Interview conducted by Juliette Brodsky
Q Thank you very much for making the time to be interviewed.
A Hello, Juliette.
Q In a way, if you had to start all over again, you would be today a poster girl for STEM, starting out in science and mathematics.
A Yes, as you know, my whole early education was in science and mathematics. I was very interested in physics at school, I did well in those subjects at school. I went to Monash, which was then a relatively new campus. It was set up by (Robert) Menzies in the early 60s and its big focus was to be science and I had a real sense of wonder walking across that campus, it was like a religious experience. Now I was going to understand how the world worked and I was going to meet people like me. For a long time, that was true and as you know, after an intermission in Oxford with my husband, I wound up taking a PhD in pure mathematics and I worked for a couple of years as an academic in mathematics. Probably if universities were still the independent, self-contained, autonomous institutions that they had been when I’d begun, I’d still be there.
Q What did you write your thesis on?
A I extended the classification theory of finite dimensional Lie algebras to a class of (infinite dimensional) Lie algebras over a Banach space.
Q That sounds suitably abstruse, but very interesting.
A Well, Lie algebras are important for the mathematics of quantum mechanics. So, this kind of pure mathematics sits on the border between mathematics for its own sake, and mathematics as the generator of language for physicists to interpret what they see in their experiments. I would be equally comfortable calling myself a theoretical physicist.
Q Were you hoping in a way to get further into the mathematical world, because I’m interested in the turning point when you decided to become a lawyer?
A Well, there was a hiatus of eight years between those two things. I decided first that the increasing domination of managerial culture at university was more and more limiting and less and less imaginative. So, one turning point came for me when I received some sort of questionnaire from the Department of Foreign Affairs and Trade or whatever it was called then, and it was headed “What will your research do for Australia’s export effort next year?” And I looked at this document and I thought, “I don’t belong here. We don’t export Lie algebras”. This is an approach to intellectual inquiry which has a very narrow, very commercially-focused intellectual horizon. I’m sorry to say that my observation in the last forty years is that this has got worse, not better.
Q Many academics would agree with you. It becomes that culture of chasing your tail to have more publications, prove yourself viable. So, you noticed that quite early on - 40 years ago?
A 40 years ago, 1978. My son did a degree at Monash in recent years. He was taught special relativity in his third year of physics. When I went to Monash, we did special relativity in first year physics. That tells you quite a lot. It tells you about how the students are prepared and it tells you about the constant pressure, I believe, because of international students, to drop standards and pass more people. That also is an artefact of the commercial focus of managerial culture: how many degrees can we sell?
Q So, you’re saying this really began under the Fraser Government?
A Yes, it did.
Q It wasn’t a Whitlam Government initiative that you know of?
A Not so far that I’m aware, but I was hardly privy to the counsels of high government! I was supported in my PhD studies by the Whitlam Government. I remember it well. I began in 1973 and took my PhD in early 1976. I had a grant of $3000, which at the time was perfectly viable. We didn’t eat steak, but we ate.
Q So, I wonder if all this commenced an embryonic interest in administrative law?
A No, no thought of law at all.
Q I ask because it’s the area that regulates government decision-making and I just thought perhaps it could have triggered an embryonic sense of that?
A No, I had never, ever thought of studying law. When I was at school, law as a discipline at least at my school, was regarded as entirely humanities-focused. I had never heard of anybody interested in science doing anything in law. I knew girls at my school who were going to be lawyers and they were all girls who did history, literature and such. No. I left university life. My husband who also has a PhD in mathematics became pretty disenchanted and left also, and after some peregrinations across the world and round the country, (we) wound up setting (up) a small bookshop in Melbourne, in 1978. Late 1978.
Q Where was the bookshop?
A It began in Clayton, near Monash. We thought that would be a good idea; that proved to be a counsel of pure naivete. Students not only don’t buy books, but they steal books!
Q Oh, so, it was a little bit like a Co-op Bookshop for students?
A No, no, it was an ordinary bookshop selling poetry, history, science - the things I thought would be of interest. It rapidly morphed into a purely commercial business, to stay afloat, servicing schools and libraries. When the lease ran out, we moved to Oakleigh, which dropped the theft rate and improved the school book list rate. We traded for eight years, didn’t make a lot of money at all - in fact we lived in quite dire straits for some of it. But at the end of it, in 1986, we finally sold it out and it made a small capital gain, sufficient to keep us for a few years. But you asked, how did I come to the law?
A The answer was purely impulsive. I woke up one morning in February 1985 and I had a thought in my head which had come from nowhere: “I should have done a law degree”. I was at the time pretty bored because we’d struggled with this bookshop. But with any kind of small business, the hardest part is zero to 1. 1 – 10 is just more of the same. We’d got to 1, we’d probably got to 3, and I was pretty bored with getting to 10. I had two little kids who were 5 and 1 and a half at the time, and that was boring in its own way. I mean, it’s fun and all that but it wasn’t very intellectual. So, I rang up the universities.
Q And you were accepted into Monash, or re-accepted into Monash.
A At that time, there was no graduate entry, so you had to begin again. There were only two law schools at the time – that was Melbourne and Monash (there might have been law at LaTrobe, but I didn’t know that). So I rang up the University of Melbourne because I’d been to Monash, and didn’t want to go back to the same place and got a very nice stuffy chap who was then the sub-dean. I said, “Hello, you don’t know me but my name is… I have a first class honours degree in pure mathematics and a PhD, and I’m interested to enrol in an LLB”. “Oh well,” he said in a very quelling way. “You will have to take the combined law schools entrance test.” Now, I didn’t know what this was; it turns out that it was the American LSAT. I said “Ok, that’s fine, I don’t mind doing a test but what’s it for?” “Well, madam,” he said. “That is a test designed to see if you are sufficiently literate and numerate to attend the University of Melbourne law school”.
Q He obviously didn’t listen to the bit when you said you were mathematically qualified.
A No, he’d listened. I said “But surely, Mr Bloggs, I must be sufficiently literate and numerate to undertake a first year undergraduate degree – I don’t mind doing the test but I don’t understand that.” “Oh, madam,” he said, “You may be sufficiently literate and numerate for other purposes, but not necessarily for the University of Melbourne law school.” And I thought, “I’m not going to get on with this bloke”. And then because I happened to have him on the line, not because I had any clear idea of what I was going to do, I said, “Well, anyway, I’ve got two children under 5 - what are your arrangements for part-time study?” “Oh, madam,” he said, “we are only interested in serious students.” So then I thought, “I’m really, really not going to get on with this man!” Thanks very much, bye bye. So I rang Monash because that was the other option I knew of, and got lovely Professor McCredie, now sadly gone to God. He said, “You sound ok – when can you come and have a chat?” I thought, “I will get on with this man” and I went and had a chat. And I did wind up doing what I now know to be the LSAT, which turned out to be two of the most interesting hours of my whole life. It’s a terrific thing; it’s really fun.
Q Why was it so interesting? Was it because it awoke old areas you’d previously studied?
A Well, it was mostly about textual analysis and logic, and it was just fun. You know, it’s puzzles.
Q So, you commenced – or rather, recommenced – at Monash University and you mentioned Professor McCredie. Who were some interesting lecturers for you during that time while you were doing your studies?
A I overloaded that course. As I say, there was no graduate entry, I decided to do it full-time because it was going to take forever part-time, and we had a person by then working for us in the shop, so that was sort of nearly ticking over. So it took a little over three years to do the degree. During that time, the people I remember as most responsive, I suppose, would be Jenny Morgan who now has a chair at the University of Melbourne, who was my criminal law tutor and who was always open to ideas, which was very exciting. Arie Freiberg who’s the now-retired dean of Monash law school, who taught criminal law. Richard Fox who also taught criminal law, and of course, lovely Professor Louis Waller who supervised my honours research subject in the law of evidence and who was a very, very interesting person to speak to.
Q He was one of the founding people at Monash University law school?
A I believe so.
Q He was instrumental in setting it up - yes. What was he like – Dr Waller?
