Interview conducted by Juliette Brodsky
Q I have three words for you: Petrus Cannasio Heerius, which sounds exactly like something out of a Harry Potter book.
A Yes, this is the background to my Tasmanian nickname, “Colonel”. It doesn’t reflect a distinguished military career. On the contrary, it started back in Grade 3 at St Virgil’s when the new boys’ names were read out. My middle name is Cadden– it’s an old family name – my paternal great-grandmother’s maiden name was Cadden but that was mistakenly understood to be Cannon and so I became Cannon, then Cannonball, Canna, etc. Then as the years passed, in the course of our Latin studies, we amused ourselves by making up Latin proper names about each other, so I became Petrus Cannasio Heerius. Cannasio was shortened to “Nasse” and then to “Nasser”. This coincided with Colonel Nasser in Egypt becoming prominent in the news, and through what’s known in English as a transferred epithet, I became “Colonel Nasser” and then “Colonel”. So, there you are.
Q You attended St Virgil’s College – that was a Christian Brothers College.
A Yes, that’s right.
Q I wondered – you might’ve read “The Doubleman” by Christopher Koch? He talks a lot about childhood in Tasmania and attending a Christian Brothers college – I wondered if that evoked particular memories for you?
A Yes. Koch also went to St Virgil’s. Our times at the school would have overlapped. One teacher, Brother Stephens, is referred to by a pseudonym but is given his actual nickname: “Navvy”. He was a pretty tough operator. He was among other things the choirmaster, not that I did choir.
Q Did Koch evoke the flavor of schools at that time?
A Yes, he did.
Q You mentioned in your book, “Can You See the Mountain”, that St Virgil’s was a pretty sporty school. Chris Koch mentioned that in his observation the Christian Brothers were only really happiest out on the playing field, playing football – “boys among boys”.
A Yes. I should add that for some time, St Virgil’s held the highest score anywhere in Australian Rules, 66 goals and 33 behinds. This was in a game against the Friends School.
Q You did very well academically. Did you find it a fairly harsh school in those years?
A No, I wouldn’t have thought of it as harsh. You’ve got to see it in context. Corporal punishment was the norm in schools. Navvy Stephens certainly didn’t hold back – if you put the line in the wrong place when doing long division, out would come the strap. There were very big classes in our second year intermediate – it was something like 90 in the whole class. I remember one occasion when doing long division algebra. There was some question – “alright, stand up those who got it wrong” and he started to administer the strap, but after about 20 (students), it was too much and he just said “sit down”. I don’t recall any frequent use of the strap by the other Brothers.
I don’t justify it or suggest we should go back to it but in context, there wasn’t a viciousness about it. Autre temps, autre moeurs, as they say. And in fairness to the Brothers, I should add that in my eight years at the school, and indeed since, I did not hear any suggestion of sexual wrongdoing.
Q You actually came fourth in the State when you matriculated, doing particularly well in Latin.
A Yes, I won the prize for Latin, but I was fortunate to be in a very good cohort. As we were going through, I think the Christian Brothers swung a few very good teachers in – particularly Brother Rooney who was a very fine teacher of English literature and Latin.
Q Was that where you got your own love of English and Latin?
A My talents were towards that side of learning rather than science or technical matters.
Q I wanted to ask you a little about your Irish forbears, and your father, Francis Xavier Heerey. He kept a couple of war diaries which you mention are now lodged with the Australian War Memorial. He sounded like he didn’t suffer too much during the First World War – he took a pragmatic approach to the business of war. Your father was unusually happy to talk about his time.
A Yes, very often people with wartime experience either want to bottle it up, or at the other extreme talk about nothing else, but Dad had a very balanced view and was willing to talk about it. I regret I didn’t ask him more about it. He grew up in Beaconsfield, Tasmania where the gold mine was (the one where miners were trapped a few years ago), and then as a young man went to Western Australia. He worked on the transcontinental railway. Somewhere he picked up some skills with the telephone – he didn’t have any formal qualifications. When he enlisted, he described himself as a telegraph mechanic and so he ended up in a signals capacity. Perhaps that wasn’t quite as dangerous, though there were plenty of dangers - the diaries record close friends being killed. There was a very moving passage where he described packing up their belongings. He used to travel around, carrying equipment on a bike.
Q Are there qualities that you feel you inherited from him?
