James Farmer



Monday, April 13, 2015
As a lawyer, it’s hard to find the time or inclination to read books, given the fact that so much of our working day involves reading … and reading … and more reading – documents, law reports, submissions, transcripts and then of course the endless emails.  For myself this means that reading books, whether novels or otherwise, tends to be restricted to vacation time.

Increasingly, when I do read books, I find myself attracted to biographies and have a preference for those of people who I have known whether well or not.  Not always.  I enjoyed very much reading Michael D’Antonio’s book “A Full Cup”, the story of Sir Thomas Lipton, who from humble beginnings in Glasgow established a mighty empire of stores, factories, stockyards and tea plantations in the late nineteenth and early twentieth centuries.  His name survives today as Lipton’s Tea.  But he was equally well known for his several attempts to win the America’s Cup, unsuccessfully.

The America’s Cup today is unique among sporting trophies.  It is said to be the oldest sporting trophy in the World going back to the initial race around the Isle of Wight in the Solent in 1851.  That may or may not be so.  In 2012 GEORGIA, the TP52 that we race through Georgia Racing, won Australia’s largest Regatta, Geelong Race Week conducted by the Royal Geelong Yacht Club.  The large and handsome trophy that we won – the first foreign boat to do so – was said to date back to 1846.  I have not been able to verify that but certainly we were not allowed to take the trophy with us.

The second unique feature of the America’s Cup is that it is the current holder of the Cup who makes the Rules.  Attempts over the years to establish an independent permanent race organisation have failed miserably, doubtless because that can only be done by agreement with the holder of the Cup and none so far has been willing to agree.  Criticisms of the unfairness of a competitor being able to determine the rules have risen to a crescendo this year because Oracle, the current Defender, has not only made the Rules but has since changed them.  It is ironic (but not unexpected if one had read Julian Guthrie’s book on Larry Ellison “The Billionaire and the Mechanic”) that Oracle/Golden Gate Yacht Club successfully established in the New York Supreme Court that Ernesto Bertarelli/Alinghi had acted unfairly and improperly but is now on the receiving end of the same complaints.

Pity Sir Thomas Lipton though.  At that time, a challenger not only to build his yacht in his country of residence but had to sail it to the United States to compete.  This meant that Lipton’s boats had to be built strongly and heavily enough to be able to cross the Atlantic and withstand all weathers.  Meanwhile in the sheltered waters where the Challenge was to take place, the American defenders were able to build a lightweight boat far more suited for the waters in which the races would occur.
A notable feature of Lipton’s yachting endeavours was that, although he was much admired in Britain and in the United States for his America’s Cup challenges, he was blackballed from membership in the Royal Yacht Club and was only accepted as a member when he was 83 years old and with the assistance of the intervention of King George V.  The class system was certainly vibrant and alive in those times!

I am tempted to use this as a platform to say more about the America’s Cup – which I have in previous commentaries – but this is not the occasion, apart from bemoaning (if I may) the shabby way in which Dean Barker has been treated by Team New Zealand.  Dean was the first to welcome the addition of Peter Burling to the team as a potential helmsman but his position as Sailing Director was one which he had earned by virtue of his experience and work with designers over 15 years and from which he should not have been unceremoniously sacked.  Many will think he has been unfairly made the scapegoat for the team going from 8-1 to 8-9 in the last Event.  

The next book that I have read recently and enjoyed was the biography of Murray Gleeson, now retired Chief Justice of the High Court of Australia, written by Michael Pelly under the title “The Smiler”. I would not claim to be a colleague of Murray though I saw some of his work at reasonably close hand when I was at the New South Wales Bar from 1979 to 1990. First, I was a member of the New South Wales Bar Council in 1983-1984, when he was President of the NSW Bar.  The book attributes to Ruth McColl, then a junior Council member also but later a Judge of the NSW Court of Appeal, the view that Gleeson ran Council meetings in an “intensely democratic” way but did not allow things to “run amok”.  That too was my view.  I felt he always had a very clear view of what outcomes he wanted – and got them – but without suppressing reasoned debate.

