Peter O’Callaghan interview 22 July 2009

My essential brief was to try and establish that there was liability in the auditors, that is liability for negligence in the auditors, and Alan Goldberg was for the accountants, I think it was KPMG, and at a late stage in the proceedings for whatever reason and I’ve forgotten precisely now, the issue of that was removed from the terms of reference. So the Commission was not called upon to judge whether or not there was a case established for negligence on the part of the accountants. But there were lots of other things in that Commission which would take a long time to explain.

Did that lead to some people’s arguments, or perceptions if you like, that people got off too lightly?

No, well not in the context of liability for it, because I went out of the case after that, but there was a claim in negligence which was successful. It was a Commission which was notable for the fact that Sue Crennan, I think, my very good friend Sue Crennan was counsel assisting, and it’s one of the few Commissions in which, and she won’t mind me mentioning this, (that) their recommendations for prosecution were rejected.

You worked a great deal with Royal Commissions and inquiries as you mentioned. Did you find that to be a particularly favourite area of work; did you like that as compared to say arbitration and mediation which you have also done a great deal of?

If I had to choose between Royal Commissions, arbitration and mediation, I think I’d pick arbitration first, mediation certainly last. I am not an espouser of mediation.

Why is that?

Well I think that the problem with mediation is that it is not possible generally, to produce the atmosphere which exists at the door of the Court, and until that atmosphere is produced, there is not complete control of the case by the representatives. Put another way, I would always say a case in the hands of competent counsel, A against B, will be better resolved rather than by alternative dispute resolution. That might be something of a heretical view, but that’s been my experience of mediations, and I think that mediations often, certainly in the case of where an insurer for instance is on one side and the plaintiff on the other, the mediator is made the conduit of the message reinforced by the insurer, ‘we’re not paying any more’. But however that’s just very random, very incomplete criticisms of the mediation process. But if we, and I add this and I think this is a valid point, if the appointment of judges had kept pace pro-rata and mutatis mutandis with the population, we wouldn’t have the difficulties we have got now. I think one of the great problems which has been produced is the failure to appoint sufficient judges.

So I’m interested in what you’re saying about the fact that; is it the formal atmosphere of the Court that you feel is more conducive somehow to, if you like the passage and the execution of justice?

No, it’s the tension which is produced in the party, initially the plaintiff and then the defendant, that they are going to have to go into the box and be sworn and give evidence. It’s then that they see, and indeed their advisers see, with a greater clarity than in the shuffling beforehand, of the pros and cons of the case. I might say that back in the old days, very often the insurers, be the state or club or whatever, they were late in getting instructions to the defendant’s counsel, because they might have lost the file or whatever, and consequently a plaintiff was often, when I say forced, his counsel said ‘okay, well we’re going on’. And then the plaintiff has given his evidence, and then they find the file. But it’s a different situation then because he’s had his day in court, he’s seen what it’s like, and he’s quite prepared to hang in, or she is quite prepared to hang in there.

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.