A He’s an orthodox Jew and I’m a feminist atheist, so we came from quite different world views. But he was always open to any inquiry about the life, the universe and everything. I remember vividly asking him, “How can you say a prayer every morning that thanks God you’re not like me?” He said without missing a beat, “Well, that’s because God understands it’s hard to be a woman”. I thought that was pretty good.
Q It’s interesting, Kristine, that you mention people like Arie Freiberg and Jenny Morgan, both noted for their work in criminal law. And yet that’s not what you’ve ended up specialising in.
Q Were you thinking at the time that you might have gone into criminal law, or were you fairly agnostic at that point about where you wanted to go?
A I never thought I’d practise law. I was only enrolled in this degree because I was bored!
Q Right. So when did the little fire of ambition start to kick in? Was it after you did your honours?
A No, I don’t think so. In first year then, you did legal process, contract, tort and crime. I found it very helpful that I had been formally trained at a high level in analytic technique. It made it easy to learn things which had logical structure, so that meant it was easy to learn legal process, contract and crime. I struggled very much with tort. Tort seemed completely irrational – it seemed to have no relation to any kind of legal principle I’d ever heard of and for about six months, I struggled quite badly with tort. Indeed, my second semester lecturer told me to drop out before I failed. I took that pretty seriously because when I’d been an academic, I wouldn’t have given this advice to anybody unless I’d really meant it. So I was on the verge of doing that, and the final exams were coming up. I thought, “Oh, well, I’d better give this a good go”. So, I asked Rod, my husband to look after the kids for three days and I sat down and read Fleming from cover to cover, beginning at page one, and by the end, the subject made sense. Then I sat the final exams and did pretty well in the final exams. The then sub-dean said to me (because this was the arrangement then), “You should apply for articles”. And I didn’t know what articles was. I said, “What’s articles?” He explained and I said, “I don’t know how to do that”. He said “I’ll give you a list of firms”, and gave me a list of the big eight. I wrote a standard letter and didn’t think anymore about it, because I wasn’t going to practise law. Some firms - Blakes, Corrs, Arthur Robinsons (now Allens) - gave me interviews. Arthur Robinsons offered me articles. The sub-dean said oh, that’s fabulous, so I said yes. Really out of complete ignorance: there has never been a lawyer in my family, I knew nothing about the l-o-r-e of the l-a-w, and at that time how connections worked in the law, and I assumed that any law firm would be the same as any other law firm.
So that was a decision made, out of the way, done. I didn’t anticipate ever doing it. So I chugged on through the degree, which got more interesting, and there was another turning point that also happened. That was when we had to do a court report. Go and find a court and watch a case, any old case. So, ok, I did what I was told: I walked up Lonsdale Street, into what is now the Court of Appeal, but was then called the Supreme Court Annexe. And what was then Court 15, which is now the Green Court on the ground floor, there was a bail application running for a footballer called Jimmy Krakouer. I wrote up this court report and then came lunchtime. I went and got something to eat and was looking for somewhere to sit. So I went into the Supreme Court building proper, which had no security then – you could just walk in - and I had the most extraordinary epiphany, of coming home. I sat down on a bench in the corridor and relaxed. That experience stayed with me; I have no idea where it came from.
Q That is extraordinary.
A It was extraordinary.
Q Yes, I think I know what you mean – it must have felt something like entering a warm bath?
A Yes. Comfortable. I still feel it every time I go into that building.
Q Isn’t that fascinating - everyone has a different reason for starting in law or getting underway properly, but in your case, it was that moment – in the lunch break. So after that then, you were resolved to do articles?
A Yes, I decided I might as well.
Q Put your toe in the water. How did that period go for you? It’s strange for anyone when they’re starting out and young and fresh. You were a little older - how did it feel to be carrying out other people’s orders?
A I was quite happy to carry out other people’s orders, because I was very keen to learn, but I found it very hard to adapt to the culture of a large commercial law firm. It became pretty clear early on that this was really not for me. It wasn’t the carrying out of people’s orders; it was the cultural overlays: you know, “this is how we do things, this is not how we do things”. At that time, the firm only paid the award which was $12,000 a year, so it wasn’t a lot of money. My husband wasn’t in paid work at that time, we had two kids, so money was a stretch. I spent quite a significant amount buying what I thought were suitable clothes. I remember having Country Road tailored trousers, I had a Perri Cutten pantsuit, but I was taken to task for wearing trousers in the office, that this was really unacceptable conduct. I thought that sort of thing was pretty unfair because apart from everything else, I’d worn trousers to the interview and no-one had said anything.
Q There was a thing about women wearing trousers, even at that time, I know.
A Yeah, this was in 1988 (when) I did articles.
Q That sort of orthodoxy went a little against your grain; you were already thinking you wanted to be freer?
A Yes, I was already a grownup person, you know - I wasn’t 22. At one stage, the floor I was on organised some sort of party, and the articled clerks had to do the organising. We had a meeting and people were dishing out tasks. People were talking about who would work out the prizes for the partners. There was one that really made me back off: one was going to be for the sleaziest partner.
Q Oh, really.
A Really. I said in this meeting, “Listen, I don’t mind buttering Jatz crackers but I’m not dishing out prizes for the sleaziest partner. I’m older than some of these men; I’m a mother. I’ll be embarrassed and they’ll be embarrassed – that’s just not good”. So, one of my more – shall we say - ambitious co-articled clerks went and told teacher and I was called in, to be upbraided by a partner. “Kristine, I believe you choose not to participate.” And I said “Well, that’s really not a correct characterisation. I’m quite happy to participate in the physical organisation of this party but not to dish out a prize for the sleaziest partner.” “Yes, I see – you choose not to participate.” So this sort of event just underlined that this was not a culture that I was going to fit into.
Q So, what happened then? You’d completed articles -
A I did.
Q - and decided that sort of culture wasn’t going to work for you. Was it automatically in your mind then that you would go to the Bar?
A Well, I was so ignorant about the legal profession. Really fundamentally ignorant, and it didn’t occur to me that there were other options where I might have fitted in better. I might have gone to a community legal service, or I might have gone to the bush. I might have done much more small-scale, less culturally constrained things, but I didn’t know about them. I had done a lot of mooting at Monash and I’d had a lot of success in mooting, and won prizes and so on, so I thought I’ll go to the Bar. So out of an excess of naivete, I rang up the Bar and said “I want to be a barrister”. I got somebody a bit like the sub-dean at Melbourne (University), who said “Well, usually people have worked out what they’re doing,” and I said “Right, so what do I do?” “Well, you will need a clerk and a Master”. Now called a mentor, but then called a master. Not that that’s an offensive appellation; “master” means of the craft. (I asked) “How do I get the - ?” “Well…!” I thought I’ve really mucked this up. I’m supposed to have all these ducks in a row already. So, I decided to be logical about this. Since the firm paid the award, I thought that the time between half past 5 and six o’clock, when all the clerks knocked off, was probably my time. They hadn’t bought overtime. So I spent that time ringing the clerks. I just cold-called them: “Hello, Mister Bloggs (they were all Mr Somebody then), you don’t know me but I’m at Arthur Robinsons and I’m interested to come to the Bar and I’m looking for a Master …”. Well, the thing I really knew a lot about was evidence, because of having written this research project. The clerks suggested various names, and I cold-called the names during the same half hour, once I’d got my lists. I got some very funny answers. One person said “Oh, my room’s too small”.
Q Oh, really?! Mind you, that was a common thing for women approaching the Bar?
A Well, I didn’t know then, but I learned later when I was several people’s master that it’s not at all etiquette to refuse a prospective reader. It’s an honour to be asked and you’re not supposed to say no, but I can tell you, lots of people said no.
Q In various ways.
A In various ways. Some just said “No!”
Q But then you might have said “No” back to them if you’d seen them.