A It sounds pretty immodest, but I like to think that I get on well with people – he had a lot of friends, and I think I have a lot of friends. No real enemies that I’m aware of!
Q I’m just wondering whether he had aspirations for you – for example, later on he was responsible for introducing you to the person who was responsible for your doing articles. Did he have aspirations for you to go into law?
A Yes, I think he did – he left school at the end of primary school. He was in politics, too.
Q He introduced you to Bill Hodgman of the famous Tasmanian Hodgman family.
A That’s right. I did my articles with Bill Hodgman – his son Michael was a very good friend. Michael entered politics in 1966 when he stood for a Tasmanian Upper House seat and was backed by an impressive sounding body called the Hodgman for Huon Campaign Committee which consisted of Michael and myself. We made a few vague promises like building a bridge over the D’Entrecasteaux Channel.
Q I mentioned that you were fourth in the State when you matriculated. In 1956, you started law at the University of Tasmania. During those years of your studies, there was an infamous case – the Professor Sydney Sparkes Orr case which took up a lot of media attention. There’s a rather lurid article with a picture of Suzanne Kemp, the 18 year old undergraduate student with whom Professor Orr was having an affair. She’s coming out of a car in very 1950s clothes – she doesn’t look 18 – she looks about 40. She described him as both an attractive man and the most “loathsome” human being she’d ever met.
A The most loathsome!
Q Which I thought was rather curious, but you got to see the trial first-hand.
A Yes. One of the many sub-plots in the case, in addition to the affair with Suzanne Kemp, was that Orr importuned a man called Milanov on the University staff, who was a psychologist. Orr harassed Milanov for interpretations of his dreams, which included a dream that he, Orr, had royal parentage – that he was the illegitimate son of the Prince of Wales, later Edward VIII (and Duke of Windsor). The initial trial in which Orr sued the University for wrongful dismissal was in 1956 and I remember going to the courtroom and seeing Orr in the witness box in profile. He had that same sloping forehead and chin of the Windsors, exemplified by the image of George VI on the coinage at the time. There was some vague corroboration: apparently, the Duke of Windsor – then the Prince of Wales - had visited Belfast, where Orr came from, at about the same time that Orr would have been conceived.
Q You didn’t want to research that a bit further?
A No. Yet another sub-plot involved a student who was a well-known artist. Orr was supposed to have pressured this man to do a mural for a house that Orr was having built for himself, in return for giving him a prize – in, of all things, the subject of Ethics.
Q You said in your book that Orr came across as a man “bathed in self-pity”.
A Yes, I got to know him personally. After the unsuccessful litigation, Orr would come back to Bill Hodgman’s firm where by this time I was articled, in ‘57-58. Amongst other things, Orr was planning to give a series of lectures in philosophy at, of all places, the Hobart RSL. At that time in Tasmania, there was an entertainments tax and Orr wanted to know whether he was liable for entertainments tax. He came into the office and Bill Hodgman understandably was a bit fed up with Orr by that time, so Orr was shunted down to my office where I was the articled clerk. I was still a fervent Orr supporter and felt he had a lot to pity himself about. His supporters regarded him as an Antipodean Dreyfus, a great martyr. I thought perhaps it’s not the nice and reasonable people who become martyrs – perhaps Dreyfus was a bit of a pain.
Q And Orr passed away a few years later, quite young.
A Yes, ultimately there was a financial settlement by the University, and then he died. It’s interesting that at the time, the current thinking that carried weight in university circles was academic freedom. Orr was seen as a hero and martyr. Most university staff and students, including myself, were Orr supporters. The fact that he’d seduced Suzanne Kemp seemed to his supporters to be a minor consideration.
Q You actually handed out pamphlets for him –
A Yes, I was handing out pamphlets in the street one day and my father came along. He good-naturedly thought this was a student prank and took one of them. By the time I got home, he’d read the pamphlet and I got the rounds of the kitchen!
When the case got up to the High Court, Orr’s case was that even if he had an affair with Suzanne Kemp, it didn’t justify dismissal. The High Court’s Chief Justice Dixon and Justices Williams and Taylor said of that alternative submission: “With this submission, we emphatically disagree. Miss Kemp was a student in the appellant’s class. She was 18 years of age and it is apparent that she was then passing through a period of turbulent eroticism. Moreover there can be little doubt that she was eager to institute a personal relationship with the appellant, but there is not the slightest doubt upon the facts as found that the appellant, having observed her feelings, became only too ready to take advantage of them and seduce her. The affair developed, under the guise of the discussion of philosophical problems and within a short period, resulted in sexual intercourse taking place between them. Thereafter it occurred on a number of occasions. We have not the slightest doubt that this conduct on his part unfitted him for the position which he held, and that the university was entitled summarily to dismiss him. We can only express our surprise that the contrary should be maintained.”
