Peter O’Callaghan interview 22 July 2009

When I met you, you spoke with some concern about the trend towards specialisation among barristers. Your own view is that in many ways it’s better to be almost, as it were, a generalist – would that be something that many other barristers here at the Bar would share, a view that many would share?

I naturally accept any barrister who wants to specialise, and there are many who have and they have done so very, very well. But when you see the associations or the groups of barristers within barristers, I get concerned that the old concept of a barrister being able to appear for anyone anywhere, is being cut across. Now it’s too late now, but for instance, and this is undoubtedly heretical, but I am not a member of any association of barristers within the Bar: I’m not a member of the Criminal Bar Association, I’ve done tons of crime; I’m not a member of the Commercial Bar Association, I’ve done tonnes of commercial. I have a view that if I could wave a wand, the Bar would be just a group of barristers overall, without associations. Though I must concede I can see the merit of specialisation in one sense, but it’s never been my experience, if you have a brief in a jurisdiction of which you are not completely familiar, you can readily remedy that by going and speaking to a colleague, and that’s one of the great things of the collegiality of the Bar, is the readiness of another barrister to tell his or her fellow, what’s it about.

Has that atmosphere of collegiality in any way diminished over the years since you first signed the Bar Roll?

Well, it hasn’t as far as I’m concerned, because I could talk to anyone about a problem and lots of people come to me to talk about problems. But I do think if, and I don’t want to get too much partisan about what’s the forthcoming meeting, but if you do have a covey of barristers dealing with the same subject, I think that is running counter to what I would regards as the traditional ideal.

The problem, I imagine, is that I suppose in the past people knew more and were familiar more with people who had wide general practices, but these days do you think perhaps there will be a growing expectation perhaps among the public, that they would be preferring a so-called specialist, over say someone who has had a wide general practice, could that be deleterious for people who do have wide practices and take briefs no matter what, and from where?

Well it’s hard to answer that, but can I go back to when I was reading with Kevin Anderson, and in those days in personal injuries, and I’m sure it’s still the same now, the insurers typically had a panel of Villeneuve Smith, so on and so on, and they wouldn’t brief anyone other than them. And as Kevin Anderson pointed out to me many times, they are denying themselves the expertise of the left-field barrister who might think differently to them and so on. Anyway that’s an imperfect answer, but it reflects my belief that a barrister ought to be capable of, in general terms, of dealing with whatever he or she is confronted with.

I interviewed for the oral history some time ago, a number of retired Supreme Court judges, and a colleague of yours, James Merralls QC, and they were talking about the advent of technology in recent years, and its impact on barristers and their practice. What’s your own feelings about technology and what it may have done, whether it may have improved people’s practices in the Bar, or perhaps in some ways taken away from it?

Well I’ll deal with this, and I’ve got one other thing I want to say, but deal very quickly with that. The photocopier first produced the situation in contrast to what was previously the case of the imperfectly produced brief, being the file, wrapped in a brief sheet with red tape around it. Then when the photocopier came in, everything was photocopied and there still wasn’t in the imperfect brief, any identification of what the issues were. And progressively with the capacity to photocopy, email reproduce, that’s occurred. And we see and I read the ‘History of Four Judges and a Silk’, in which they very accurately point out the vice of the casebook, though I might say it could have been done earlier. The vice of the casebook is that you get a whole mass of material which is not often looked at. As far as the barrister is concerned, when that comes up from the solicitor, he’d better look at it, or she’d better look at it, because there might be something in it. Can I just finish this? John Dahlson, who was the solicitor at Corrs for many years, and he was the first man in my experience to really introduce the casebook principle, which he did at the Licensing Court. And he produced casebooks, and everyone was happy with that. But Frank Field said ‘as long as they are in hardbacks’. And the late Michael Winneke, a great fellow and a good friend of mine, was instructing me for the North Melbourne Football Club social club, on the day of or the day after man had landed on the moon. And I said ‘for God’s sake, Mick, whatever you do, put these papers into a hardback folder’, and he didn’t. And Frank Field, who was, as I say, one of the most judicial characters I’ve struck, was walking into Court and the looseleaf folder spilt the whole lot over. The only way I got out of it was by saying ‘well look, let’s look at what happened today elsewhere, man has landed on the moon, let’s not make too much of that’.

An edited version of an interview conducted for the Victorian Bar oral history project by Juliette Brodsky, filmed by Stewart Carter at Owen Dixon Chambers and edited by David Broder.