One of the largest, if not the largest, issue before the NSW Bar Council at that time was responding to the 1982 Report of the NSW Law Reform Commission, headed by Professor Ronald Sackville (who was later to become a Federal Court Judge), which proposed that the distinction between barristers and solicitors be abolished.  The New Zealand model, claimed to be unitary, was promoted by the Commission as better serving the public than the bifurcated system in NSW (modelled on the English system).  
The separate Bar in New Zealand in the early 80s was far smaller than it is today but was growing fairly rapidly.  I suggested to Gleeson that this was the result of market forces and that in New Zealand the fledgling Bar was performing a valuable public service by breaking down the monopoly on top litigators that the firms and especially the large firms had previously had.  This meant that it was possible for a litigant to obtain a good barrister instructed by a small firm at much lower cost and have a fighting chance of matching litigants with far greater resources and who were employing larger firms.  

That was, as I recall, the main point that Murray took with him when he successfully persuaded the Government of the day not to proceed with the Law Reform Commission’s proposals.

I did have the good fortune to be Murray’s junior in the High Court in Canberra on an appeal concerning the validity of a notice to produce issued by the competition regulator.  He clearly had his argument worked out beforehand and my role was restricted to going for a long walk with him and listening to him run over the argument – a role I felt privileged to perform.  

I later had him as an opponent, shortly after I took Silk in 1985 as I recall.  The case was one of common law negligence.  He cross examined my principal witness, who was the person alleged to have acted negligently, shortly and in a methodical, step by step, logical progression that led the witness in effect to admit his negligence.  I was interested to read in the book Dyson Heyden’s description of a Gleeson cross examination which was on all fours with what I witnessed.  Dyson’s account begins: “He would frame each question in a way that compelled only one answer…”  Indeed.

Gleeson was, in my respectful view, matched only by Tom Hughes QC (still practising at the Bar today aged 91) as the consummate barrister.  Solid on the law, a terrific advocate and master of dealing with evidence.  Little wonder that his Judicial career should be as stellar as it was.  Promoted directly from the Bar to the position of Chief Justice of New South Wales, he later of course was elevated from that position directly to Chief Justice of Australia.

I went to the morning ceremony when Gleeson was appointed as Chief Justice of NSW.  That afternoon I had a 2 p.m. legal argument set down in the Court of Appeal.  The issue concerned the forum in which a contractual dispute between an Australian and a New Zealand company should be determined.  The President of the Court of Appeal at the time was the redoubtable Justice Michael Kirby.  To my surprise, Gleeson chose that case to be his first one sitting as a Judge.  As Chief Justice he presided.  This did not stop Kirby, though sitting at the side, from the very beginning of the hearing taking the lead on questioning counsel.  That position pertained for a while but then Gleeson took over and by the end one was not under any illusion as to who was boss!   

Mention of Kirby prompts me to say that I commented also in this column on 15 August 2013 on the book written of his career by Daryl Dellora, “Michael Kirby, Law, Love and Life”.  Kirby and Gleeson were contemporaries at Sydney Law School, both graduating with first class honours degrees.  They found their way to the High Court by rather different routes however.  Gleeson went to the Bar early and, as referred to, became a leader of the Bar before Judicial appointment.  Kirby never took Silk because he was appointed a Judge of the Industrial Court at a young age and then, after a short while, President of the Australian Law Commission (while still retaining the status of a Federal Judge) before eventually being appointed as President of the NSW Court of Appeal.  As judges, they were both of course truly impressive but different in style and approach – Kirby the would-be reformer (who like most judicial reformers often ended up in dissent) and Gleeson unmatched for his logical and disciplined legal analysis.  An excellent feature of Michael Pelly’s book in this respect is his examination of Gleeson’s High Court Judgments and his interaction with other members of the Court.

The last biography that I have read of late is that by Stephen Hawking, “My Brief History – a Memoir”.  Like 10 million others I read his classic popular work “A Brief History of Time” but, in my case, understood little of it.  My eldest son, Russell, who has a Master’s degree in Physics from Imperial College London did understand it!

My interest in Hawking dates from my time as a Fellow of Gonville and Caius College Cambridge, where Stephen had been appointed a few years earlier.  He had already established an international reputation by that time and was wheel chair bound and able to talk but with difficulty.  He had lunch most days in the Fellows’ Dining Room and I often sat next to him.  He was interested in New Zealand though in his book reveals that Australia and New Zealand are virtually the only parts of the world to which he has never travelled.  I recall too his little Reliant motor car, specially adjusted to enable him to drive himself.

The recent movie “The Theory of Everything” of Hawking’s life was remarkable to me for the likeness and accuracy of Stephen’s appearance and mannerisms that Eddie Redmayne  portrayed.  It all seems a long time ago but, as peripheral as my presence was, it is a privilege to have those memories.

13 April 2013

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