A Possibly. Anyway, a man I didn’t know called Robert Webster (who has sadly since died but who was a very, very decent and good man, and I believe a good barrister, not that I ever saw him in court) rang and said to me “Well, come and have a chat”. At that time, the police shootings inquiry was running down at the Coroner’s Court. He said “Look, you’ll never learn anything with me because I’m going to be stuck in this for the rest of my life – it doesn’t look like it’ll ever finish - but I’m happy to have you. If you can’t find anybody else, by all means”. I thought, at last, that’s safety. He said, “But keep ringing”, so I did keep ringing and quite by chance, there was a name on Hyland’s list: Brian Bourke. I didn’t know Brian Bourke was famous and that he was a legend at the Bar. So I got on the phone to Brian Bourke and I vividly remember the conversation, and it went like this:
“Brian Bourke, barrister (which is always how he answered the phone)…“ “Hello, Mr Bourke, you don’t know me, but….” “Oh, love (he said) …. Arthur Robinsons…I dunno, love – I don’t know that I’m the right bloke”. “Oh, Mr Bourke, I’ve written this thesis….” “A thesis? Yes, yes….” He said “Oh, well, come and have a chat. Come next Thursday at 2 o’clock.” I said “Mr Bourke, I’m under articles and I can’t come before 5 – they nail your feet to the floor”. He must have liked the idiom, because his voice warmed and you could hear it. “Oh, love,” he said, “You sound like you might be alright – why don’t you come up now?” So I did, and I walked into Brian’s room which was then on the 10th floor of Owen Dixon East and there was a rather dishevelled man, with untidy hair, and dandruff on his shoulders, and his feet on the desk and papers everywhere and I immediately thought, “This man is the furthest I’m going to get from a large commercial firm”. And I don’t know what he thought, because I’ve never asked him.
Q Well, he obviously was more than happy and approved. Yes, absolutely a character. You started almost right away, with him?
A Let me think about the dates…. If I entered the next Bar intake on the 1st of September, I would not have had sufficient time to get admitted and I had to get special permission. I believe I was the first person ever to enter the Readers’ Course while not having been admitted. The Readers’ Course began on Friday 1st September because despite it being on a Friday, it always began the first of the month – March and September. And the Full Court sittings were on the 4th. Brian moved my admission. I had to approach the Board of Examiners to get three days off (the) period for putting my notice up. And I had to approach the Bar Council and give a formal undertaking to the full Bar Council that if I was not admitted to practice on the 4th of September, I would immediately withdraw from the Readers’ Course. It was all bigger than Ben Hur at the time.
Q Who was on the Bar Council at the time?
A Oh lord, I’ve got no idea.
Q They must have seemed very forbidding.
A Absolutely! And so were the Board of Examiners. The Board of Examiners then sat in what is now called the American Room over in the library and they looked like the Last Supper. There was a long table and they were all down one side with a kitchen chair out the front, and Justice Crockett – he would call himself “Mr Justice Crockett” - was presiding. He was very forbidding. I sat on the chair in front of all these forbidding faces. He said “You want three days off your lodgement period so you can enter the Bar Readers’ Course?!” “Yes, yes…” (thinking it seemed like a good idea at the time). He let me sweat for a bit and then he laughed, and said, “Why wouldn’t we do that?” So, I said thanks.
Q That must have assuaged your fears.
A It did a bit.
Q So you came to read with Brian Bourke. The Readers’ Course at that time had not been very long around. Before that, anyone who went to read with a Master was pretty much thrown in at the deep end, and it was pot luck who you got. Some barristers I’ve interviewed didn’t get much help from their masters.
A Well, there was a bit of a wriggle to that too. Brian’s room wasn’t all that big and he had a reader who was just finishing up – Nicole Feeney who subsequently wound up –
Q Advising John Howard.
A John Howard’s chief of staff, before (Arthur) Sinodinos. Brian said to me, “I’ve still got someone in my room. There really isn’t any room – you should do something with somebody who does civil stuff”. So, during the Readers’ Course and for (about) a month after that, formally I shared my reading between Brian Bourke and Gerard Maguire, who’s still at the Bar. I sat in Maguire’s room – I can’t honestly remember how I came across Maguire. Maybe Brian found him, I don’t know.
Q Were theirs contrasting styles?
A While I was doing the Readers’ Course, I didn’t see much of Gerard in court because the Readers’ Course was full-on.
Q I was thinking more as mentors.
A Not really. They were quite similar. Brian was quite hands-off. Mostly, I learned from Brian going to court and watching.
Q When I interviewed Brian Bourke, he told me he’d perfected the art of juggling multiple briefs.
A You can say that again – boy.
Q Did that rub off on you?
A No. I was too frightened of messing up. That’s a big no-no, and you’re given lectures about it. But I admired the managerial skill of it. He’d come back from court, he’d pick up his phone and he’d begin ringing coordinators and he was on very, very amiable first-name terms with all of them. Your name’s Juliette – “hello, is that Juliette (of some court)? Yeah…listen, I’ve got a thing tomorrow called ‘Smith and Brown’ – listen, love, I can’t be there before half past 11. Do you think….. ? Ah, thanks, you’re a champion!” So he’d have these cases booked in, as appointments. It was stupendously clever to watch, but I never dared.
Q Well, he’d been at the Bar a very long time already by then.
A Oh, he had.
Q Because when I interviewed him at the Bar some years ago, he’d done 50 years at the Bar. When you came to read with him, he’d have had a good 30 years.
A Easily - yes.
Q He was certainly a character. He had a very wide practice as well – a varied and wide practice.
A Well, it was all crime and liquor.
Q Yes, he wrote a couple of books about liquor laws.
A I did do crime and I had thought I was going to do crime, but whenever I had a brief that wasn’t crime, Brian would say “Oh, love, that’s that civil stuff. You need to see Ronnie.” “Ronnie” was Ron Meldrum QC whose room was literally next door to Brian’s and “that civil stuff” covered everything from a will, to an insurance contract, to a mortgage, to a covenant on land, and “Ronnie” helped with a lot of “that civil stuff” and was unstintingly kind and supportive to me.
Q So, it sounds to me from those early times at the Bar that you came across a fairly collegiate atmosphere or would you say not necessarily, beyond the people you were immediately dealing with?
A I would say it was collegiate on its own terms. It was very suspicious of women. It was quite suspicious of a person with my kind of academic record. But I think some of that was because I was mixing with criminal lawyers and common lawyers. Had I been doing high-level commercial work, that would have been regarded differently, I think. Had I been doing what in some ways would have been a natural fit for me, which is intellectual property work, it would have been different again. One of the acknowledged greats in the field in Melbourne was Dr John Emmerson who was a nuclear physicist.
Q And who donated a remarkable rare book collection.
A Extraordinary collection, yes, and I anticipated that I would get some IP work, because I know how to read a circuit diagram and I’m not frightened by a chemical formula, but it just never happened. So I think some of this suspicion - “oh, you won the Supreme Court prize, oh you’ve got a PhD” - was because I was in this more knees and elbows environment, of criminal lawyers, common lawyers. I don’t mean for a minute either of those comments to refer to either Brian or Ron, both of who were unfailingly supportive and helpful, as was Michael Dowling (QC).
Q There were a couple of women at that time specialising in criminal law, like Betty King – did you think at that point that you might follow down that path, or were you by then starting to seriously entertain notions of going more into the equity side?
A I became disillusioned with practising criminal law pretty early.
Q Why was that? Depressing?
A The subject matter can be depressing. It wasn’t that, so much. It’s very disheartening to think a case through carefully, to think of the legal arguments you can run, and then to find that the facts collapse because your client’s been lying to you. I found that really quite disheartening - you’ve got to be prepared for that happening, at any instant. So there’s not much point having put all that work in. At that time especially, there was no service of material in a criminal matter in the magistrates’ court, so it was all trial by ambush. So, the next thing that happens, you’ve got your case prepared, you’ve got your accused behind you. He’s pleaded not guilty, he’s told you his version. The clerk says, “Call Juliette Brodsky”. You turn around to your client and he says, “Oh, hell, I thought she was in Sydney – get it stood down – quick!” And the whole thing collapses.
Q But it must have suited people like Brian who was used to doing things on the fly, whereas it sounds to me like you prefer a more methodical way of doing things?
A Yeah, that’s probably true. You’ve got to like dancing the quickstep to do crime well!
Q You mentioned before Brian Bourke being with Hyland.
A He was.
Q What about you – when did you formally sign up with a clerk - were you with Hyland yourself?
