Confessions of a Barrister

By Geoffrey Gibson

This is a memoir of the professional life of an Australian Babyboomer as a lawyer.
The author has practised law for more than forty years as a barrister or solicitor, and has presided over one or another statutory tribunal for nearly thirty years. Of late he has concentrated on his writing in history, literature, and philosophy. He has learned much from many summer schools at Cambridge, Harvard, and Oxford.
The author wanted to thank those other lawyers who have helped him as a lawyer, and to try to pass on to others the lessons that he has learned in practising law in various ways. The book is dedicated to the idea that the required professional skill and attitude only come from vocation and experience, and that a good life is open to those who are prepared to put in the time and effort, to acquire the judgment, and to show the loyalty and courage that membership of this profession calls for.
Aspects of the boyhood and youth of an Australian babyboomer may be seen in a companion volume, Confessions of a Babyboomer. 60,000 words.

• Language: English
• Publisher: Geoffrey Gibson
• Release date: Jun 14, 2014
• ISBN: 9781311950741

Geoffrey Gibson

Geoffrey Gibson is an Australian writer living with the Wolf - his dog - in a kind of rural peace one hour out of Melbourne, the home of his football team, the Melbourne Storm. He has practised law as either a member of the Bar or a major international law firm. He has presided over at least one statutory tribunal for nearly thirty years and he has conducted arbitrations or mediations in Australia and the U S. He has published five books before on the theory and practice of the law, A Journalist's Companion to Australian Law (Melbourne University Press); The Arbitrator's Companion (Federation Press); Law for Directors (Federation Press); The Making of a Lawyer (What They Didn't Teach You at Law School) (Hardie Grant); and The Common Law - A History (Australian Scholarly Publishing)). He is now focussing on writing in general history, philosophy, and literature, fields that he was trained in and that he has pursued over very many Summer Schools at Cambridge, Harvard, and Oxford universities. His twelve eBooks so far published include five volumes of A History of the West - The Ancient West; The Medieval West; The West Awakes; Revolutions in the West; and Twentieth Century West; Confessions of a Babyboomer; Confessions of a Barrister; Parallel Trials, Socrates and Jesus; The English Difference, The Tablets of their Laws; The German Nexus, The Germans in English History; The Humility of Knowledge, Five Geniuses and God; and Windows on Shakespeare. The photo is not great, but at least the Wolf comes out OK.

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CONFESSIONS OF A BARRISTER

By Geoffrey Gibson

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Geoffrey Gibson at Smashwords

Copyright (c) 2014 by Geoffrey Gibson

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TO MY FRIENDS IN THE LAW, AND TO OTHER LAWYERS WHO HAVE NOT GONE INTO THE BLACK BOOK

PREFACE

This is a memoir of the professional life of an Australian Babyboomer as a lawyer.

The author has practised law for more than forty years as a barrister or solicitor, and has presided over one or another statutory tribunal for nearly thirty years. Of late he has concentrated on his writing in history, literature, and philosophy. He has learned much from many summer schools at Cambridge, Harvard, and Oxford.

The author wanted to thank those other lawyers who have helped him as a lawyer, and to try to pass on to others the lessons that he has learned in practising law in various ways. The book is dedicated to the idea that the required professional skill and attitude only come from vocation and experience, and that a good life is open to those who are prepared to put in the time and effort, to acquire the judgment, and to show the loyalty and courage that membership of this profession calls for.

Aspects of the boyhood and youth of an Australian babyboomer may be seen in a companion volume, Confessions of a Babyboomer.

Geoffrey Gibson

Owen Dixon Chambers

Melbourne.

I

I did my articles – served my twelve months’ apprenticeship under articles of clerkship – with Eric Permezel of the firm Blake & Riggall. That was back in 1969. Eric was an ineffably urbane general lawyer who worked from nine to five. It just could not happen now.

Eric wore a very svelte brown hat. (Jim Merralls said that when John Nixon did articles there, he had to have either a brown hat or a green, and that he should pop down to get one at Henry Buck’s.) After Richard Burton, Eric had perhaps the best vocal inflection I have ever heard. He had a sound general understanding of the law – that is rarely seen now – and an even better understanding of its place in his comfortable life (in Toorak, and at the Club). He had a filing cabinet in his head of social events and distinctions, and he made snobbery seem a virtue. I and my predecessor, Gavin Forrest, were uncommonly fond of him, but when after I was admitted, I told him that after careful calculation that it was clear that the firm was not paying enough for me and my wife to live on, I may as well have been talking to a man from Mars. All I got was a look of pained incomprehension. Was I saying that the earth should not be round?

What I chiefly learned from Eric was the value of a sense of style. He was a master of the controlled, polite put-down: ‘We are most grateful for your letter, but we are not disposed to go on with this correspondence any further.’ When you lose your cool, you are almost certainly being unprofessional. You should write every letter on the premise that it will be Exhibit A or be published on the front page of the business press. (I have copped both.)