My comment is that the supposedly conservative bunch of judges was probably several decades ahead of feminist thought, in seeing the matter through the prism of exploitation and gender-based power relationships.
Q Yes, though I don’t know about this “turbulent eroticism” – it sounds like she had mixed feelings.
A Perhaps that was in retrospect.
Q Perhaps it was.
A There was one striking bit of evidence: that he had taken Miss Kemp in his car to the beach at Bellerive, across the river from Hobart to the sand dunes, and his car got bogged. He had to get the assistance of a local resident, who gave evidence at the trial. Orr’s explanation was that they’d just gone there to discuss philosophical issues, which would not have been convincing for the most unworldly of judges.
Q I’m sure it wasn’t. Was there anything about the case that created formative interest for later areas in which you decided to specialise – wrongful dismissal for example?
A No, I was interested more in the socio-political aspects.
Q You did National Service, which you quite enjoyed.
A Yes, in those days National Service was compulsory for all 18 year-olds. I did it at the end of 1956, which was the last intake in the universal system. Thereafter, they introduced a birthday ballot. National Service was something like three months in the Army, followed by three years in the Citizen Military Force (the Reserve). After a few years, National Service was abolished completely. It returned in the 1960s for Vietnam. It was a very different proposition then – it was two years in the regular Army and many went to Vietnam.
Q Did you pick up some good habits?
A Among other things, I learned to drink tea without milk. There were huge queues behind the milk urns in the Mess Hut so, being rather impatient by nature, I joined the shorter un-milked queue.
Q What about qualities of organisation – did you pick up much from your time doing National Service?
A Yes, you got the notion of a disciplined organisation – taking orders and responsibility.
Q Do you think it’s something that should be brought back?
A It’s beneficial in many ways – notions of equality and comradeship and everything. But I think a return to National Service would be unrealistic today.
One incidental benefit – because it was the last intake, pre-ballot, the Army decided to put on a bit of a show. When we concluded our several months, we had a passing out parade a la Buckingham Palace, quite elaborate, and they brought the Southern Command band over from Melbourne, and for the slow march, they played Non Piu Andrai from Mozart’s Marriage of Figaro. It was very moving - my introduction to classical music.
Q I was talking before about Bill Hodgman. When you did articles at Hodgman & Valentine, there was a throwaway mention in your book of this mysterious elderly solicitor, James Milne Vincent Counsel. You said he’d fought with a Chinese labour battalion in the First World War and had a passionate affair with a Russian princess in the 1920s.
A In Paris – that’s right.
Q Who was the princess?
A I didn’t ask.
Q So, what was he doing there?
A He was a lawyer, quite an old man by that stage, very philosophical. Lovely man.
Q Interesting name – “Counsel”. Did you learn anything in particular from him?
A Nothing much legal. His watchword: “Never neglect or ignore a generous impulse.” I wish I’d always complied with that.
Q And what about Bill Hodgman himself? Was he much of a mentor figure for you?
A Yes, he was a very likeable man. There was another lawyer I had a lot to do with – Roger Jennings – who later became Solicitor-General. Long before the Family Law Act, he was opposed to Bill Hodgman in a divorce case in which there was a dispute over the custody of children. Bill Hodgman argued against Roger Jennings’ client on the basis, amongst other things, that the children would be brought up in a house with an outside toilet. Roger’s riposte was that many fine Australians were brought up with an outside toilet!
Bill Hodgman had an uncle who had been a member of the Tasmanian Parliament. The present Premier of Tasmania, Will Hodgman, is the son of Michael. Tasmania has had four generations of Hodgmans in politics.
Just getting back to the campaign for Michael Hodgman – he stood as an independent against a sitting independent but we had mixed political backgrounds which we exploited quite shamelessly. If we were in a pub and it looked like there were Liberal supporters, I’d introduce myself and say “I’m Peter Heerey, the campaign manager and this is Michael Hodgman – you probably know his father Bill Hodgman”. (Bill Hodgman was at the time a Liberal Member of the Lower House.) If it looked like the other way, Michael would do it for me in reverse: “This is Peter Heerey, my campaign manager, you may recall his dad Frank Heerey was a Labor MHA.”
