JD Phillips

Mind you, sitting in the Practice Court was a jolly good learning curve, you heard a lot of senior barristers do their cases very well. I remember listening to Peter Brusey presenting schemes of arrangement in the Practice Court and that’s how I learned to do schemes of arrangement.

Bill Ormiston

You’re talking about “sitting”, you mean sitting in the back, waiting to get on?

JD Phillips

Yes, yes.

Bill Ormiston

As a young barrister.

Juliette Brodsky

Better than a reader’s course?

Bill Ormiston

I think in many ways it was, because you could see when people made mistakes and, you know, say “God, I won’t do that”. But before that, you didn’t really understand why.

JD Phillips

The judges got to know the barristers appearing in the Practice Court quite well because it was a sort of kiddies’ court, wasn’t it, in many ways. I remember Alistair Adam who I got to know that way in the Practice Court. He said to me - it was a pretty busy day, I was doing a scheme of arrangement - and he said “How many more points have you got, Mr Phillips?” I looked down the list and I said “Another six, your Honour” and he said “That’s all right, I’ll make the order - what is it?” (Laughter)

Clive Tadgell

I remember Adam who was a very nice judge in the Practice Court and (Peter) Brusey was appearing before him making application for approval of one of his innumerable schemes of arrangement and Adam said, “Yes, I’ll make that, do you have an order? Pass it up. Anything else to say, Mr Brusey?” “Well, simply that Your Honour might congratulate the draftsman”. (Laughter)

JD Phillips

He was English, never lost for a word, Brusey.

John Batt

Brusey always mentioned minor points and then the last one he’d mention was the difficult point, and by then the judge was with him. (Laughter)

Bill Ormiston

I must admit that we haven’t really spoken about the judges that we appeared before but certainly in those early years in the 60s and into the 70s, but particularly the 60s, the standard of Supreme Court judge was extremely high, the percentage of appeals from Victoria was very, very low …

James Merralls

Even to the Full Court.

Bill Ormiston

Even to the Full Court, but in addition, there were only about one or two of whom you could say, well you don’t know what they were going to do because they mightn’t understand it. The rest of them knew everything. Tom Smith, Reg Sholl, Arthur Dean, Ted Hudson – you can go on and on – Alistair Adam.

James Merralls

Alistair Adam had quite a specialised practice, property law, and he did some tax. In fact, Keith Aickin and Richard Newton both read with him and it’s quite an interesting pedigree. He had read with Sir Wilfred Fullagar at the Bar and Sir Wilfred Fullagar had read with Sir Charles Lowe. Sir Charles Lowe hadn’t read with anybody because in his time you didn’t have to and he didn’t have the money to pay the fee. But Sir Alistair Adam was a property lawyer who took silk rather late. He was a Scot by birth, came to Australia as a young child, his father was one of the professors of theology at Ormond College. He came from Roxburghshire on the borders of Scotland. But he was appointed to the Supreme Court in the late 50s, I think to the surprise of some people who thought that perhaps his practice was a little too specialised, and he turned out to be a very good all round judge.

JD Phillips

He hadn’t been very busy as a QC, had he?

James Merralls

I don’t think he had, no.

JD Phillips

That’s why I think people were surprised.

Clive Tadgell

He had a few problems in criminal jurisdiction, he had a lot of appeals against him early on.

James Merralls

Did he?

John Batt

I was going to say he was a good criminal judge.

Clive Tadgell

That might have come later on, but I remember him turning up at the Medico-Legal Society one Saturday night after he’d been trying someone for murder and had a guilty verdict returned, Adam turned up at the Medico-Legal Society and he had had a few noggins beforehand. But it used to take it out of him really.

JD Phillips

Well, he’d just sentenced him to death presumably?

Clive Tadgell

Yes, I’d imagine he had.

JD Phillips

One of the stories that I heard when I went there was that in the old days when the new judge had his first guilty plea to murder and had to sentence a man to death, one of the older judges waited around at night to make certain that he was still okay after finishing the gruesome task.

Juliette Brodsky

I imagine it would have been very necessary.

JD Phillips

Oh, dreadful.

John Batt

John, you said “guilty plea”, I think you meant “guilty verdict” because I believe it was David’s case when Phil Opas was counsel, which was much later than our early years - that was the first plea of guilty to a murder charge.

Juliette Brodsky

Can you elaborate a little on David’s case?

John Batt

Well, I can’t remember the case, the facts of the case, but a man called David pleaded guilty and that had never been heard of before.

JD Phillips

Was he executed?

John Batt

Oh no, I’m pretty sure it was after – yeah, it was after capital punishment …

Bill Ormiston

There were two stages; there was the abolition of the death penalty and then there was a mandatory life sentence which lasted through until I came on the bench, not much longer. Then by the mid 80s, one gave a sentence, which was discretionary at both top and bottom.

Clive Tadgell

Yes, which just opened the floodgates really, which is what sentencing generally did, as it does now. What I wanted to say was (that) the criminal appeals used to be dealt with in the first week of the month by the Full Court and they were well over by the end of the first week. Nowadays, I think most of the Court of Appeal’s work is criminal appeals, isn’t it?

JD Phillips

Wasn’t the story that in criminal appeals, the appellant would get up in front of Ned Herring in the Full Court and the appellant wouldn’t be necessarily represented, and Ned Herring would listen to him and say, “There’s nothing we can do for you, me boy, take him down, call the next case,” and that was it.

James Merralls

Harry Winneke would call up the appellant and say, “Well, you’ve heard the argument against allowing this appeal, and you’ve got to agree with us - there’s quite a lot in it, isn’t there? We wouldn’t be doing the best for society if we were to allow this appeal, would we?” The prisoner would say “No” – Harry Winneke had a very persuasive manner – “No, Your Honour”.

Juliette Brodsky

Do you think that would work today?

Bill Ormiston

Yes, because I saw his son do exactly the same thing.

James Merralls

“We’re inclined to think that perhaps the sentence was a bit light. We’d be doing society a disservice if we didn’t increase it, wouldn’t we?” “Yes, your Honour”.

Juliette Brodsky

That is very interesting, because I imagine anyone listening to this would find that hard to imagine, anyone not wanting to argue with such a persuasive line.

Bill Ormiston

Well, as I say, his son did it as President quite frequently and he had a marvellous manner of dealing with prisoners, and closing my eyes, I could just imagine and hear Sir Henry doing the same thing. It was passed on, that knack of dealing with the unrepresented prisoners, of which there weren’t a huge number by the time we came to hear cases. There were a lot of unrepresented prisoners back in the 60s and 70s. Virtually all of them, unless they were contrary, had representation when we were on the court.