness to serve as President of the Bar Association.

It is indeed a privilege to be asked to give this toast tonight because of the great respect and affection I have for a number of judges before whom I have appeared and with whom I have enjoyed many extramural activities.

The society of judges has much to recommend it. Why just a couple of days ago I was sharing a couple of beers at the newly refurbished Grosvenor Hotel with my good friend Justice X. We were enjoying the view, when, as luck would have it, we were interrupted by Justice Y.

What followed was an interesting conversation about the finer points of the law of unjust enrichment particularly in its application to modern entertainment venues. I found it edifying.

On a more serious note I, like many of my colleagues at the Bar, remain sincerely grateful for the industry of many judges as, through that industry, it is possible for all at the Bar to advance the cause of justice and, in passing, to earn a decent living!

In this regard through the good offices of my chamber mates Plunkett and Amerena (who sit on the Bar Council) I have been provided with recent statistics in a report from the steering committee for the Review of Government Service Provision (also known as the Productivity Commission). The report makes it clear that in terms of net recurrent expenditure (of tax payers’ money) on the finalization of matters commenced in court, Queensland’s Supreme, District and Magistrates Courts are (with one minor exception) the most efficient of all the Courts in Australia in terms of the cost of disposal of both civil and criminal matters. That is so notwithstanding that Queensland has the lowest number of judicial officers per 100,000 people in the country.

These statistics confirm that, in the main, our judges and magistrates are working hard indeed.

The relationship between members of the Bar and the Bench is of course not always purely at a professional level.

In individual circumstances the relationship between barristers and judges is often personal and involves deep friendships and respect often originating from times shared at the Bar. From time to time it does involve, regrettably but inevitably (probably through the adversarial nature of our profession) rivalries, animosity and occasional disrespect.

It has occurred to me that in making this toast to the Judiciary I should take this opportunity to share with you some of my own personal experiences with members of the Bench over the years. It will remind us all that nothing said or done in Court goes unnoticed — particularly by the young and impressionable.

It would be remiss of me not to mention that Justice Chesterman is to respond to this toast. This is not the first time that Justice Chesterman has had the last say with respect to my submissions. He and I meet regularly in the Court of Appeal where, as tonight, His Honour has the last say.

Perhaps the only difference this evening is, I may be allowed to get out what I want to say without the generally helpful, and certainly prolific, interruptions, which we have all come to know and love in the Court of Appeal.

Justice Chesterman, during a recent conversation suggested that in view of the prevalence of mediation and alternative dispute resolution he might speak of the “missing” judge or the “disappearing” judge. Perhaps in view of the few anecdotes I intend to relate, I might be seen as speaking about not the “missing” judge but the “kissing” judge or the “hissing” judge.

Being in my 50’s, I (like many of you here tonight) have seen judges over nearly four decades. I have seen them kiss, and I have seen them hiss at, the advocates before them.

In early days many of the judges were veterans; many were larger than life, many of them were eccentric; many were very well read; and many of them were charming. Most (but not all) tended to kiss rather than hiss.

In terms of all of those characteristics the late Justice GAG Lucas springs to mind.

I well remember sitting as an associate in the old Full Court one hot summer’s afternoon when the late Trevor Hartigan was appearing for a prisoner pleading an appeal against sentence. Hartigan was attempting to demonstrate that his client was intoxicated, and perhaps not fully in command of his actions as a relevant matter to be taken into account in mitigation of penalty. Some may recall that Hartigan had from time to time a habit of pausing, almost stuttering over words.

On this sleepy Friday afternoon, Hartigan said to the Court:

“And so, and so, and so your Honours, by the time of the offence my client had drunk, had drunk, six stubbies of beer and a bottle of Bodega which shows, which shows…”

At which time Justice Lucas leaned back and said, quite audibly, to Sir Walter Campbell:

“Which shows remarkably poor taste in Champagne.” 

Working with Sir Walter Campbell was indeed a great pleasure, although His Honour was capable of kissing with his wonderful enjoyment of life, he was also capable of hissing.

Let me tell an associate’s tale.

The more senior amongst you will remember the dreadful process of “noting up”. In the dark ages before the computer “on-line” legal research, every few months legal publishers would circulate sheets of small sticky bits of paper to be pulled apart and inserted in law reports indicating that a particular decision had been discussed or followed, affirmed, distinguished or not followed. The process of putting these sticky bits of paper in the reports was tedious and despicable, but judges’ associates (even Richard Douglas who was supposed to be Justice Douglas’ associate) were expected to do it.