Q Did that succeed for you?
A Oh, yes. It was quite a victory. The sitting member was a prominent orchardist of the Huon, but we knocked him off.
Q There was talk in your book about how Tasmania was divided into beer lines.
A Oh yes, the north and south division in Tasmania exists to this day. Oatlands is the border, like the Mason-Dixon line. In those days, north of that, only Boag – south, only Cascade.
An interesting illustration of that division comes from the University of Tasmania. Founded in the early 1890s, it was the fourth oldest in Australia after Sydney, Melbourne and Adelaide, which as you’ll note are all named after the cities where they are, which is logical enough, like Oxford and Cambridge. One might have expected the University of Hobart. Well, that aroused some ferocious opposition from the North, so hence it became the University of Tasmania, not Hobart.
Q I hadn’t known that.
A Subsequently the universities of Queensland and Western Australia were named after the States, rather than the cities. To this day, most of the private wealth is in the (Tasmanian) Northern Midlands and Hobart is sometimes looked down on as full of public servants and general bludgers.
Q You could write a fiction book about it.
A Tasmania, I think, is more decentralised than other states, so the capital city, Hobart, isn’t as dominant as say, Melbourne or Sydney are.
Q I want to return later to one of Tasmania’s famous sons, Andrew Inglis Clerk who you profiled because he played a key role in Australia’s federation. He was Tasmania’s Attorney General and contributed to the decentralising of Tasmania. In your years as an articled clerk, were you by then considering going to the mainland? You ultimately decided to do that quite quickly.
A That was later – I wasn’t thinking of it at the time. It was a five year degree – the first two years were full time and then you did three years part time as an articled clerk. Of those three years, you could count one year as a judge’s associate. I did one year as a Judge’s Associate to Sir George Crawford who was a Launceston-based judge – his son, Bruce, was a classmate of mine. A good friend.
Q What did you learn from being an associate?
A It’s hard to put your finger on it but you got a feeling of the uncertainty of law. One of Sir George Crawford’s maxims was “Never think that just because a proposition sounds reasonable, it’s therefore the law”, which is not a bad guide.
Q You subsequently, apart from your Bachelor of Laws, did a Bachelor of Arts at the University of Tasmania. You went overseas and had what sounds like a very enjoyable time – travelling was a lot easier in those days, a lot cheaper. Then you returned and you went to work in a law firm where you subsequently became partner.
A That was at Dobson, Mitchell & Allport.
Q And you liked the work, but you became a little bored.
A There weren’t many court appearances. Although in one case - Michael Hodgman and I appeared for a couple of young men charged with a burglary offence, before Justice Peter Crisp, a very astute judge. The prosecutor was Ted Sikk. Both of our respective clients had criminal records – not very serious – but you wouldn’t want the jury to know about them. The prosecution, generally speaking, can’t bring them up but a co-accused can. When Michael’s client gave evidence, I cross-examined him and put his record to him, so the jury knew about that, and then I had my client make an unsworn statement so he couldn’t be cross-examined. Michael furiously objected to that and jumped up and down in protest. Justice Crisp was most amused and said, “I think I detect the fine Italian hand of Mr Sikk in all this”. The jury saw through all this nonsense and convicted both of them.
Anyway, yes, they were very good people at the firm, I had no complaints about that, but the work was not terribly satisfying. One day a schoolmate, Brian Doyle who had a comparable position in another Hobart law firm said he was going to the Victorian Bar, and six weeks later, I was driving off the ferry (in Port Melbourne).
Q There was a bit of an exodus of Tasmanians at that time, to the Victorian Bar?
A Yes, there’s a bit of a Tasmanian mafia – you’re constantly coming across people who’ve come from Tasmania. I was very fortunate - Graham Fricke who’d been a lecturer at the University in Hobart – he went to the Bar and was later a County Court judge - he arranged for me to read with James Gobbo, as he then was.
Q I’d like to ask you about reading with James Gobbo, later Sir James Gobbo. I interviewed Philip Dunn some time back, who said (James Gobbo) was the most exotic thing he’d ever come across, when he started reading with him, because he ate spaghetti!
