THE BAR ASSOCIATION OF QUEENSLAND
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Issue 98: December 2024
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In September 2019 the Bar Association of Queensland will send another volunteer delegation to teach at the Legal Training Institute of Papua New Guinea in Port Moresby. The team will teach at the 7th Commercial Litigation Workshop, as part of the professional legal training course for law graduates and future lawyers of Papua New Guinea.

The five day Workshop has been conducted each year since 2013. This year, the workshop will be conducted between 2 September and 6 September 2019, with classes and exercises in commercial litigation over the first four days. The fifth day is devoted to criminal law and litigation.

The team has always been well received at the Legal Training Institute of PNG and the Association is grateful for this opportunity to share experiences in the law with the future legal practitioners of Papua New Guinea.

The team this year will be led by Andrew Crowe QC, and will be accompanied by three judges, including Justice Logan of the Federal Court of Australia, who has joined the delegation from the Queensland Bar each year. The full Queensland team is:

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On Monday 5 August 2019 Carl Heaton QC, as the Bar Council representative of the Bar Association of Queensland, announced the new barristers to the Honourable Catherine Holmes, Chief Justice of the Supreme Court of Queensland.

“May it please the Court. I have the pleasure of announcing the following practitioners present in court today have become barristers of the Supreme Court of Queensland since 7 November 2018 to 2 July 2019.

Mr Philip Michael Nolan Ms Chau Bich Donnan Ms Rachael Claire Taylor Mr Thomas Frederic Ritchie Ms Iris Gajic-Pavlica Mr San-Joe Tan Ms Sophie Jane Gibson Mr James Anthony Hughes Mr Daniel David Steiner Mr Jason Jean Ternel Dudley Mr Justin Sebastian Byrne Ms Gillian Shepherd Mr Robert Gabriel Gallo Ms Danielle Lu En Tay Ms Halley Tenielle Robertson Mr William Robert Pike Prizeman

I am pleased to commend each of these barristers to the Court.”

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Marshall Cooke RFD QC

Presented by Justin Byrne

Nelson “Marshall” Cooke, known to most simply as “Marshall”, was admitted as a barrister in 1962 — the year of the Cuban Missile Crisis and also the year of the tragic death of film icon Marilyn Monroe. Closer to home in 1962 the Honourable Sir Own Dixon sat as Chief Justice, Robert Menzies was Prime Minister and Rod Laver won the French, Australian and US Open Titles and Margaret Court, not to be outdone repeated those same feats, French, Australian and US Opens.

Remarkably that was some 57 years ago now, the year when Marshall Cooke first graced the Queensland Bar with his eloquent nature.

Marshall has, over time, developed something of a multi-practice in the areas of Constitutional and Administrative, Property, Planning and Environment, Commercial, and Criminal Law and Marshall was appointed Silk in 1980.

He was also an Officer in the Royal Australian Navy and retired having attained the Rank of Commander and obtained the honour of receiving the Reserve Forces Decoration for his service. He has appeared in many military tribunals (including courts-martial) and inquiries, and whilst serving was in fact appointed as both a Defence Force Magistrate and also as Judge-Advocate in the Australian Navy.

In the mid to late 1960’s Marshall was elected and served as Councillor with the Pine Rivers Shire Council and was then subsequently elected Federal Member of Australian Parliament (Petrie) in 1972, and thereafter, sat as a Member of Joint Committee on Self-Government for the Australian Capital Territory.

Amongst Marshall’s many other achievements are being appointed Commissioner to inquire into financial and electoral corruption in Queensland Trade Unions in the late 1980’s and then Chief Commissioner appointed to inquire into the Privatisation and Sale of Papua New Guinea Banking Corporation in 2002.

Marshall has also held many other professional positions over the years including:

Amongst Marshall’s many hobbies and interests, he has in a former life represented Queensland in a winning Debating team when he was at the University of Queensland, and also found time to represent Queensland as a water polo player in the National Championship.

He was the Treasurer and later Chaired the Queensland Swimming Association not long after coming to the Bar, and notably, for his long association with Queensland Water Polo, he was duly awarded a Life membership of the Queensland Water Polo Association.

Marshall has had a long and distinguished career at the Bar. He has seen many aspiring young barristers come and go in that time, and has seen many changes in how we perform our roles from an administrative perspective. Life may well appear to have become somewhat complicated at times in that respect, but the reality is that whether it be 1962 or present day, 2019, the barrister’s role still requires the same certain attributes including:

These are things that Marshall Cooke has now done well for more than half a century, truly remarkable!

Can you all please join me in recognising Marshall Cooke for his outstanding contribution to the Queensland Bar and the fact that he survived more than 50 years in that regard!

John Gallagher QC

Presented by Sophie Gibson

There is a simply stated theme in John’s time at the Bar, the message is that real friendship is precious and that the bedrock of friendship is loyalty. It is a short credo, but it takes a deal of discipline to act by it.