My period of associateship with Sir Walter followed associateships by Sir Walter’s late daughter Deborah and his son our colleague Wallace who, because of their filial relationship, seemed to have neglected the tedium of noting up and, to be frank, got away with it.

A few months into my term as associate Sir Walter asked of me: “Hughes, have you got the ‘noting up’ all up to date?”

Thereafter, the conversation went like this:

Hughes to Sir Walter: “Sir Walter do you know why the devil was sent to hell?”

Sir Walter to Hughes: “No, why?”

Hughes to Sir Walter: “For asking questions he knew the answer to.”

At this point Sir Walter hissed words which I found curious coming from a Campbell (and a leader of the Clan to boot!): “You and your bloody Scottish mother.”

In terms of hissing as an associate I also had the educative experience of watching the late Justice Peter Connolly savaging the dapper Des Derrington Q.C. — which was my initial introduction to the notion that the Bar/Bench game did not always involve beer and skittles!

I enjoyed my period as associate very much. I had the privilege of meeting and working with many very worldly and interesting judges, most of whom had served their country during the second war and many of whom, perhaps because the times were less complicated, maintained active interests outside the law which I can’t but help think assisted in their capacity to determine the worldly matters before them.

My first decade at the Bar involved sharing chambers with Sandy Thompson S.C. and Justice White and Chief Judge Wolfe (as they then weren’t). I hasten to add that in chambers there was definitely no kissing and no hissing — only hard work and the occasional glass of champagne on special days such as Justice White’s birthday which (as the Chief Judge often remarked) was an anniversary which had occurred so much more often than her own.

There is much I could say about both those now distinguished women jurists but, as they were not judges at the time, Justice Chesterman would no doubt rule any such stories as irrelevant and “of no assistance“. I will say that I grew up thinking that about half the Bar was (or should have been) women!

Life in Court at the Junior Bar again brought examples of both the kissing and hissing judge. First a hiss.

When I had been at the Bar a few years I had a chamber matter against the Late Bob Douglas QC before none other than Justice Moynihan, whose recent reforms and recommendations have, I understand, done much to endear him to our colleagues at the Criminal Bar. In front of a crowded callover when my matter against Douglas QC was mentioned I informed the Court that the application involved the construction of a particular document to which His Honour, who perhaps had read the file in detail, or perhaps not, responded in hissing tones:

“No it’s not Mr Hughes and if you had read your brief before you stood up you would know that it is not.”

A feeling of complete relaxation came over me. Every barrister fears that he will be professionally maligned, if not publicly defamed, in front of his colleagues because he may have made some terrible error or been otherwise derelict. When, as it did that day, accusations actually arise, all of a sudden the fear leaves one. Didn’t seem that bad after all. The earth did not open up and swallow me, nor did the sky fall.

The interesting and, for me, charming conclusion to this anecdote is that about a week later, after Justice Moynihan had reserved his decision, he delivered reasons for judgment (an occasion, obviously before lunch, at which both Douglas QC and I attended). I won the application (one of the few so I remember it) on the basis of the very construction point that I had been belittled for announcing at the callover. After allowing the application His Honour stood up and was lumbering out of Court when I interrupted him and (echoing the timid voice of Dickens’ Oliver asking for “more”!) asked:

“Your Honour, please could I have my costs?”

His Honour with all the charm of an unhappy Irishman turned to Douglas QC and said:

“I suppose there is no reason why HE can’t have HIS costs.”

There were also many hissing experiences in the early days of the Court of Appeal (now 20 years old and now presided over by a President who is a woman with a remarkable and commendable judicial temperament).

It was not always thus. While President Fitzgerald and Justices Pincus and Davies were all capable of hissing perhaps the most aggressive tactic was that of the then President Fitzgerald involving no sound at all. When faced with a submission he did not like, or with a refusal by Counsel to make some concession, His Honour, as many of you may recall, had a wonderful habit of turning his back to the Bar table so that we were presented with the rear of the judicial chair — perhaps the least attractive aspect of the judicial vision.

Such judicial behaviour contrasted with that of the then Chief Justice Macrossan — a master of gentle persuasion who, when unimpressed with a proposition would enquire whether one had “any other points, perhaps even better ones!” The present Chief Justice, I am pleased to acknowledge, carries on that tradition of appropriate judicial demeanour.

I witnessed firsthand many hissing experiences in the trial courts, particularly at the hands of the notorious McLaughlin brothers, but now let me speak of a kissing experience at first instance.