A That’s right. We used to go down to some place in Little Bourke Street – I forget the name of it. He had a great friend, Peter Brusey, who was this tall elegant Englishman. You know Brideshead Revisited – he was straight out of Evelyn Waugh.
Q You mean he was like Sebastian Flyte?
A Yes. He used to say that the Catholic firms thought that because he was English, he must be Protestant, but the Protestant firms somehow knew he was Catholic. The joke says something about the sectarian divisions in Melbourne in those days. In fact, he had a very big tax practice – he used to do these tax schemes of arrangement. He’d go up to the Practice Court and say it was about consenting adults in public.
Q The Bar was smaller then of course.
A Oh, much. It was about 300 members when I started. My Bar Roll number is 810 – I take having a three digit Bar number as a mark of some distinction.
Q Where were Jim Gobbo’s chambers at that time?
A Owen Dixon Chambers, on the Eighth Floor.
Q You had a small desk in his room.
A There were a few others (on the floor): Haddon Storey later to be Liberal Attorney General, also Jack Hedigan who later became a judge. I hadn’t been there long and said to Jim, “I heard there’s a barrister called Jack Hedigan on the floor – do you know him?” “Oh yes, he’s got dark hair, glasses, Irish-looking. A bit like you actually!”
Q Now that’s interesting too, because the Victorian Bar is known somewhat as an Irish bar – it really started out that way.
A Yes, the 19th century judges and barristers like Justices Stawell and Barry, were from Ireland; Anglo-Irish, Trinity College establishment, but Irish nonetheless. The Victorian Supreme Court is modelled on the Four Courts in Dublin and the internal layout of courtrooms in which the instructing solicitors sit at the Bar table with their backs to the judges adopts the Irish system– you won’t see that anywhere else in Australia. It works quite well, because the line of eyesight goes from judge to barrister to solicitor to the client.
Q So, did you feel at home coming to what was essentially an Irish bar when you started?
A Not so aware of that - these sort of things I only discovered later.
Q What was Jim Gobbo like to read with? I believe he was a stickler for getting in very early to chambers.
A Yes, now that you mention it – he was usually probably in before I was. Among other benefits, my predecessor was Richard Stanley. I got to know Richard well through that connection and was invited to his wedding. One of Richard’s University friends was Sally Macdonald who was at the same table and one thing led to another. In fact, she was lined up with a young fashionable surgeon who had to go off in the middle of the wedding and so he left ….
Q I believe you impressed Sally with your “exquisite Tasmanian dancing skills”.
A Perhaps a somewhat exaggerated description!
Q It must have been an interesting atmosphere to be part of - I heard for example about the dining room - the Mess Hall in those days – at the Victorian Bar.
A Yes, it was on the top floor of Owen Dixon chambers – basically similar, but different location to today. It’s interesting – my son Ed has moved to Sydney about two years ago. There are many differences in the way the two Bars operate – not least there’s no real equivalent of that dining room, and also importantly no equivalent of Barristers Chambers Limited. To enter the Bar here, your only commitment is a monthly tenancy - you don’t have to provide a capital sum.
Q It’s a major barrier to entry. When you started out as a baby barrister, were you out of pocket much, or were you getting quite a bit of work?
A Oh, enough. You usually hoped to get about three briefs a week.
Q Didn’t your first brief amount to the princely sum of $18.00?
A I’ve got my old fee book here…
Q Oh, look at that – this is your old fee book and look at your nice, neat handwriting…1967, that’s when you signed the Bar Roll.
A There’s John Cain – I did a lot of work for him.
Q Later to be Premier of Victoria. These early cases that we’re looking at… you’ve got descriptions like “Brief to appear…pleas…. Hawthorn G.S….”
A General Sessions.
Q So you were quite busy. Any early cases that you remember in particular?
A The one murder trial I had would have been in the early 70s – yes, about ‘72. That involved a brawl at Hastings. What had happened was, a group of bricklayers were working on a job at Frankston and they all lived in or near Hastings. One day after their work had finished, they got in a van and set off. Along the way, a group of hoons in one of those old Ford Customlines for some reason decided to play silly buggers. They’d get in front of the van and slow down and this continued for a while until the van didn’t manage to stop. There was a minor collision and the hoons jumped out of their car. There happened to be some surveyors’ stakes by the road. They grabbed these stakes and belted the windows of the van, breaking the glass. The van then took off with the hoons in hot pursuit over quite some distance until they got to the end of the road at Hastings. So, the van screeched to a halt – the hoons likewise. They got out with their surveyor stakes and the bricklayers got the only thing that was available – their bricklayer’s level, a metal sharp-edged thing. There was a brief to-do and one of the hoons was hit and killed. It was a classic self-defence case – a literal pursuit and retreat – and a number of defendants.