Blake & Riggall was a very old and very snooty firm. They were all Protestant males of course. It had a large conveyancing practice for the holders of landed wealth in the Western District. The senior partner, Ralph Burt, had acted for the Australian banks in the Bank Nationalization Case. That case concluded less than a generation – twenty years – before I started with the firm. Bob Paterson and I recovered the file in the basement one day. We were staggered that it stood four feet high. You could not fit a file of a case like that in a city building today. There was some bitchy correspondence about the performance of Evatt, and the trip to the Privy Council. In those days, lawyers, like cricketers, went to England by ship. Bob and I also recovered a file which held just the carbon strike (green) copy of a letter of advice to ‘Dick’ Casey about the Communist Party Dissolution bill. (Burt thought that it just might be constitutional, but that it was bad politics.)

Allen Stewart was and remains for me the epitome of a lawyer. He acted in the merger of the ANZ Bank and The English, Scottish & Australian Bank, Limited. I can remember carrying briefs up to K A Aickin, and Daryl Dawson to advise on various issues. Allen was of that calibre. He was as good a lawyer as I have known. I do not think he had a law degree when he started with the firm. I think he came with an accounting qualification, and that he got the degree later. He lived at Williamstown when that was not fashionable. He was utterly unprepossessing, but you would have been very silly to try to slip anything past him. He was the complete opposite of the Masters of the Universe that now bestride these colossuses.

Gerry Niall - who was a member of the Royal and Ancient, and who had faced Larwood at the crease – was moving in a commercial direction. He, like Alan Lobban, held directorships, something that would go out of fashion when they started to get sued a lot, and when the Premier John Cain suggested that the directors of a failed trustee company should surrender their passports. Gerry would over time become something of a spokesman for the Liberal Party. Like other members of the Establishment, his manners were perfect, but political tact on TV would not be Gerry’s strong suit. (In about the year 2000, Gerry rang me up one day on the 40th floor of 101 Collins St. He rang to apologise if he had not said hullo in the foyer. He said his eyes were going, but he thought he had recognised my voice. As I say, the Establishment had manners.)

The transition to a commercial practice was spearheaded by the two youngest partners, Bill Leslie and Alan Cornell. That transition would enable them to take part in the merger fashion in the late 1980’s. By then Cornell was the senior partner and, facing a cession of dignity and a loss of control, he was opposed to merger – at least with a firm bigger and stronger than ours. He would not be alone.

But in 1969, Leslie and Cornell were the faces of the future. The past was symbolized by a stern and forbidding partner named Hubert Black. In a crowded lift, Mr Black demanded of a querulous young solicitor named George Swinburne if he was a Catholic. Why? The young man was carrying a brief to counsel, and Mr Black had read the name. F X Costigan.

Two articled clerks had desks in a drafty room in the basement. If we looked up, we could see pedestrians on William Street. You had to pass through the Titles Office clerks to get there. The secretarial pool was on the top floor, guarded by a harmless looking matron called, I think, Miss (June) Morris. The Office Manager was a rather pompous old retainer named Clyde Latchford. His ideas on a profession did not coincide with mine. That became clear when he put out a diktat, which I framed and then ignored, saying that all employees had to sign in and off and note the times because of the provisions of the Labour and Industry Act. The tea trolley would rattle around twice a day. It might remind you of living in hospital. The tea ladies could be relied on to supply serious gossip.

We got paid, as best as Gavin Forrest, Bob Paterson and I can recall, $20 a week during articles, $18.90 in the pocket after tax. In September, it shot up to $35. After admission, we were paid the dizzying salary of $60. As best as I can recall, as an industrial cleaner for three months a year over the past five years, I got paid a base wage of $20 a week. I could and did increase that to over $40 a week by working weekends and two nights. I was bloody glad when the ‘holiday’ was over.

We of course got the nut cases – cold callers or people coming in off the street demanding to speak to either Mr Blake or Mr Riggall. I was sitting there one day about four days before Christmas when a farmer on the phone was put through to me. The bank was about to sell him up and he feared that there was collusion with the agent. A light bulb came on – ‘You need an interlocutory injunction!’ I rang a barristers’ clerk and got one of the bum steers for which that clerk was famous. Counsel knew less about these injunctions than I did. (He asked why damages would not be adequate. For a family tipped off the land before Christmas? By a bloody bank?) Fortunately, the bank caved in when I told them I would issue a writ, and the problem was resolved that day. Thirty years later, I would not have dared to sue a bank. If I had emailed for a conflict search, the computer would have lit up like a Christmas tree on Guy Fawkes Day.

The firm occupied four floors, I think, above the basement at 120 William St, handily close to the Australian Club. It was like a rabbit warren inside. What got to me quickly was how slow everything was and how much everyone relied on precedent. Mail of course went by post – there was no document exchange, much less fax. Litigation went on for years. We acted in a socialite’s divorce – we did divorce for the better people- that had gone on for years and years. The decree nisi was pronounced on a second, supplementary cross petition drawn sworn and filed on the day. (Sir John Barry said that he was granting the decree to release the parties from their agonies at the hands of the lawyers.)