A No, no, I wasn’t.
Q Because sometimes it was expected you were to follow your master, when it came to choosing clerks?
A No, I was going to be my (own) master when it came to choosing clerks. The other thing the person on the phone said was: you need a clerk. Well, I didn’t know how you got a clerk either. I’d asked around a few people at the firm and nobody had any idea about that either. I can’t quite remember how I found out who had the floating work. I knew I would need it, because I was going to leave straight after articles and I anticipated, correctly, that that would not lead to the firm briefing me. I hadn’t made any connections as an articled clerk, so I knew I would need floating work. It’s thirty years ago now, but somebody told me John Dever had the floating work. I wrote a letter to Dever’s list and I was accepted onto John’s list. Although I left John’s list after 9 years, he gave me the start because he did have the floating work. By golly, it was varied. Ring, ring – “Ballarat tomorrow.” “What is it?” “Brief’s on its way up.”
Q So you really learned to do things on the run.
A I did. For the first three years, every single brief was something new, something I didn’t know how to do, something I had to do the research for. I worked very hard but I also messed up a lot of cases.
Q In what way? I can’t imagine you messing up.
A Just ignorance, really. It’s really an ignorant thing to do, to come here straight from articles, especially articles at a big commercial firm. I didn’t have the hands-on knowledge of the mechanics, but I have to say, I don’t remember ever being in front of a court where if I said to the court “that error is my fault, don’t hold it to my client’s account”, that was not well received and acted on. Courts try very hard. They’re subject to enormous criticism in the ignorant popular press. Courts try really hard to get it right and if you’re honest with a judge or a magistrate, they respond. Why would they not? So I didn’t do any permanent harm; I just made a fool of myself.
Q It sounds as though your honesty was to your advantage, and that would have developed a lot of confidence in you, both from colleagues and from your clients?
A I hope so. Hard to tell.
Q Do you have any notable cases from that early period when you were a baby barrister, not that I think of you as a baby barrister.
A I was a baby barrister!
Q Do you have any cases you remember either fondly or with a certain amount of chagrin that you would want to share?
A Ha. I never developed a big practice as a junior to a silk. Most of what I did, especially in that first nine years on John’s list, were magistrates’ courts, masters’ courts, precursor tribunals to VCAT. I vividly remember saving a man’s driving licence and I was very proud to do it. He was a truckie. He was on his third Driving While Disqualified, and he was supporting a wife, three children and his mother-in-law, all of whom were living in the house, and he was the sole breadwinner. If he was disqualified again and / or went to jail (and the statute then said he had to go to jail), that family was going to have no income. I went and asked Brian what I could do for this bloke, and he said “Whatever you do, love, don’t let them interfere with his licence”. That meant, don’t let him go to jail as well. He had a very good reason for driving while he was disqualified. The first two were when he was young and stupid, they’d been two decades before. This one, he was only driving his truck to earn a living. He knew he was breaking the law. Somebody who wanted his shifts had dobbed him in to the boss, which was a pretty low act, I thought. Anyway, I did, if I say so immodestly, a pretty good plea. His licence wasn’t interfered with, he got a jail sentence wholly suspended and I felt very happy I’d saved his income. I got back to my desk and there arrived a very delicate, very beautiful floral arrangement. Tiny little white rosebuds, tiny little white Michaelmas daisies and gypsophila – this ethereal white arrangement of flowers. When I rang this fellow up to thank him, he said “Oh, you was magnificent – you was like a bulldog!” which rather took the shine off the delicate white flowers.
Q High praise indeed. Did you ever hear from him again?
Q You don’t tend to hear from clients.
Q That must have been very special. Where were your chambers by the way at that time?
A I think I was still in Brian’s room, I think I was still a reader. I’ve got a memory of that being on Brian’s desk.
Q Because it could be hard for women at that time to be accepted on particular floors…?
A That floor was a very blokey floor; I think I was the only woman on it. After I finished reading with Brian, I had a room in a suite in what was then called Latham Chambers, which was in the National Bank building. In that suite, among other people, was Lex Lasry who was a new silk. He did give me some junior briefs. I did a Director’s Reference with him when I was about five years at the Bar, but more significantly it was Lex who asked me to be one of his counsel assisting when he was the Metropolitan Ambulance Royal Commissioner and that was a career-changing brief for me.
Q The findings were handed down in 2001.
A It began at the end of 1999 and was not unrelated to my leaving John Dever’s list and moving to Glenda McNaught’s list.
Q May I ask, was that the beginning of List G?
A Yes. Glenda McNaught had been a personal assistant to a group of silks including Ray Finkelstein, Alan Goldberg and Ron Castan who were up in 200 Queen Street, which was then known as “the Golan Heights”. They arranged that Glenda became a licensed clerk and set up what was then List G. That was in around 1992 or 1993. I joined Glenda’s list in 1999.
Q What was Glenda like?
A She was a tiny little firecracker, red hair, full of energy, and of strong views about almost everything. I found her a very helpful clerk in all kinds of ways. You know, don’t you, that the old (clerking) model was a flat percentage but now on List G and List A, there is an employed clerk. That’s worked very well, and our clerk, Jane King, did a great job managing the transition and improving the list.
Q There has been a lot of debate about the role of clerks during the last 40 years.
A That’s probably right.
Q Virtually every Bar News issue had some controversy about paying clerks. So, it’s settled finally, has it?
A I don’t know about settled, but there are now a model where some lists simply employ a clerk. It’s fundamentally different in Sydney
Q You think it should be a nationally uniform list?
Q It has to be down to the lists?
A Well, the list is a peculiarly Victorian invention, really, as I understand it. In Sydney, you have to know someone to get on a floor. I can’t imagine how I would ever have made it as a barrister in Sydney because I wouldn’t have been able to start. The advantage of the Victorian model which has monthly tenancies, as you know, and which has these large lists that can offer work to people with no connections is that people get a start.
Q The Victorian Bar was modelled somewhat more along the lines of the Irish Bar.
A So I believe.
Q So, consciously a different tradition right from the beginning, which is interesting in itself.
A Don’t get me wrong: I’m grateful to John Dever, I would never have made it at the Bar without John Dever. But it was time for a different kind of list: Glenda’s list was a commercial and admin list. I was already by then, most interested in admin law and in particular this brief in the Ambulance Commission (from Lex Lasry) was a big brief for me.
Q I’m going back a few years now, but I remember there were findings about the company behind the ambulance emergency dispatch illegally making phantom calls, to bump up their performance rates. You were instrumental, I believe, in bringing about the expert evidence there.
A I did have control of the expert evidence regarding the automatic call distributor, the precursor of VOIP protocol. The mathematics underlying that is what’s called “queuing theory”. I had a very good expert, Dr Michael Rumsowicz who was the expert that assisted the Commission on all of that evidence.
Q You understood queuing theory - can you explain in lay terms how it was important for understanding what the Ambulance Service was doing wrong?
A It wasn’t so much what the Ambulance Service was doing wrong - what really went wrong was that by then, the public service had so divested itself of engineering expertise (part again of the managerial culture that’s controlling our lives) that the performance criteria had actually been written by an accountant, who knew nothing about how the system could perform, or how it needed to be required to perform. So, the underlying mathematics in the end didn’t matter much. What mattered was being able to present to the Commissioner a clear explanation of seeing how the calls were dealt with, in order to identify what had gone wrong. The fact that I understood the mathematics didn’t really matter so much, but I could talk to the expert in his own language.
Q But nevertheless important for the findings.
A Well, it was an aspect of the findings.
Q People died, though, as a consequence of some of these calls.
A People did die, but the company that was responsible wasn’t really to blame because it was performing to its criteria in broad terms. The problem was, the criteria were not fit for what they needed to do.
Q By then, this was a turning point for you as far as your practice was concerned.
Q We’re now talking the late 1990s – and you mentioned Lex Lasry bringing you into this. By then had your practice become what it is now?