My client had the unlikely name of Chicken. He was on bail and we went down to have a view of the scene. We made it a family occasion and Sally brought Edward who was about two then. We got down there and I was making a note about the width of the road, the position of the telegraph poles, etc, and Sally suddenly said, “Where’s Edward?” “Oh, it’s alright – Mr Chicken’s got him.”. The prospect of her toddler being looked after by an alleged murderer did not put her at ease.
Q Your wife blanched?
A Fortunately, Edward escaped quite unscathed. Anyway, the trial. One of the accused hadn’t been in the van – he’d been a fellow worker who by coincidence arrived at the same spot while the brawl was going on. One of the bricklayers had been hit and dropped his level. This guy picked it up and it was never quite clear, but he may well have delivered the fatal blow. He was defended by Bob Vernon, a famous criminal barrister, and he had the difficult task of wrapping his client up into the general sympathy which the others had, who’d been in the van. The prosecution among other things were arguing that self-defence wasn’t reasonable because the spirit levels were unreasonable compared to what the hoons had. Bob Vernon said to the jury, “Just imagine if the doors of the court opened and a madman came in and hits counsel and then is about to hit his Honour….his Honour brings out a gun and shoots him!”
Q Bob Vernon has been described to me as a masterful advocate. He was knowing for wearing a long leather coat and from the sound of it didn’t need to rely on many notes either. Advocates used to not rely on too much documentation. Did you acquire anything of Bob Vernon’s approach in your own approach to advocacy?
A No. Because as you say, he was quite a unique character.
Q With Jim Gobbo, did you learn particular approaches to advocacy from him? His area was more town planning, of course.
A Yes, he had a sub-specialty in defending Mr Whippy Vans. A Mr Whippy Van operator was charged with creating a nuisance, by making noise. Jim’s successful argument was, “He was playing ‘Greensleeves’ – that’s music, not just noise!”
Q So he never gave you advice about your own approach in those early years?
A I’m not sure – I can’t pinpoint any particular anecdote.
Q You did a lot of “crash and bash” work, as they called it, in those early years. This is to do with motor vehicles essentially.
A I can remember settling a crash and bash case against Alan Archibald. Everybody started off at that level. Another common source of work was appearances before Supreme Court Masters and there’d be arguments about interrogatories and whether they were vexatious, etc.
Q You did do some criminal briefs but decided ultimately not to become a criminal barrister.
A I just eased out of it. It wasn’t a case of my deciding one day “no more”. I just tried to get into other areas. Eventually, I said I won’t do any more magistrates’ court matters - I’d concentrate on the County Court. One good experience was prosecuting in the County Court where you’d get a brief, do a jury panel for three days., and if the trial started, you’d continue with that. There wasn’t so much pressure in that – as long as you didn’t stuff the case up and get the jury discharged - as long as there was a result, the Crown was quite happy.
Q You encountered in your first years in Melbourne Sir Zelman Cowen at the University of Melbourne. When you met him, you said he did rather tend to dominate conversations.
A Yes. If I could explain, I had this scholarship to spend two years in Melbourne after I’d been overseas – one year at the University, and one of getting practical experience. I had no formal arrangement with the University ,so for a couple of weeks, I just went and sat in the library. Then I thought I’d better go and introduce myself to Zelman Cowen who was then the dean. Being extremely thoughtful and generous, he arranged for me to have a little room and invited me to morning tea with the staff. But he did rather dominate the conversation. There was one particular conversation which was discussing Britain joining the European economic community as it then was, and Sir Zelman got what was obviously a carefully crafted bon mot. He said that Menzies was more interested in the empire than in apricots. Well, for some reason, that fell flat. He looked around at the audience and finally got to me and I gave him a sycophantic grin.
Q Did he rather favour you after that?
A Yes, I think he appreciated that.
Q Did anyone offer (you) any blandishments to go into teaching law – becoming a full-time academic?
A Not really, no. I quite enjoyed the academic side, but I never thought of it as a career.
Q Though you did, I know, subsequently have a big interest in legal education.