No biography of John, no matter how brief, could be complete, without mentioning that his nickname is well known as “the Crocodile” or to those affectionate to him, “the Croc”. It is said that he will bite and not bark.

John, also known as “Gall”, was admitted to the Bar in March 1964. Gall did not start in an elite building. He first practised from rooms that were dubbed “Outs of Court”, before he was then able to purchase a room that became available in the actual Inns of Court, but the reality was that the junior Bar was only a group of about 50 barristers at that time, most of whom had served in the second world war, in different theaters.

Junior members would regularly gather together in the common room of the Inns of Court for luncheon provided by Bruno and his wife. Judges would regularly join these lunches on a Friday. Every barrister was very welcome to attend and to sit and discuss the gossip and news of the day. It was a very collegiate place.

The old Supreme Court building burnt down in 1968. When the new courthouse was built it had the then very modern feature of air conditioning. Fees were calculated as a fee on brief with subsequent “refreshers”. Time charging did not exist.

John found that appearing with great Silks was a tremendous learning experience. He appeared with some greats, including Gerard Brennan QC, Cedric Hampson QC and Dan Casey. He remembers Cedric Hampson QC, not just as being the finest practitioner of his era, but as also being a great leader and a great man.

John suffered a deep sadness in the very sudden and unexpected death of his first wife, Wendy, at a time when they had four young children. He remembers and cherishes the friendship of many colleagues who took care of him at that time. One of these was Cedric, another was Ian Callinan, both of whom showed him true friendship by their conduct.

Cedric gave John an instruction about a principle of legal practice. It was that one should never start a fight, but that if someone started a fight with you, you had to finish it. While John adhered rigidly to that principle it is fair to say that he actually did not need any instruction from Cedric about it. He has never thought the Bar is a place for the faint hearted and he believes in fearless advocacy. He also believes that no one should expect a prize for working hard or being intelligent. These are “givens”, as he says.

After many years at the Bar it is friendship and character that remain as the only important values to him. He has seen many great barristers and Judges come and go but good friendships have endured. As John became more senior and took Silk a new chapter of his life at the Bar opened up. I am told that one characteristic of the later years of his career was his encouragement of younger barristers. He saw that encouragement as a natural and enjoyable responsibility of a senior barrister, and as the way the Bar is meant to work.

John eschews the practice of barristers telling war stories that only reflect well upon themselves. It is boring for one thing, and also leaves out the other half of reality, which can be amusing and instructive, namely the stories where things do not go well for us. One of the features of being a friend of John’s is enjoying his great sense of humour, self-deprecating remarks, and his philosophical insights, often delivered with the witty turn of phrase of a keen observer of human nature.

And despite his many happy years at the Bar, John has never been so happy as he is now in retirement, enjoying the love and company of his delightful wife Susan.

Please join with me on congratulating John Gallagher on more than 50 years as a practicing barrister.

Lister Harrison QC

Presented by Rachel Taylor

Lister was born on the 1st December 1944. The youngest of four children, his father had been at the Bar and then went on to become a lecturer in law at the University of Queensland. His mother had lectured there too, in the English Department.

Lister’s mother died in 1945, and his father then died in 1966, which in fact led to him marrying Gailene later that same year, rather earlier he says than would otherwise have happened, since he states that in those days it would have been scandalous for them to live together whilst unmarried.

Lister and Gailene went on to have three children and six grandchildren, all of whom still live in relatively close proximity to their parents. Lister himself attended Church of England Grammar School (now called the Anglican Church Grammar School) Brisbane. Between 1967 and 1968, Lister was Mr Justice Gibb’s associate. He followed his Honour Justice Gibbs from the Federal Court of Bankruptcy sitting in Sydney and Melbourne, to the Supreme Court of the Australian Capital Territory sitting, of course, in Canberra.

Whilst living in Sydney, Lister was able to take advantage of his dual residence to “straddle the dingo fence”, and get admitted in both Queensland and New South Wales. However, when Lister’s associateship finished and upon his return to Brisbane, he then developed a practice principally in crash and bash and legal aid maintenance.

Also, by the time of his return to the Queensland Bar, Lister had noticed that the Barristers seemed to make real money from trials and barristers had a disinterest (at least at that time) in writing opinions. So, he duly adopted the strategy of producing a satisfactorily profitable opinion practice. In 1983, he took Silk.

After a few years at level 17, of the then MLC, Lister set up chambers by himself on level 12 of that same building. When the accountant occupying the space next to him was sent to jail for tax fraud, and that space became vacant, Lister was approached by the now Australian High Commissioner to the UK and former Senator and Attorney General, George Brandis, amongst others, to establish a new group on that floor. These are the chambers that have continued in one form or another to become today’s Gibbs Chambers at No 95 North Quay. David Russell QC, a long-time member of that group and devoted fan of Lister’s, apologises for not being with Lister to celebrate tonight.