On a Friday morning pleading guilty before a judge then unknown to me by the name of Nelson Anthony Skoien, I was briefed to appear for an 18 year old girl charged with breaking and entering. She was a heroin addict and tragically, been since the age of 14. She had, shortly before the sentence, found her way onto the methadone programme and was making progress. The concern was to endeavour to ensure that she did not receive a custodial sentence.

With the enthusiasm of a young barrister on a Friday morning (intent on heading to the Milano Restaurant for lunch) I was explaining to His Honour that like Orpheus she had left the underworld of heroin and was making good progress but that if she had to look backwards, or take a backward step involving, for example, the underworld of the prison cell, she would… and before I could finish the sentence His Honour interrupted and said:

“She would lose her Eurydice Mr Hughes. I understand what you are saying, your client will not be receiving a custodial sentence.”

At that point I sat down and thought what an interesting and well read man.

His Honour Judge Skoien and I became friends and enjoyed wonderful times together. We travelled together particularly in France and Ireland, and over the years I have developed a great respect for him both professionally and personally. I appeared before His Honour often in the Planning Court and, to this day, I am left with the impression that there were cases which I perhaps should have won but didn’t because His Honour was very keen to ensure that, notwithstanding our friendship, I was suitably professionally chastened from time to time by hissing out unfavourable decisions!

I might add there are judges in the Court of Appeal who attend to the very same chastening without regard to any particular level of friendship.

Ultimately of course, being a sensitive soul, His Honour Judge Skoien kissed me (perhaps the kiss of death) by saying one day:

“Hughes, we have eaten together, we have socialised together, we have travelled together, we are quite good friends now. I am thinking of disqualifying myself from matters in which you are appearing.”

In an immediate horrified response I exclaimed:

“For God’s sake don’t do that – the judges that hate me don’t disqualify themselves!”

God willing, in the future there will be maintained a formal friendship between the Bar and the Bench, particularly when those institutions are in the custody of the likes of the present Chief Justice and Mr Douglas S.C. There will also be less formal friendships between barristers and judges.

Inevitable there will be animosity too. Such is the nature of an adversarial system which by its nature is imperfect — only because it exists to serve imperfect creatures and, let us be frank, because it is manned by, generally well-meaning, but imperfect creatures — all of us here tonight.

If I may, in conclusion, be permitted a few gentle observations.

In this era the law and legal processes are under attack:

(a) first, by a media which is more interested in short term sensationalisation, than even a medium term search for the truth; and

(b) second, by Governments which by their actions (particularly underfunding) fail to recognize the importance of a well run and respected Court system.

At the risk of sounding like an aging black soul singer it seems to me that it is important that the relationship between the Bar and the Bench, in such times, be built on respect.

At this point I should probably burst into a few lines from the song made famous by Aretha Franklin of the same name, but I won’t (although I don’t wish to discourage Justice Chesterman from singing or dancing as part of his act).

As part of that matrix of respect, all I ask of you, the members of the Bench here tonight, is that you bring to your presence in court not just a firmness to protect the resources of the Court and dispose of matters quickly but also a special patience and a judicial bearing.

There is no good reason for judges not to act with politeness as well as firmness.

Most of you have reached your position because of your undoubted intellectual capacity and legal knowledge. Some of us at the Bar, doing the best we can, cannot necessarily emulate those qualities.

As I said to some colleagues recently, I am often put in mind of those wonderful opening words of F. Scott Fitzgerald’s “The Great Gatsby”:

In my younger and more vulnerable years my father gave me some advice that I have been turning over in my mind ever since.

“Whenever you feel like criticizing anyone” he told me, “just remember that all the people in this world haven’t had the advantages that you’ve had”.

There is no doubt in my mind that the best results, in terms of serving the true interests of the community which relies upon the legal system under which we operate, are likely to be wrought through cooperation between the Bar and the Bench.

I think, in the adversarial system in which we work, the intellectual process is better served by the Bench, attempting to assist competing counsel to refine the competing arguments to their highest form, rather than denigrating one or other, or both, of the arguments without some careful, albeit perhaps limited, investigation.

It is when arguments and propositions undergo scrutiny by such an interactive process, conducted with civility, that they can be properly refined and then properly exposed – revealing their merits and their inadequacies.

That said, there is no doubt that the barristers of Queensland are lucky to have hard working judges and magistrates to assist us look after and defend our clients’ rights and interests (and to feed our families!)

Ladies and Gentlemen I ask you to be upstanding and toast our friends the Judiciary.