Q Now we have podcasts - true crime podcasts. There’s a great deal written all the time about law and often in a sensational way. Perhaps that’s always been the case, of course - newspapers did it in the past. Does that in your view fan or flame (public) expectations with regard to the way the law works and in particular the exercising of justice?
A Do you mean for judges?
Q Well, put it this way, does this put more pressure on you as a (now-retired) judge, with the greater attention paid to the way law is exercised, the way advocacy works, the way judges come at their judgments. Does this put more rather than less pressure on judges?
A It might.
Q To explain how they’ve arrived at their decision, to account to the public? In the past they weren’t expected to account in that way.
A Yes, perhaps on a related issue, there may be more sensitivity about, for want of a better expression, using politically incorrect terms. It was in the paper today, I think: some magistrate in NSW had had a breakdown – she’d been hauled up by the Judicial Commission. Amongst other things, she said she’d lock a defendant up over lunchtime to give him a taste of jail. Years ago, you wouldn’t think twice about complaining about that. Equally, I think there was some County Court judge here who’d been the subject of headlines, because he said of a rape case that the woman had “buyer’s remorse”. It could have been better put, to be frank, but in the past, it wouldn’t be the sort of thing that attracted headlines and public attention.
Q You’re a words person. Have you always had a strong ear for how things should be phrased, whether you’re speaking or writing?
A Yes, I suppose I’m a bit of a pedant. For instance, you don’t go into the country now, you go into rural and regional Australia – like Grey’s Elegy in a Rural and Regional Churchyard. You don’t go to the railway station, you go to the train station.
Q So you feel it’s important to at least keep an ear for what current phraseology and terms of speech might be.
A The verb “to say” has been replaced by the verb “to go”.
Q “She goes, she goes” – but you can blame Kylie Mole for that. But I’m sure you don’t use those colloquialisms when you write your judgments.
A Hopefully not.
Q Just continuing along - your practice consisted, broadly speaking, of commercial law, you did personal injury work -
A Yes, I did general commercial law, particularly defamation. Before I took silk, I had a general retainer from the Herald for defamation – I enjoyed that. As you know, the Federal Court now is developing a defamation jurisdiction, which was unfortunately not around when I was on the court.
Q Defamation is very big news at the moment. We have recently seen an upsurge in celebrity defamation cases. What do you believe has changed in Australia? We are seen as having some of the most punitive defamation laws in the world. Do you think there has been a substantial rise in “the hurt feelings aspect” of defamations?
A In a number of the cases, it’s linked with #MeToo and generational changes. The Geoffrey Rush case – well, you’ve seen the whole front page. What could he do? Just lay down and his career’s destroyed? It’s a self-created surge, one would think.
Q A defamation specialist I interviewed in NSW said that many of these newspaper-generated defamations were really the result of error. Has that been your experience? I don’t think the Daily Telegraph could be accused of “error” – it seemed to be deliberate.
A That’s a really nasty, smart-aleck headline. I’d agree with that comment, because a journalist might air something that sounds reasonable but it’s hearsay, and it gets into court. Which reminds me - an interesting case I had at the Bar involved the Panguna Mine in Bougainville, which was closed down. I was on the team for the insurers. In the unsporting way of insurers, we were relying on fine print which excluded liability for loss arising for insurrection, rebellion or civil war. Anyhow, the trial started before Justice Tadgell and I was trying to lead evidence about some report in a local newspaper that a police station had been attacked, etc - “Objection, objection – hearsay.” I got rather cross about this and I said, “Insurrections aren’t run according to the rule of evidence”. Justice Tadgell said “But this court is”. Which was a fair cop.
Q So what was the outcome?
A Oh, we settled, as often happens with the interesting cases.
Q It’s said that a barrister must expect to lose at least half of his or her cases.
A Well, that’s probably true, and the interesting thing is that by and large, reputation at the Bar is not expressed in terms of “he or she won that case” - it’s rather that they’re in the big cases, that they have a big tax practice or they’re often in the High Court – the actual win-loss (ratio) is less important, which is a reflection of what you say. Cases usually don’t get to judgment unless there’s some uncertainty about them.
Q So when did the bigger cases begin for you in your practice?
A I had some interesting cases when I was a junior; I got to know Tom Hughes QC. There was an inquiry by Justice Norris into newspaper ownership in Victoria. This was the first of Murdoch’s attempts to take over the Herald & Weekly Times, which failed and there was an inquiry before Justice Norris. I was on the team for Fairfax with Tom Hughes; a promising junior called Ken Hayne was for one of the other parties.