Lister’s practice at the Bar has taken him on many travels, including to Johannesburg — for the South African rebel cricket tour, in breach of anti-apartheid sanctions. In the inevitable litigation that followed, when the then Foreign Minister, Bill Hayden, refused Lister’s clients’ visas to come to Australia, Lister and the other lawyers (who included Stephen Charles QC and Peter Heerey of Melbourne) had to travel to Johannesburg to take instructions.

Again, although Lister was briefed extensively for one particular developer involved in the home unit litigation that fed the Bar in the earlier part of the 1980s, much to his consternation he had to return the brief for that client in order to fulfil a promise to Gailene’s mother to take her and the family on a Pacific cruise. But by doing that he avoided the indignity of having to tug the forelock to the representatives of a foreign power when that client’s litigation ultimately ended up before the Privy Council.

However, his attitude to the Crown is now somewhat similar to his attitude to his appendix, that is if it’s not playing up, then best leave it alone. Lister was offered a Centenary Medal in 2001 for “services to the law”, but politely declined the offer.

Lister’s wife tells us that he comes from a long line of spendthrifts to the extent that, for example, in Aesop’s fable of the ant and the grasshopper, he has always sided with the grasshopper. Nevertheless, he advises that he has promised faithfully that once he has paid his current tax bill, he will definitely start saving for his future retirement.

And perhaps consistently with his hopefully new-found frugality, tonight he is wearing a dinner jacket that his father had made for him by Christison and Burnett, High Class Tailors, of the Commercial Union Building, Eagle Street, the typed label in the inside pocket of which bears the date March 1963.

Please join me in congratulating Lister Harrison on his outstanding service as a barrister of more than 50 years standing.

Ian Hanger AM QC

Presented by San-Joe Tan

Ian was called to the Bar in December 1968.

It was an interesting bunch: Lister Harrison QC, Angus Innes, Justice Richard Chesterman, Justice Bob Douglas, Bob Hall, Judge Gary Forneau, Kevin Martin and Judge Philip Nase.

Ian spent 1969 and 1970 in London attending operas, plays, ballets and concerts, working in Lavender Hill, serving in the Royal Green Jacket Regiment and making the acquaintance of a certain Mr McKenzie — whom the world thinks — he befriended. He would deny that, but it resulted in a certain famous case.

After returning overland to Australia — doing some devilling in Hong Kong on the way — his first case was a dividing fences matter. Totally bamboozled by a subject that they didn’t teach in law school, he consulted his master soon to be Justice Bill Pincus — then a successful junior. Bill’s sound advice was that there was actually an Act of parliament called the Dividing Fences Act and perhaps it would be a good idea to start there. Ian did just that.

In those days he cut his teeth with Justices Fryberg, Chesterman, Harrison, and Spender valiantly fighting about $500 claims. Together, and headed by George Fryberg; Richard and Ian began Moore Chambers in the then Ansett Centre.

Subsequently they moved to the level 17 of the MLC Building with Harrison, Pincus, Thomas, Glen Williams, Richard and David Cooper, and David Robin, Jeff Spender and Brian O’Donnell

In 1976, Ian had the privilege of going to the Privy Council as junior to Bruce McPherson and appearing against John Macrossan leading Bill Carter leading Jonathan Sumption. Sometime thereafter, his wife tried to persuade him whilst they were in London, to look up his old client Mr McKenzie whom he had made famous but he didn’t seem inclined to do so.

In the seventies, he accepted and enjoyed doing a great deal of private prosecution work in the District Court and, as a prosecutor, referred in glowing terms to Jack Kimmins DCJ.

Ian enjoyed being in a number of matters with the Solicitor General for Australia Sir Maurice Byers and in that role worked with Bill Gummow and Bob French, both of whom of course went on to became Justices of the High Court. When Mabo was just a letter before action, Sir Maurice, Bob French and Ian spent a full week in conference discussing land rights cases in order to advise the then Commonwealth Attorney General.

Ian was also involved with Bill Pincus in advising on liability in the Agent Orange litigation and in respect of the Commonwealth’s liability arising out of the Maralinga Atomic bomb tests.

In one matter, Warman v Dwyer, he was soundly thrashed by Danny Gore in the High Court and his wife says she is still traumatised about it. This may account for any odd conduct you might have seen throughout the last 20 years.

In 1988 he was Chair of the Committee of Inquiry into the Industrial Relations System in Queensland and his report was praised by both unions and employers. He was senior counsel assisting both the Parliamentary Judges Commission of Inquiry and the Inquiry into the Criminal Justice Commission. As if those inquiries were not enough, he was the commissioner for the Royal Commission into the Home Insulation Program.

He has been an adjunct professor at the University of Queensland and has been made a permanent honorary professor at Bond University.

In 1990 he began mediating — 2,000 mediations later is where he is today. To be fair he is something of an expert, having led workshops in London, Edinburgh and Hong Kong and given talks in many other countries too. As recently as this month he was invited to give a paper at the Malaysian ADR conference. He is a mediator for the Court of Arbitration for Sport and an arbitrator for the Chinese International Economic and Trade Arbitration Commission and is conducting an arbitration in Beijing in November.