What also struck me was the amount of heavy work done in the engine room by law clerks. They were very seasoned and good on forms and precedents, but at a certain point in the discussion, you might find yourself looking over a void. I recall one day asking a clerk, Hector McDonald, what a bank should sue a robber for. Without hesitating, he said ‘moneys had and received’ and walked out of his cubicle to pull out a volume of the Appeals Cases as authority.

Although I was happy enough to be in such a distinguished firm, the whole apparatus struck me as disappointingly antiquated and badly in need of a shot of professionalism, and a break out from a time bubble. It seemed to me that there were openings for lawyers who liked to think for themselves and take a decision – and even take a risk. Cornell – ‘Alf’, as he was always known – thought the same. There were also openings for things like timesheets, and opinions vary on the beneficence of their impact.

We acted for ICI. Some renegade farmers up the river were playing fast and loose with one of our patents. When Alf threatened to sue them, one of them said that the name ICI would be mud up and down the river. That was blood to a tiger for Alf, and we sued in the original jurisdiction in the High Court. We were seeking an interlocutory injunction from Sir Douglas Menzies. I think that Richard Searby was briefed. (He was a paradigm equity lawyer who surprised everyone later by going to work for Rupert Murdoch.) We had to prove that a sample that had been tested had passed through various hands. I flew to Sydney to get about four people on affidavit with the one common exhibit, the sample. I also had to get a scientist to commit himself to an opinion that was enough for us on affidavit. I thought that this was a very big mission for an articled clerk wet behind the ears – and I downed two whiskies on the plane coming back – but we had enough to make the errant farmers cave in.

Alf really was a common lawyer manqué. I learned a lot from his exuberance and simple common sense and determination. And his aggression – he told me once that first you give them a knuckle sandwich; then when they are down, you put the boot in; then, and only then, do you show mercy – you give them a .45 calibre bullet right between the eyes. To this day, there are former partners of Alf in Sydney who might mistily wonder if Alf was in truth joking.

There was a lady – let us say Mrs Smith – whose divorce had been going for years. She got hand-passed from articled clerk to articled clerk. She complained to me that my immediate predecessor had not known where the Supreme Court was. (That was a big lesson in itself. Find out where to go.) We had to apply for maintenance before the Brighton Petty Sessions. At 10.30, I noticed that our counsel – recommended by the same barristers’ clerk referred to above – was not there. He returned just before lunch. Later I heard that he had gone back to town to do a couple of divorces. I was outraged by this conduct of this sly, smug, greedy, man. Mrs Smith was philosophical, but I have never lost my contempt for barristers who overbook, and there I think is the beginning of my suspicion of requests for adjournment. It was the great Lord Mansfield who recognised that delay in the law is mostly caused by lawyers – as often as not to suit themselves.

It is hard to recall now just how barbarous those laws were. As I recall, now, you had to call the co-respondent to corroborate the adultery. In one case I was in, counsel called the co-respondent, a tall, blond socialite of a certain age. When asked for her address, she said, languidly enough: ‘Which one would you like?’ I can recall thinking over the polite titter in court that counsel may have sat down saying ‘No further questions.’ But the really demeaning part came if you had played around yourself. You had to confess and ask for forgiveness. You did so in a sealed document that was handed to the judge so he - a she was then unthinkable – could exercise a discretion in your favour. These were therefore called Discretion Statements. They tended to follow a pattern, but it is hard to imagine anything so belittling or hypocritical – or better designed to bring both the Church and the courts into contempt.

I shared the basement for most of the year with Bob Paterson (who, after Gavin Forrest, would become Managing Partner – and reduce the ration of biscuits for the tea ladies!) When our debt collecting clerk left, Bob and I got thrown in at the deep end. He left a legacy of about 240 files of total unsupervised misery and chaos. He had not had the slightest idea of what he was doing. This was a phenomenon I would become all too familiar with about 20 years later when I became the insurance partner. You did not know you were sitting on a minefield until the culprit left. I became convinced that this was why some people did not want to take holidays.

Anyway, the mess was such that Bob and I had to come to terms very quickly with procedural quirks across all jurisdictions. We also had to learn how to mollify querulous or outraged clients, frequently lawyers overseas who instructed us as their agents. Bob had a letter from one urbane English solicitor thanking our predecessor for a long, and entirely useless, disquisition on the writ of fi fa. He was disposed to query the necessity or utility of the advice since it was they – the English – who had invented the bloody writ! Bob and I had a great and memorable learning experience.

(The common law clerk who left us in the lurch had a brother. He was the Probate Clerk. He was a very serious drinker who dispensed advice on hangovers. When he left us, he went to Norfolk Island, the site of the penal colony. I had a drink with him there. He was in clover. His titles included Master in Lunacy and Receiver of Wrecks. They had a kind of poetic beauty or truth. The two brothers were Campbells. That gave rise to issues if we employed someone from a clan offside with the Campbells – that is, just about the whole of bloody Scotland.)

I can only recall two other barristers during my articles. David Ashley