A No. As I came out of that Commission, I was briefed by Bernard Murphy – now Justice Murphy of the Federal Court - who was at Maurice Blackburn, in a very early class action, the GIO class action. That came about because a person I had known from the 10th floor of (Owen Dixon) East, Herman Borenstein (who had known Bernard Murphy from when he, Borenstein, was at Slater’s as managing partner, and he, Murphy, was the articled clerk) had suggested that I might be a good person to be in this case. That was the first class action I was briefed in. I say that the Ambulance Commission was a turning point because it was the first big brief that ran over months that I had ever had, and I learned a lot of skills, myself, that I needed to manage an enormous case. That’s not a set of skills you need when you’re thumping around a magistrate’s court, doing a day here and a day there.
Q What were the skills do you think you mostly developed? You were already comfortable with complexity by dint of your background and your intellectual training.
A I think it was just applying a high level of analysis to that amount of factual complexity. One can think of this as the approach of analysis to a large data set of experimental data. I can’t really explain it any better than that.
Q What about your actual advocacy skills during that time? They were obviously evolving as well. Did you come into your own, as it were?
A I think I became a much more effective advocate during the course of the Royal Commission, and in particular, in handling that expert evidence. That was the first time I’d had an opportunity to handle evidence at a high level of intellectual complexity, and I found in myself the ability to unpick that sort of detail and present it. It gave me a lot more confidence as an advocate. The other thing that changed was that there was a lot of high profile attack on the Commission, some of which was directed at me personally, most of it directed at the Commissioner. During that, there was a necessity to respond in the Commission to these extremely aggressive and very personalised attacks and it enabled me to detach in a way that has been a great assistance to me ever since. About that time, I read an interview in the Financial Review with the former Chief Justice of the High Court, Murray Gleeson, and there was one sentence in that which changed everything about how I try to appear in court. He said “I always placed great importance on remaining calm”, and I thought, “That’s the key”. And it is.
Q He is a very orderly man and has a very particular routine that helps him get into the zone of feeling calm. Is that something similar you do? I suppose everyone has their own way of finding that calm. How do you do it, Kristine?
A I try to immerse myself in the case sufficiently that by the time I get to court, whichever direction the questions will come from or whatever might happen from the witness, (then) I know the case well enough that I don’t need to go back to notes. I can change direction in the case without needing to look at documents. Once you have internalised the case enough, you can keep your eye contact with the bench and the witness, if there is a witness, and you will have sufficient confidence in your knowledge of the case to respond.
Q You would in a way have learned to read people very well in that time. By internalising, you can then monitor what they’re doing?
A Yes. One of the things that I observed about Brian cross-examining is that he never used notes. I’ve tried to say to my readers, the key to cross-examining is that you know the case so well, you can feel it when the witness says something that doesn’t gel. You can feel “oh, that’s not right.” Once you’re at that level (of knowledge of the case), you can keep eye contact with the witness, which means you can control the witness. You can watch for the fleeting expressions and listen for the catch in the voice. Because when they’re saying something that’s not quite right, you can feel it.
Q You haven’t at any stage encountered any accomplished liars?
A Oh, yes, I have.
Q So, how do you know if you’re in the presence of one?
A Those cues are not always there, but you know the case. So, however accomplished they are, if you know the case - “hang on, that’s not what was in the second last invoice. Just hold on a minute. Are you sure about that, are you, Mr Brodsky? Yes, good, just wait a minute….”.
Q You must have discomfited a fair few people in those years?
A Well, a fair few people have discomfited me too!
Q You mentioned before about aggression – you’ve been the recipient of some aggression at different times.
A Well, all barristers are the recipient of aggression, aren’t they? Some judges are more courteous than others. One of the problems for women, though, is that we are usually physically smaller. There is a kind of presence that comes with being a well-built, six foot two man. Our voices are usually higher-pitched and most people when they are tense, the pitch of their voice and the speed of their enunciation rises. I’ve made a very conscious effort to slow both those things down. I would estimate that my voice has dropped half an octave in the last 30 years, really from constant practice to keep the pitch down. And that’s because as the pitch of your voice rises and the speed increases, you sound shrill.
Q There is a similar problem in radio: there was always a perception that women sounded shriller – “we don’t like women on the radio”. Women who work as broadcasters have to lower their pitch.
A Same problem.
Q It’s very similar indeed. I don’t suppose you ever encountered a judge in those early years who said “I can’t see you” or “I can’t hear you”, which used to be a problem for women barristers? I had an anecdote from Betty King that a judge couldn’t “hear” her because she had the wrong stockings on.
A No, that’s never happened to me. When a particular judge retired from the Court of Appeal, I gave away to Fitted for Work (a charity you’ll have heard of) seventeen suits with skirts. I have not bought a suit with a skirt since.
Q I noticed when you took silk, you were wearing trousers in that photograph. That would have caused a scandal in another time but by that time, there was no problem.
A That was in 2003.
Q So, a successful junior – you were constantly busy in those early years? You were getting increasingly involved in class actions, definitely.
A A successful junior in the sense of a stable practice, earning good money, yes - not a successful junior to silks. I never had a big junior practice.
Q Do you wish it had been different, or were you happy the way you were? I know many depended on silks, to get ongoing work.
A No, I think it taught me the craft.
Q It’s nice, the way you call it “a craft”.
A It is a craft.
Q By the time you took silk, do you feel you’d largely perfected the craft or do you see it as a lifelong learning exercise?
A Oh, nobody ever perfects the craft. I took silk because I wanted to continue to be in big cases – by that time, I’d been in the GIO class action for about two years, by 2003. I’d done some other bigger cases and I wanted to take bigger work that involved needing two or more barristers. That was the old criterion. (Jeff) Kennett in the 1996 Act had done away with the two-counsel rule, but I thought it was a good criterion. By the time you want to do work that needs two minds, that’s when you take silk, and it seemed like the right criterion.
Q There was a lot of upheaval at the Bar at the time those draft laws were announced –
A My word.
Q I remember Kennett saying, “the lunchbox ride is over”.
A Part of the problem is that he never understood how the Bar works.
Q He attacked it often enough.
A Yes, I know. He thought – and I can understand why he thought – that it’s just an anti-competitive club. There’s some truth in that – there is a measure of anti-competitiveness about it, but there’s also real value in having a group of people who have no allegiance to anybody.
Q They are servants of the state.
Q Just before we discuss a couple of your cases, I wanted to ask you about your readers. You had a few.
A I had five readers, each of them uniquely themselves. Each of them different, each of them I learned things from. I hope they learned something from me!
Q You were happy to take readers – you regarded that as a natural part of your province?
A I think it’s an enormous honour that someone wants to read with you.
Q So, you were approached by each of them. Was that a consequence of some of the work you were doing?
A I think so. My first reader was Judith Bornstein who transferred from Chris Maxwell, who took silk. At that time, you couldn’t finish with a person who’d taken silk. She came across, I believe, because I had run a case in front of her husband up in the Industrial Relations Commission. She was full of energy.
Q You certainly need a lot of energy.
A My word, you do.
Q How do you keep yours going? Just the sheer intellectual interest in what you’re doing?
A No, I think it’s been a great help to me in the last twelve - thirteen years that I have practised martial arts. That has been good for me physically and it has been good for me emotionally. It’s very good for staying calm.
Q Which branch of martial arts are you doing?
A Well, over the years, I’ve done various tai chi forms, I’ve done some kung fu forms, I’ve done Bagua Zhang and at the moment, I’m learning with a different Chinese master a different tai chi form and some associated skills.
Q Do you feel this feeds through in a neuroscientific sense?
A Yes, I do. It takes a while – it takes probably a couple of years of practice to really calm down your central nervous system, but it does do that.
Q That’s fascinating. You became increasingly involved in class actions but at the same time, I’ve noticed from the 90s onwards, there did seem to be a lot more class actions than previously. Why do you think that was? Why was the climate right then? It happened of course to coincide with your practice.
A I think really much of it can be attributed to Bernard Murphy’s success in GIO. That was really a groundbreaking class action. This is public knowledge: his firm had taken the risk in supporting it. It resulted in thousands of people being paid small amounts of money, in the order of $5000 each, which none of them could have afforded to litigate for, in consequence of misleading conduct. That was really a good use of the vehicle for exactly what it was intended for - the recovery by a large amount of people of small amounts of money.