At the end of last year Griffith University conferred on him an Honorary Doctorate. He has not retired, and we are reliably informed that his wife won’t let him. She often reminds him of Bert Klug’s wise advice “Life is like riding a bicycle. If you stop pedalling, you will fall off”.

Please join with me in congratulating Ian Hanger on more than 50 years as a barrister in Queensland.

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Several members of the Queensland Bar recently attended the Australian Bar Association’s international conference in Singapore on 11 and 12 July.

The program consisted of both plenary sessions and smaller streams exploring a diverse range of issues from consideration of the need for an international commercial court for Australia to cross-border insolvency and third-party litigation funding.

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The conference was opened by a joint address by the Honourable Chief Justice Kiefel AC of the High Court of Australia and the Honourable Chief Justice Menon of the Supreme Court of Singapore. Their Honours spoke about the common legal heritage of Australia and Singapore as well as the developing institutional bonds between the courts and legal professions of both countries.  Engagement by the Bar as a whole with the broader profession and in the region was a focus of the conference. Sessions including a panel of senior in-house counsel, issues in international arbitration and the report prepared by the Honourable Roger Gyles AO QC on opportunities for Australian barristers in international arbitration. There was a strong feeling among presenters that Australian counsel were under-represented in international arbitration work compared to other overseas lawyers, and particularly members of the London bar.

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Practical skills and practice development were also covered across the conference, including sessions on ‘the seven deadly sins of oral advocacy’, digital practice management and expert evidence. Junior members of the bar were particularly appreciative of the opportunity to sit down with senior counsel from around the country at a ‘meet the silks’ session.

Contributions by Queenslanders to the program were well received, with presentations by Peter Dunning QC (anti-suit injunctions), Cate Heyworth-Smith QC (a comparative discussion of ethics in advocacy) and Kathryn McMillan QC (expert evidence – 21st century challenges).

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Convergence 2019 concluded with a black tie dinner (with big band) at the magnificent Clifford Pier, capping off a lively program of social events which also included arrival rooftop drinks and a welcome event at the National Gallery of Singapore.

Conference chair Dominique Hogan-Doran SC and her team deserve congratulations for putting together an engaging and comprehensive program. From Singapore, the ABA National Conference returns home, being co-hosted by the Queensland Bar in combination with our annual conference.

Save the date: 2020 BAQ ABA Conference, 5-7 March 2020, W Hotel Brisbane

Jules Moxon, Barrister 

The inaugural Indigenous Law Student Program commenced on 8 April 2019 with the successful student, Ms Charlotte Batterham, attending the first component of a three tiered internship scheme. The Program is designed as an introduction to life at the Bar, encompassing three weeks experience with the Courts and in Barristers’ chambers. A joint initiative of the Bar Association of Queensland in partnership with the Queensland and Federal Courts, the program provides an innovative and solid foundation to support Indigenous law students with the intention to increase the number of Indigenous Barristers at the Queensland Bar.

Ms Batterham spent her first week at the Federal Court under the guiding hand of the Honourable Justice Collier. An intensive schedule included an introduction to the Registry of the Federal Court and the Federal Circuit Court with case managers, involvement with the Federal Court Native Title team and time spent in Court with Justice Collier and Justice Jarrett. The program, structured by the Court, included an in-depth examination of how a case progresses through the Court system­—from new online e-lodgement to final judgement.

At the Supreme Court, Charlotte’s second week involved attending Court every day, including observing applications, a civil trial and a criminal trial. Each day the immersive experience concluded in a debrief with the Honourable Justice Phillipides, who provided context and insight into the day’s proceedings.

Ms Batterham described the program as an invaluable experience:

“It is often said, we don’t know what we don’t know until we know it, and how true it is after experiencing a week of seeing our Courts in action. Seeing behind the scenes of the Federal Court and the Supreme Court, along with attending Court, bought together all of the pieces of knowledge learnt while undertaking my law degree.”

The final component of the program, a week in Barristers’ chambers, will take place in the university break in September. The program aims to bring the theoretical learning of study to the real world, crossing a range of legal areas, dependent on the candidate’s interests. Access to the legal system, accompanied with the opportunity to meet and experience the everyday routine of Barristers and the Judiciary, provides the opportunity to break down barriers for Indigenous law students who may be considering life at the Bar.

Ms Batterham encourages other Indigenous law students to apply for the program. “I am grateful I had support to gently nudge me to apply for the opportunity,” she said.

“The Judges and their associates are impressive people, dedicated, genuine and supportive. As Mark Twain says ‘It is noble to teach oneself, but still nobler to teach others’.”

Application for the 2020 Indigenous Law Student Program close on 30 September 2019.

The Association would like to express its thanks to Justice Collier and Justice Philippides for their Honours’ contribution and assistance in making the program such a success.