Q It was a record amount at the time.
A It was a record at the time, and remained so for some time.
Q Subsequent class actions you were involved in resulted in even bigger amounts of money for the plaintiffs. That was a tribute to your work.
A Oh, I don’t know about that. The team.
Q The team, yes.
A Julian Burnside had been involved in that case. But it’s a very powerful vehicle for all kinds of cases. There’s a lot of talk in the press about it being a terrible imposition on commerce, especially shareholder actions, when really it’s just one group of shareholders paying another group of shareholders. That policy question is currently the subject of examination by the Law Reform Commission. But people focus too narrowly on that – it’s been used in lots of places. I conducted a small class action for Vietnamese, Cambodian and Thai piece workers who were sewing blinds, for breach of their award. Now we got them 82%, from memory, of all the outstanding money they’d been owed. Those people were not even literate in their own languages, let alone English; they had no hope of suing their employer. That was an action the union took and it took it together with a representative who represented those workers. That kind of class action doesn’t make the business pages, but that kind of class action makes a big difference to the plaintiffs.
Q It’s also, I would think, a reminder of what the law exists to do -
Q - As far as keeping certain companies in line; it’s not just about one pool of money going to another.
A No, that’s right.
Q It’s a reminder above all. Do you think companies have become more uncaring, in terms of class actions that you’ve worked in?
A Well, you can ask that question in a wider context than class actions, can’t you? For instance, occupational health and safety laws have become increasingly protective of workers. Years ago, when I was an undergraduate the first time, I worked as a holiday job in a sheet metal fabrication factory. The guards had been taken off these 80 ton presses because it speeded up the work. I saw a woman with a bench drill run through her hand, which reduced it to a mangled mess of splintered bone and meat. And the first thing that happened was the foreman brought a disclaimer form - before he got the first aid box. Well, that wouldn’t happen (now). So you can ask the question in a wider context than litigation. You’d have to say that conditions have improved, for all kinds of reasons, but probably the main reason they’ve improved is because the world seems to be now run by insurance companies. That has some beneficial effects and it has some detrimental effects.
Q You’ve appeared in a number of Royal Commissions, acting both for plaintiffs and the other side. What have been some of the most challenging aspects in appearing in these commissions? There’s always a huge amount of work and they’re very political.
A It’s not the work. There’s very often a political agenda running underneath. That may be a tide running in your favour or running against you, but it’s always there. Sometimes even when it’s running for you, you don’t necessarily want to be seen to take advantage of it. Calibrating it can be a delicate balancing act.
Q Can you give an example of where you had to do that?
A I’d rather not.
Q That’s fair enough. The Royal Commission into sexual abuse never really finishes – I believe you acted for seven survivors of sex abuse.
A I acted in four case studies. Three of those case studies I acted for survivors. I think it was the Yeshiva one which had seven. I acted for people in the Ballarat one. I’ve also acted for a responsible person, for Archbishop Hollingworth in the Tasmanian case study. When you say “it’s never finished”, the Commission itself of course has finished –
Q I mean the fallout.
A Yes, what we’re beginning to see is the beneficial effects of it. For instance, I ran into Dr Vivien Waller on Monday after court, who has been representing survivors of institutional sexual abuse for more than twenty years now, and she said, “It’s terrific. The limitation period defence has gone, the Ellis defence is about to go. People now can recover what they’re entitled to”. So that is a longstanding beneficial effect – that institutional change in how the law operates. I think the Royal Commission will stand as one of the enduring monuments to the Gillard Government. She was greatly criticised for setting it up. It’s had a very beneficial effect I’ve personally seen at individual levels. For instance, in the Ballarat Royal Commission (case study), one client was so traumatised by not only what had happened to him in Ballarat but what had happened to him at the hands of Towards Healing which is the redress scheme that had been established in Melbourne, that he couldn’t drive to Melbourne – I had to go to Ballarat to interview him. Because if he had tried to drive to Melbourne, he had to stop and vomit, turn his car around and go home. By the end of the second phase of the Ballarat hearings, he was one of the people who went to Rome to see Cardinal Pell give his evidence. He was a changed man; he could not only come to Melbourne but I ran into him outside the County Court.
Q It’s healing. Cathartic.
A I’m no believer, but Jesus of Nazareth got it right: the truth does set you free.
Q You said on the phone to me the other day that whoever it is you act for, you try to find the emotional undercurrent in the work that you do. That’s unusual - many barristers steer away from that because they feel it interferes with what they’re trying to do. However you’ve gone the other way. You try to find it and you try to release it. I’d like to hear more about that.
A I think I said to you when we spoke, I was in the first group of barristers that the Bar ever trained, I think in 1992 –
Q In mediation.
A In mediation, yes. The course was very good and interesting and I learned all sorts of things. But I didn’t really learn about mediation, despite the text books, until about six months after that training. It was for a spec builder against the National Australia Bank. It was about the time when the banks were suffering the after-effects of what Alan Bond and Christopher Skase and everybody else had done to them, and how they were responding was calling in their small loans. This man was a spec builder who had been trading for over twenty years. He would buy a piece of land with his own money (he had enough capital for that), and would then approach the bank who would finance the materials, he’d build two or three houses on the land, sell them off and repay the bank. That had been a successful model for him for more than twenty years. The bank had called in his loan and he couldn’t pay it – he was on the verge of bankruptcy. This was a mediation to see if he could settle the bank’s claim.
The bank sent a fairly junior officer with the file, who’d had no relationship with this man at all – he was just the person they’d sent to the mediation. And we did the usual things: we had the common sessions, then we split apart, I did shuttles like Madeleine Albright. That was fine, and then we were stuck. We were stuck $80,000 apart. He had said consistently, all day, “I was a good customer of this bank. I don’t know how they can do this to me.” The fellow in the other room, the file operator, as I say, had no relationship with this borrower, who had had a longstanding relationship with the bank manager. I don’t know why it occurred to me, but I thought, what’s to be lost? I said to the guy from the bank, “Listen, can you come and tell him he was a good customer? Look through your file and you’ll see it’s true”, because I had read the documents. The file operator said, understandably enough, “What’s the point of that? He still owes us money, we’re not going to move and I’m at the limit of my instructions.” I said, “I don’t really know what the point of that is, but it can’t cost you anything. Why don’t you try it?” So he thought “this is ‘girl being silly’, but ok”. So we come back into the room and I sit them across from each other and I say to the debtor, “The bank has something it wants to say to you”. And the file operator says, “I’ve looked through the file. You were a good customer. I’m sorry it’s come to this, but I can’t move on the number.” The guy said, “Ok,” and he moved $80,000, and they settled.
That’s what taught me that underneath any dispute that seems intractable, anything that’s going to get to the point of litigation - there’s always an emotional agenda. Especially, not so much in litigation itself, but especially in a mediation, if you can find that emotional agenda and discharge it, you’ll get a result, a resolution. Now, sometimes you can’t discharge it, but at least you can bring it out into the open so everybody acknowledges that that’s what’s going on. You can say, “Look, you feel the deceased wasn’t truthful with you. You feel this person’s trying to take advantage of the fact that the deceased has died. You’re probably never going to agree about that, but can you agree that that’s each other’s point of view and now can we park that, and we’ll get on with resolution”. And usually that works.
Q I hope they are exercising that approach in the Royal Commission into banks, in particular!
Q What you’re saying, though, is so important. It is about acknowledgement of what people have suffered and experienced.
A Yes, it is.
Q So much of what we term as “grievances” really boils down to that, doesn’t it?
A It does. It does.
Q Often if they’re just brushed over, or diminished –
A It gets worse. It just festers.
A You see that very clearly when you come across vexatious litigants. I’ve had to deal with a couple of people of that kind, all the way to the High Court, and I can tell you, that I have never seen a case of a vexatious litigant, and I don’t underestimate how bloody difficult they are to deal with, because I’ve had to deal with them, always they have actually suffered a wrong. What’s gone wrong is that they can’t get past it.