Nadine Davidson-Wall 

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A.K.A. Mullenjaiwakka

6 April 2019 saw the passing of Australia’s first Indigenous barrister, Lloyd Clive McDermott, also known as Mullenjaiwakka. John Fraser wrote this tribute to Mullenjaiwakka after joining family, friends and colleagues at the celebration of Mullenjaiwakka’s life at Randwick Golf Club on 16 April 2019.

 

Mullenjaiwakka

11 November 1939 — 6 April 2019

It is with great sadness that I write this tribute to the great man, Lloyd McDermott, a.k.a. Mullenjaiwakka, who passed away on 6 April 2019.

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Lloyd was born in Eidsvold in 1939. His father, Clive, worked as a farm labourer. His mother, ‘Aunty Vi’, instilled in Lloyd the need to apply himself.

In 1955 Lloyd’s parents, having saved the necessary money, were able to send Lloyd to Church of England Grammar School (Churchie). It should be noted that Lloyd’s parents were not people of means. Lloyd eventually was awarded an academic scholarship and so was able to finish his schooling at Churchie.

Lloyd was a brilliant sportsman, excelling in all sports, but particularly prominent in Rugby and Athletics. From Churchie, Lloyd went on to study at the University of Queensland. Again, he was prominent in Rugby and was a member of a very successful first-grade team that won a number of premierships. He represented Queensland and, in 1962, was selected to play for the Wallabies against the All Blacks. He was the first Indigenous man to achieve such selection.

In 1963 Lloyd was a certain selection to tour South Africa as a member of the Wallabies. However, Lloyd effectively ruled himself out of selection when he refused to accept “honorary white” status from the South African Government. The man of unfailing principle could not, and would not, accept such a title.

Lloyd later went on to study law and, in 1972, was admitted to practice as a Barrister. Lloyd was Australia’s first Indigenous person to be admitted as a Barrister.

Lloyd worked for a time at the Commonwealth Deputy Crown Solicitor’s office and then, in around 1976, went to the private Bar in Sydney. He practised mainly in criminal law and developed a very busy practice. In recent times, Lloyd was a member of the Mental Health Tribunal of NSW.

In addition to his legal work, Lloyd had a great love of music, reading and travel.

Another one of Lloyd’s great achievements was the establishment of the Lloyd McDermott Development Team, which has helped many young Indigenous men and women play Rugby and Netball. He also had a broader programme of supporting and encouraging young Indigenous persons in their educational pursuits.

Lloyd was a great family man. His two daughters, Phillipa and Judy, are testament to his love and warmth as a father.

I was fortunate enough to attend the Funeral Service for Lloyd on 16 April 2019. It was an inspiring occasion, which lasted about 3 hours and had as its backdrop the beautiful coastline around Malabar (Sydney).

It is very difficult to adequately sum up the life of someone such as Lloyd. He was a trailblazer, in many ways. He was highly successful, but always maintained an air of humility and kindness. His success was even more stunning given the times from which he emerged. As a sidenote, it is remarkable that Lloyd did not start school until he was 11 years old, as Aboriginal children were not allowed to attend school in his town.

Vale Lloyd McDermott, Barrister, activist, sportsman and family man. The world is a sadder place for your departure.

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John Fraser, Barrister

View Propensity Evidence Reform paper

View the Commentary of Benedict Power

By coincidence, the day after the Current Legal Issues Seminar on propensity evidence the Court of Appeal handed down R v Dewey [2019] QCA 161 which affirmed the correctness of the admission of certain propensity evidence. The decision is an illustration of the liberal application of the Pfennig test by the Court of Appeal of Queensland that Professor Hamer commented upon in his paper.

In R v Dewey , the indictment contained three counts of armed robbery of service station attendants that were alleged to have been committed by the appellant. Two of the robberies occurred on the one night two hours apart, one at Beenleigh and the other at Mt Gravatt. The third robbery was committed eight days later at Coorparoo.

The robberies were similar in that they all involved a man entering a service station late at night and then demanding money from the lone attendant at knife-point. The CCTV from each robbery showed that a similar looking person had committed each of the three robberies, but could do no more than that.

There were some differences in the robberies. In the first robbery, a bandana was used to disguise the robber’s face after he had initially entered the store. In the second robbery, the robber did have a bandana around his neck and was wearing similar clothing to the robber in count 1, but he did not attempt to disguise his face. In the third robbery, the robber did not have a bandana and he did not attempt to cover his face. The most unusual feature of the robberies was a blue coloured knife being used for robberies 1 and 3. That unusual knife was not observed in robbery 2.

The appellant had been caught soon after the third robbery in grey ute that was consistent with the getaway car for the third robbery. He was in possession of a significant quantity of cash, clothing that matched that used by the robber and a blue coloured knife. Therefore, there was a strong case in relation to the third robbery.

The Crown case at trial was if the jury were satisfied of the appellant’s guilt on count 3, then they could use evidence of the appellant’s commission of that armed robbery, in combination with the cross-over of similar features between the robberies to determine that the appellant had also committed the other two robberies eight days earlier.

McMurdo JA (with whom Gotterson JA and Douglas J agreed) held that a proper application of the Pfennig test permitted the jury to use the evidence of the three robberies in that way. McMurdo JA also noted that the model directions in Bench Book direction 52 had not been given. The absence of that direction was not an appeal ground and the Court held that defence counsel had made a considered forensic choice not to seek such a direction and no miscarriage of justice arose.

Benedict Power, Barrister

The 2019 Mullenjaiwakka Trust Fundraising Event provided a fitting opportunity to acknowledge the passing of Lloyd McDermott, known as Mullenjaiwakka, amongst our Queensland legal community. Held on 20 June 2019, over 70 guests, comprising judges, barristers, law students and members of the profession, attended the mild winter evening at the Supreme Court Coffee Club.

Under the guidance of MC Lincoln Crowley QC, guests were delighted to hear Mrs Judy Barnes, Mullenjaiwakka’s step daughter, regaling stories of growing up with Mullenjaiwakka. While Mullenjaiwakka was known for his successes in court and the rugby field, Mrs Barnes provided inspiration for the Indigenous law students in attendance with personal stories that demonstrated Mullenjaiwakka’s resilience and strength of character in adversity.

The Association provided the opportunity for Indigenous law students to be sponsored by members to attend the evening. With assistance from the universities, a record number of students attended and had the chance to meet and talk with Judges from all jurisdictions, along with barristers and other legal professionals.

This annual event is funded by the Association with the proceeds directed to the Mullenjaiwakka Trust to provide initiatives for Indigenous and Torres Strait Islander peoples.

Donations to the Mullenajiwakka Trust can be made by contacting the Bar Association, 07 3238 5100. All donations are tax deductible.

Many excellent articles and presentations have been written or given touching upon Donoghue v Stevenson [1932] AC 562. The attention so given is entirely appropriate. The decision, especially Lord Atkin’s judgment, has been cited on countless occasions and has had a profound influence on Anglo-Australian law. But it is also worthwhile to spare a moment to reflect on a decision cited by the House of Lords in Donoghue v Stevenson, and the Judge behind that decision. The decision was MacPherson v Buick Motor Co, 217 NY 382, 111 NE 1050 (NY 1916), and the Judge behind it was Justice Benjamin N Cardozo.

In MacPherson v Buick Motor Co, it was held by the influential New York Court of Appeals in 1916 that a manufacturer of an automobile owed a duty of care in tort to a consumer injured whilst driving the vehicle, notwithstanding the absence of privity of contract.

First, a little about the man, Benjamin Cardozo.

Life and career of Cardozo J

B enjamin Nathan Cardozo, of Sephardic Jewish/Spanish-Portuguese heritage, was born in New York City on 24 May 1870 to Rebecca Nathan and Albert Cardozo. He had a twin sister, and they had four other siblings. His grandfather had been nominated a Justice of the New York Supreme Court, but died before he took office. Benjamin Cardozo’s own father was in fact a New York Supreme Court Justice, but he resigned amidst a judicial corruption scandal. This had a profound effect on Benjamin, who was determined to restore his family’s name.

Benjamin’s mother died in 1879, when he was still quite young.

At age 15, Cardozo attended Columbia College, where he earned his Bachelor’s degree followed by a Master’s in Political Science. Then, in 1889, he attended Columbia Law School. He was by all accounts a brilliant student. After two years there, he passed the New York Bar exam in 1891 and began practising law in New York City alongside his brother. He remained in practice with Simpson, Warren and Cardozo until 1913. He gained an esteemed reputation in commercial law.

In 1913, having practised for about 23 years, Cardozo was elected to a 14 year term on the New York Supreme Court, due to start on 1 January 1914. But in February 1914, he was appointed as a temporary Judge on the New York Court of Appeals, the State’s highest court. In 1917, Cardozo J became a permanent member of the Court of Appeals. In 1926, he was elected to a 14 year term as Chief Judge of that Court.

After having served 18 years on the Court of Appeals, Cardozo CJ resigned in 1932 to take up an appointment as an Associate Justice of the Supreme Court of the United States. Even though he was a Democrat, he was appointed by the Republican President, Herbert Hoover. His appointment was met with universal acclaim. The Senate confirmed his appointment by a unanimous vote.

Cardozo J was on the US Supreme Court for six years, supporting a number of Franklin D Roosevelt’s New Deal initiatives, as a member of the so-called “Three Musketeers” along with Justices Brandeis and Stone.

He suffered a heart attack in 1937 and a stroke in 1938. He passed away, aged 68, on 9 July 1938, in Port Chester, Rye, New York State.

He had never married. He was a modest man of high principles, loved by his colleagues.