A But if somebody had said “you’re right – they didn’t do the right thing by you, but if you try and push it further, you’ll lose your house, you’ll lose your wife, etc – don’t do it”. Instead of saying “look, it wasn’t really wrong, it was ok, there’s some reason….” brushing over, brushing over. “Yes, it’s true. You did get bad service from your solicitor, that’s right, and that case you shouldn’t have lost – that’s right, too. But let it go.”
Q How much do you think of the legal profession’s caseload would be reduced if they adopted more consciously the approach you’re talking about?
A Well, back to “the world’s run by insurance companies”.
Q I guess I was looking for a little ray of light there! Maybe there isn’t.
A Well, if insurers were a bit more sensible about what people could say…. I mean, hospitals are beginning to grapple with this. Rather than saying “make no admission of any liability”, if a surgeon says “That did go wrong, I’m sorry, I’m a human being. I dropped the retractor at the time”, or whatever, most people understand - that’s a human being, people make mistakes. That doesn’t automatically mean that’s an admission of liability -– “let’s go to court”. That means, “he’s a human being, he made a mistake”, no more. Most people can understand that everyone makes mistakes.
Q How about conscious intent? I’m thinking of the Royal Commission in the Northern Territory, which involved indigenous youth, Dylan Voller. We all remember the Four Corners story where we saw him restrained, with a spit hood over his head. Those sorts of situations, where there is a definite case of a grievance but not necessarily conscious admission on the part of the authorities that restrained him. He was under age at the time.
A That’s a different sort of situation entirely. That’s not where a human being has made a mistake. I appeared in that Royal Commission for a person who had been working at the Northern Australian Aboriginal Justice service and was, at the time I appeared for him, working for Jesuit Social Services, and he had enormous amounts of useful evidence to give about alternatives: how do people deal with youth misbehavior in other jurisdictions? That evidence was well-received and found its way into the final report in recommendations. But it gave me an opportunity to see the minister for corrections at the time – to cross-examine these people – and they were astonishing. The minister for corrections at the time, a man called John Elferink – one has to admire his honesty, because he said in the witness box (to the best of my memory, I don’t want to defame the man), yes, he knew the increasingly harsh penalties did not reduce youth crime but after all, he had to win elections.
Q The same old story.
A Well, but at least it was honest.
Q But it does come down so often to that, doesn’t it?
A It does.
Q The push to win elections, and we’re seeing it right now. It’s in the papers at the moment – it has implications for the federal government.
Q The punitive approach as opposed to taking a more understanding approach.
A Yes. Well, if they were really hard-headed about it, they’d go into the hard-headed economics, because it’s much, much cheaper to offer people paths away from further crime, away from being incarcerated into more productive ways of dealing with their situation. So-called restorative justice works – well-established (to) work – especially with youth crime, and it’s much, much cheaper.
Q Yet it sounds like you have a restorative justice approach, in effect. I’d be interested to know if that’s something you apply to one of your practice areas: wills and estate. That must be an area where you really have to use this approach.
A Well, in a family where the communications are working well, you don’t have a case, because the person leaves a will that everybody knows about and understands. They die, the property’s distributed according to the will, people get on with life, they grieve the death, but they don’t feel cheated or –
A Overlooked, or disrespected or slighted. You only see cases about disputed wills where the communications aren’t working well, and of course the problem is, the one person who could clarify what was said isn’t there. So, almost always in a fight about a will – I don’t include things like construction cases where the will’s unclear - but in a fight about a will: did the person have capacity, or should the person have left some money to somebody? You almost always find that the deceased has said one thing to one set of people, and another thing to another set of people, and it’s a paradigm case in a mediation where you have to bring those things into the daylight, and you have to say “look, it seems the deceased said this to you, and this to that person. We can’t resolve that because he’s not here. All we can do is put our positions and then agree to put them aside to see if we can resolve the dispute.”
Q How well does that work on the whole, do you find?
A Pretty well.
Q They do actually meet halfway, despite what may be very big differences?
A Mightn’t be halfway, but they usually meet.
Q And it tends to be a lasting outcome? Do you ever hear about that?
A I’ve only heard about one case where one of the solicitors got sued, for having pushed a person into settling. I think it probably is usually a lasting outcome.
Q I’m curious to know, have you come across an increasing incidence of inheritance impatience in your practice? There’s been a fair bit of talk in recent years about this.
A I know. I haven’t had cases about it, but I’m aware from various kinds of cases that all kinds of elder abuse is quite common. Indeed, I wrote an article for the Age, which was published anonymously on the advice of the editor, about the dangers in the assisted dying legislation.
Q Would you like to expand briefly on that?
A I think it’s not hard for anybody with a motivation to do so, to persuade a person who is sick and frightened, whether they’re old or not (if they’re old, even more so), that they’re really a burden on the family and that really it’d be a kind thing for them to do if they were no longer there. If you’re in a situation where you can persuade a person of that, it’s not far from there to “Doctor can help”. And I think that’s very dangerous. People who oppose so-called voluntary euthanasia are often categorised as religious zealots. I’m not a religious person – I profess no organised religion – and indeed I dislike organised religion. I don’t think it’s a religious issue at all; it’s an issue about what responsibility society takes to its most vulnerable. Elder abuse is a real thing, I’ve seen it. I’m a professional advocate. If I couldn’t persuade a sick old person that they’d be doing their family a favour, I’d be surprised, frankly.
Q Yes, it’s terribly sad… I wanted to talk about a wonderful case: the Duval-Comrie case.
A Yes, we were chuffed.
Q That was a wonderful outcome. Would you like to talk a little bit about your involvement in that because (Duval-Comrie v Commonwealth of Australia 2016) was a direct case, in effect, of government ripping off disabled people?
A Duval-Comrie concerned the method of fixing wages for people who work in what are now called disability working enterprises, but what used to be called sheltered workshops. I came to the case because initially there was a precursor case of two people called Nojin and Prior and I came into the case because my friend Herman Borenstein, whom I alluded to earlier, got jammed. It was his case and he got jammed. It was a case alleging discrimination in the application of that wage fixation tool, because it had harsher effects on intellectually disabled people than disabled people in the normal workforce. Nojin and Prior was lost at trial, won in the Full Court on appeal and the High Court refused special leave.
After the decision in the High Court, a person who represents intellectually disabled workers made approaches to the Commonwealth, (because the Commonwealth supported this wage fixation tool, not because the Commonwealth was directly paying these people), to say “Will you now pay the other 10,500 intellectually disabled people in sheltered workshops?” And the Commonwealth said no. So a class action was initiated. That was supported by Maurice Blackburn, Josh Bornstein at Maurice Blackburn, and after – I think – two, possibly three years, eventually resulted in a settlement. In the meantime, the Commonwealth had enacted a statute designed to cut the ground from under the case, which said “if you accept this portion of what your back-pay should be, you will automatically be opted out of the class action”. There was a mediation; eventually the thing was settled on terms which used the machinery of this scheme and people recovered 70% of their back-pay, but adjusted for the taxation they would have paid if they had won at trial. So, many of them did better than they could have done at trial because had they won at trial, they would have had to pay tax on their back-pay. Under the scheme, they didn’t have to pay the tax.
Q Was that advice you yourself provided?
A I can’t disclose the advice.
Q Tyson Duval-Comrie was the lead plaintiff. What was his actual line of work?
A Well, like a lot of badly intellectually-disabled people, he did whatever work was around in his enterprise. He packed things. So for instance if you buy a pair of socks with some cardboard around them and a little hook to hang them on at the shop - that sort of packing is a common task. Various other kinds of packaging he did; I think he also did some general cleaning, but I’m now stretching my memory.
Q They were being paid something like 99 cents an hour, weren’t they?
A I think Tyson was paid just over $2.00 an hour.
Q It’s pretty terrible to think of in our country.
A We should do better than that.
Q You’re coming up for your thirtieth year at the Bar next year, I think.
A 29 years, yes, in November.
Q What has changed most for you in terms of practising at the Victorian Bar? In terms of now versus then, what has improved and what remains to be changed?
A There’s less overt prejudice against women at the Bar. There’s less overt judicial bullying of all barristers. It used to be an acceptable judicial style to roar and shout and bang the bench. I don’t think many judges do that sort of thing anymore.