In addition to his many influential judicial decisions, he was a prolific extra-judicial writer. Amongst other works, he is particularly renowned for his work “Nature of the Judicial Process” (1921), designed for judges but which is standard reading for American law students.

MacPherson v Buick Motor Co

Donald MacPherson’s 1911 Buick collapsed on the road to Saratoga Springs when he was driving just 8 miles per hour. He was thrown out and injured. One of the wheels contained defective wood, and the spokes had “crumbled into fragments”. Mr MacPherson had bought the Buick from a retailer. The retailer had bought the car from Buick Motor Co. Buick Motor Co was the manufacturer of the vehicle, though it had purchased the wheel as a component part from Imperial Wheel Co of Michigan. There was evidence that the defect could have been discovered by Buick Motor Co had it carried out a reasonable inspection. The Supreme Court held that Buick Motor Co was liable in negligence to Mr MacPherson, which decision was upheld by the Supreme Court Appellate Division. By majority, the Court of Appeals held that the decision of the Appellate Division should be affirmed.

Previously, it had been the rule in New York, based on the English decision of Winterbottom v Wright (1842) 10 M & W, 152 ER 402, that a manufacturer’s liability for negligence only extended to purchasers with whom they were in privity of contract. That English case concerned a horse drawn carriage. The New York cases recognised an exception to that rule, where the product was “inherently dangerous”, the leading example of which was a case concerning poison which had been wrongly labelled as dandelion extract: Thomas v Winchester, 6 NY 397 (NY 1852). But as the trial judge had summed up to the jury in MacPherson v Buick, “an automobile is not an inherently dangerous vehicle”. The then Chief Judge also noted in dissent that an automobile moving at only 8 miles an hour “was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed”.

In MacPherson v Buick, however, Cardozo J, in delivering the leading judgment, closely analysed the cases said to be authority for the exception, pointing out the inconsistencies and uncertainties to which the exception gave rise, and the illogicality of the distinction between products inherently dangerous and those which were dangerous because of negligent construction. He also referred to the need of the law to keep a-pace with developing technology. He considered that what those earlier cases in fact decided needed to be re-visited. He said:

“The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser… We hold, then, that the principle of Thomas v Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable… There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer… If he is negligent, where danger is foreseen, a liability will follow.”

His Honour found those factual matters to be made out in that case. Cardozo J observed, “The dealer was indeed the one person of whom it might be said with some approach to certainty that, by him the car would not be used.” He noted more generally that “it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered.” But proximity or remoteness were not a problem in the instant case when the above mentioned factors were present.

These pronouncements do not seem all that remarkable to the modern day Anglo-Australian lawyer.

Donoghue v Stevenson

It is not surprising that MacPherson v Buick should have been referred to, and cited by, the House of Lords. MacPherson v Buick was the first common law case dealing with the product liability owed to a consumer by a manufacturer of mass produced products and upholding a duty of care in negligence.

Lord Atkin had this to say (at pages 598-9):

“It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-beer bottle in the United States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardozo J in MacPherson v Buick Motor Co in the New York Court of Appeals, in which he states the principles of the law as I should desire to state them, and reviews the authorities in other States than his own. Whether the principle he affirms would apply to the particular facts of that case in this country would be a question for consideration if the case arose. It might be that the course of business, by giving opportunities of examination to the immediate purchaser or otherwise, prevented the relation between manufacturer and the user of the car being so close as to create a duty. But the American decision would undoubtedly lead to a decision in favour of the pursuer in the present case.”

This was high praise indeed.

The qualification by Lord Atkin in the penultimate sentences in that paragraph was unnecessary, because Cardozo J indicated at several points in his judgment, that the principle would not apply if there was, and was known to be, a reasonable opportunity for intermediate examination or examination before use.

Lord Atkin then continued to state the principle as it applied to English and Scots law (at page 599):

“… a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.

This was masterful in its reduction of the principle to one sentence.

Even if Lord Atkin only “drew support for his own approach” [1] from MacPherson v Buick, the latter decision still had an influence on the result as is evident from Lord Atkin’s glowing praise.

Of course, there is much more to Lord Atkin’s speech than a statement of and upholding of the principle of a manufacturer’s product liability to a consumer. It has been pointed out there are similarities between Lord Atkin’s neighbour principle and the judgment of Cardozo CJ in the case of Palsgraf v Long Island Railway Co, 248 NY 339 (1928). [2] But it is unlikely Lord Atkin was aware of that case, as Palsgraf was evidently not cited in argument, and it is not referred to in any of the judgments, in Donoghue v Stevenson.

Moving on to other Law Lords, the above passage from Cardozo J’s judgment was set out by Lord MacMillan (one of the other majority Judges in Donoghue v Stevenson) at [1932] AC 562, 617-8. That also speaks volumes.

Lord Buckmaster, in dissent in Donoghue v Stevenson, distinguished MacPherson v Buick on the basis that it was a decision that “a motor-car might reasonably be regarded as a dangerous article”: [1932] AC 562, 577. Lords Atkin and MacMillan did not agree with that interpretation of MacPherson v Buick, with Lord Atkin referring (as had Cardozo J) to the illogicality of the distinction between a thing dangerous in itself, and a thing which becomes dangerous by negligent construction (see pages 595-6 of [1932] AC). The fact that Lord Buckmaster felt the need to distinguish a decision from another jurisdiction is testament to the force of its reasoning.

Whether Cardozo J expanded the exception in Thomas v Winchester or laid down a new principle altogether does not matter. They are one and the same thing as a matter of practice. Cardozo J so expanded the “exception” to the point where the privity rule, if not “cut out and extirpated altogether”, was “left with the shadow of continued life, but sterilized, truncated, impotent for harm”: Nature of the Judicial Process, pp98-9.

Cardozo J’s legacy

What is remarkable about MacPherson v Buick Motor Co is not only the significance of what it decided, and the fact that it was the first case to so decide. It is also the fact that it was decided in 1916 barely two years after Cardozo J’s appointment to the Court of Appeals, whilst he was still a temporary judge, and the fact that it was a majority decision, in which Cardozo J’s judgment was given notwithstanding the strong dissent of the then Chief Judge, Willard Bartlett.

Indeed, Cardozo J’s boldness and eloquent writing style are amongst the reasons why Cardozo J/CJ’s judgments have had such a profound effect, not only in the United States but also elsewhere.

MacPherson v Buick is not the only occasion where the judgments of Cardozo J/CJ are cited by Anglo-Australian courts. An austlii search of “Cardozo” in the High Court of Australia directory alone produced a staggering 100 results, including his decisions from a wide range of contexts, as well as his extra-judicial writings.

A few of the more well known examples however are:

As Lord Atkin shows us all by his example, we should not be reluctant to look to American authorities where relevant. There are many instances where Anglo-Australian law has been influenced by American law, and there is no reason why this should not continue to be so. This is not only at the common law level, but also at the statutory (including constitutional) level. For example, it is not widely known that the Judicature Acts 1873-1875 were influenced by the “Field” Code of Civil Procedure (NY) of 1848, which abolished the forms of action as well as the procedural distinction between suits in equity and actions at law. That followed upon the abolition of the Court of Chancery as a separate court in New York State in 1846. The Field Code preceded the Common Law Procedure Act of 1852.

The above is not to say that cross fertilisation is a one way street. Nor is it to say that we should always reach the same conclusions. But the way American lawyers have grappled with similar problems means that their jurisprudence has been and can continue to be of assistance in resolving disputes according to our own standards. As Cardozo J himself observed in of Loucks v Standard Oil, 120 NE 198, 201 (NY 1918), “We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home”.

Dr Stephen Lee, Barrister

[1] Chapman, The Snail and the Ginger Beer: The singular case of Donoghue v Stevenson, Wildy, Simmonds & Hill, 2010, p42.

[2] Knapp, International Encyclopaedia of Comparative Law (Martinus Nijhoff 1983), p71.

Recently, we were fortunate to have psychologist, Hanne Paust, speak to members about resilience at the Bar. The seminar focussed on what resilience means in the context of being a barrister and how we can all improve it.

For those members who did not attend the seminar, either in person or online, it is available for viewing via the Bar Association’s CPD online library. The time invested in viewing this presentation will be rewarded with relevant knowledge that may have long-term benefits to your wellbeing and practice. I recommend it to all members.

Resilience was defined in the seminar as “the ability to respond positively to adversity.” One might think of resilience, in this regard, as a set of skills that is to be developed each day (on a continuing basis). By using the right tools, and being aware of the relevant triggers, we can develop the skills to improve how we respond to adversity on the job.

The BarCare Committee is focussed on and committed to assisting members of the Bar Association in improving their resilience. In this regard, BarCare has a number of initiatives targeted to achieving this goal, which include offering regular CPD sessions on mental health and wellbeing to members.

One of the lesser-known initiatives of BarCare offers direct access to psychologists, for any member who may need such assistance. Each Bar Association member is entitled to avail themselves of 3 consultations each year at no cost with any one of the psychologists included on the Association’s panel.

The service is entirely confidential. You will not speak with anyone from the Bar Association to organise your appointment. You simply contact the relevant psychologist directly, informing them that you are a member of the Bar Association. They will invoice the Bar Association directly, without referring to you at all, and the Bar Association will cover the cost of 3 consultations in any given year.

It is a service that could significantly improve the wellbeing of any member who feels they may need some assistance. Details of the panel of psychologists and how to utilise this service can be found on the BarCare page, which is available on the Bar Association’s website once you have logged on to your member homepage.

Finally, BarCare is also presently in the process of putting together an online “hub”, which is intended to be a comprehensive resource for Bar Association members on matters concerning mental health and wellbeing. More information about the BarCare Hub will be available to members in the near future.