Q Did you ever appear before such a judge?
A I sure did.
Q Are you prepared to name any?
Q So, less judicial bullying…
A Less overt judicial bullying!
Q I see – it’s just gone underground a bit?
A It’s just exercised a different way by some judges, not all. As I said before, most judges try very hard to get the right outcome – they really do.
Q It’s certainly not going to be helped by bullying people.
A No, that’s right.
Q You’re your own person.
A Well, some people would say “difficult, stubborn”.
Q But you have to be, to do the kind of work you’re doing.
A You have to stick to things, yes.
Q What else has changed? There are so many more women at the Bar, but I do notice since I did a little work on Victorian women barristers that it’s still roughly a fifth of women practising at the Bar. It hasn’t changed that much, despite a model briefing policy years ago –
A It hasn’t changed as much as you might think in thirty years, but there are clearly many more women in judicial positions – that’s a big change. My daughter’s a barrister. I believe that she and I were the first mother and daughter at the Victorian Bar – I stand to be corrected. She’s now nearly ten years at the Bar, so that was a while back.
Q You were directly influential in her decision to go to the Bar?
A I don’t know about that. She didn’t want to do law initially. She did various other things, a bit like me, but not for so long.
Q Is she in commercial law, like yourself?
Q Do you get to compare notes a fair bit?
A Oh yes, we’ve done a few cases together. We’ve done a lot of judicial review cases together.
Q Can you talk about it?
A Administrative law, but not what’s called merits administrative law. Not what decisions should have been made on these facts so much as did the decision-maker exercise proper legal process? That’s a matter that a judge can, to use the legal word, supervise.
Q You’ve also had something to do with disciplinary procedures – what has that been like for you? When people have been struck off the Bar Roll? Have you ever had to do that kind of work?
A I have done that kind of work – not against barristers, but solicitors.
Q Is that a line of work that interests you particularly?
A Yes, it does interest me very much.
Q Because of the process involved?
A Partly because of the process, and partly because if we don’t hold ourselves to proper standards, why should anybody listen to anything we say about standards anywhere else?
Q Yes, rightly so. What else has changed at the Bar?
A You can wear trousers in court.
Q That’s true. No skirt. No stockings.
A No wigs!
Q Though don’t the majority of (Bar) members still vote in favour of wigs?
A Well, the Chief Justice of the Federal Court said years ago, no wigs. And the past Chief Justice of the Supreme Court, Marilyn Warren, said last year “no wigs”. So it doesn’t matter what the Bar thinks, really.
Q I was looking around for – oh, there it is! Your wig.
A It’s had lots of wear.
Q Did you buy it from someone? Did it belong to someone else before you?
A No, I bought it by mail from Ede and Ravenscroft in London.
Q Some people inherit their wigs.
A Yes, Brian Bourke had a wig that he bought from someone on the staircase of the Old Bailey when he was there as a very baby barrister. It was a frightful thing, it looked like a dead rat. It had all come uncurled and was dark yellow. It was frightful.
Q You would have had occasion to know that wig rather well. Did you ever encounter any prejudice on the part of clients?
A It’s hard to know. What you observe is that you don’t get the same level of work as men who, others might say, don’t do as good a job as you do. People have said that to me. You don’t know about the briefs you don’t get.
Q No-one’s ever told you afterwards, “I’m sorry, Kristine, but we couldn’t give it to you because the client objected”? It used to happen to women barristers in the past.
A I have had it said to me later - yes. The other thing I realise speaking to you is that the people who were significant ongoing help to me, especially as a young barrister, were not women. All of them were men.
Q Did you approach any women for help?
A No, not that I remember, and I don’t know who I would have approached at that time, especially in those first ten years. But I realised that, speaking to you. These people were very good to me, they were always willing to answer a question, always willing to help, but they were all men. I remember Michael Dowling. I had a room near him, next door for about seven years. He was at that time a well-established, eminent silk, and I went in to him one day with a question about how to plead a magistrate’s court complaint for something – I was very junior, and he helped me with the pleading. I said, “Michael, I’m sorry to bother you with such a small claim” and he got really angry and said “Don’t you ever say that to me again. This is the client’s case; it matters just as much as any other case. Don’t you say that.” That was very good teaching.
Q That became your approach too?
Q Taking silk, were you ever worried that work might tail off?
A It’s always a dangerous thing to do. Yes, I had seen two people take silk and fail completely, so I knew that that could happen - yes. It’s always a dangerous thing to do.
Q One change I’ve observed as having changed at the Bar is a much more conscious interest in barristers’ wellbeing. So a person who’d failed for example - in the past, there had been some suicides at the Bar.
A Yes, I knew one person who had committed suicide for that reason.
Q It’s taken rather too long, but are things better now for barristers in terms of what they go through? There was an article in the Sydney Morning Herald and the Age a few weeks ago about magistrates and vicarious trauma they experienced. Have you experienced vicarious trauma with the work you’ve done?
A You can get upset, but it would be overstating it to say I’ve suffered vicarious trauma. I think it’s unconscionable the way the press treats magistrates and judges. Absolutely unconscionable. Most of them work extremely hard and try very hard to get the right outcome.
Q So what can be done?
A The only thing that really can be done is to continue to try to explain to the public just how hard, how complicated these decisions are. You can’t sum up a criminal plea in five sentences – you just can’t.
Q It can’t be reduced to a headline.
A It really can’t. And that’s not in any way to diminish the pain suffered by victims, but the pain suffered by victims won’t be assuaged by attacking the judge. It won’t. Nobody’s going to bring the dead person back.
Q I enjoyed reading a lovely speech you gave to Monash University students a couple of years ago. You spoke of the importance of having a flexible approach when starting out in careers. In a sense, you’ve done that all your life; you’ve been flexible – as you said yourself, you didn’t know what you were going to do, but opportunities appeared. You went with them, you explored them and here you are now.
A When in doubt, jump.
Q That is something I don’t hear all the time being said to students – the importance of flexibility. If anything, there’s a climate of fear. “If you don’t do this, you’ll miss out.”
A It’s appalling.
Q You were saying in that speech, it doesn’t matter if you don’t know.
A It doesn’t matter if you don’t know. It is not possible to waste experience. You can’t waste experience.
Q Providing you know education is ongoing.
A You can’t waste education. It’s what makes you who you are. The only thing that matters in the end, I think, is to act authentically.
Q And when you don’t, it catches up with you, doesn’t it? You must have seen a fair bit of that?
A Oh, absolutely. I don’t mean just telling lies, I mean acting inauthentically. Fudging things, hiding from yourself. If you’ve done something wrong, say so.
Q You’ve had a family, you have a daughter at the Bar. Is that ultimately what’s kept you going all these years? The importance of authenticity?
A I think so. If you haven’t got God, that’s all you’ve got, isn’t it? Honesty. I think it’s different if you’re religious. I don’t really get that. As a person interested in the sciences, and I try and keep up as much as I can, I don’t have any problem with an abstract notion that there is something that keeps the universe in being, because it’s remarkable that anything exists at all. Quite remarkable. But the notion of a personal God who’s like a head prefect in the sky, watching what happens – I can’t understand or relate to. So, if you haven’t got that kind of personal God idea, all you’ve got is honest human relations.
Q So, where now for you in the future? Is the plan to keep practising for as long as you can?
A Yes, I think so. I’m not tired of it yet.
Q Do you have any other aspirations that you’re yet to achieve?
A Oh yes, various things, I’ve written a couple of films.
Q Films? You mean a screenplay for a film?
A No, short films that have been made. One I did went to Cannes in its day - years ago.
Q Oh, which one is that?
A It’s a short called “Pleasure Domes”. You see it now and then on SBS and it’s in the National Film Archive. I’ve got a couple of those bubbling away.
Q Based on your experiences, or nothing to do with it?
A No. That film “Pleasure Domes” is a meditation on the nature of landscape and the way we interpret landscape through cultural prisms.
Q How interesting.
A Life presents what it presents, and I think, when in doubt, jump. Why not?
Q Kristine Hanscombe, thank you very much.
A Thank you.