Neil McPhee QC led me once in the Full Court, trying to hold onto a ridiculously low award of damages for someone who’d lost his spleen in a motor accident and was then awarded $500, which even in those days was too little. Colin Macleod appeared at the trial for the defendant, before Judge Eric Hewitt and a jury. In those days, nothing was transcribed and we had the judge’s notes. The only note the judge had made was of Colin telling the jury to give the plaintiff “a little something”, which they duly did. The appeal was obviously going to succeed. About the only thing going for us – there was some obscure House of Lords decision which was of some assistance to us and Neil was on his feet. I kept urging him to refer to the House of Lords case. He wisely ignored my promptings until Justice Tadgell made some comment which provided the perfect opportunity which led beautifully to a reference to this case. It was quite uncanny - Neil seemed in some way to anticipate this. Of course, in the end it didn’t do us any good but it was the perfect opportunity to introduce this case.
Q Neil McPhee and Tom Hughes often appeared opposed to each other. That must have been like watching the battle of the giants.
A Yes. And Jeff Sher. He’s another.
Q He was on your floor at Latham Chambers?
A Yes. Jeff Sher had a big common law background, but he was getting into commercial work. I was at the other end of the floor and I had a copy of Patterson and Ednie on Company Law and Jeff got in the habit of coming around to borrow that. I had a junior brief with a solicitor, Clive Brookes of Moule, Hamilton and Derham, which led to a good relationship.
Q How long were you in Latham Chambers for?
A I was there up until when I was appointed. I was at least five years – about 1990 (when I was appointed to the bench). Clive Brookes who I mentioned – he was a wonderful person to work for. He wrote very literate briefs, but he was not a great one for answering phones. I wrote a poem for him.
A charming chap is K C Brookes
He loves to lurk in shady nooks
Away from cities’ flash and glitter
Where streamlets run and birdies twitter.
The reason for this solitude is not that he’s by nature rude,
Oh no, it’s just that he alone of all men is a phobophone.
He cannot bear to touch or smell
The gift of Alex Graham Bell.
When told of call he’s asked to answer
He charges off, like Bengal Lancer.
So friends and clients will be lax
To contact him except by fax.
Q What would have he made of mobile phones. Did he appreciate your poem?
Q I’m sure he did. When you became a senior junior, how many readers did you end up having?
A I had about nine, including four who went on the bench: Sally Brown, Susan Kenny, Kevin Bell and Tony Cavanagh.
Q You must be proud of them.
A Yes, and a couple of silks: Tim North and Michael Fleming.
Q You were on the Bar Council from 1969 – 1973. I’m interested to know something of what it was like to be on the Bar Council in those days.
A It was very formal. Now the Bar has a bureaucracy – I don’t mean that in a critical way. I think Sir James Tait was still there and his secretary Dorothy looked after the Bar Roll and that was about it. The chairman in those days was Xavier Connor, who was known as “X”. Another member was Bill Kaye, who was a rather stern character – he was chairman of the ethics committee. Typically, the Bar Council would meet at 5 for an hour and then have a few drinks and dinner, and then resume. By that stage, everyone’s tired and a bit crabby and sleepy. On one occasion, X started to nod off and Bill Kaye was introducing the report of the ethics committee. “A difficult problem here that counsel had to consider … a case where a barrister said ‘My client has committed adultery with X’”! Xavier awoke with a start.
One of the issues then – Sir Reginald Sholl had been quite a prominent judge on the Supreme Court. Then he retired and had a period as Consul-General in New York. When he came back, he announced that he was going to the Bar. That caused enormous angst and outrage at the Bar Council and also among the government. Henry Bolte was then the Premier. Reg Sholl went (as a consultant) to a firm of solicitors: Russell Kennedy & Cook. Henry Bolte was so annoyed at this that he instituted an amendment which provided that any State judge who engaged in legal practice after retirement would lose their pension. That’s still on the books but doesn’t apply to federal judges, obviously.
Q In the early years, barristers were very much tied to their phones, waiting for their clerks to ring. Now, who was your clerk in the early years?
A Jack Hyland was my clerk. A very likeable chap. When he thought someone had done a particularly good job, he would comment: “He’s worth his weight in used bottle tops.”
Q Is it true you had to wait with bated breath – you didn’t dare go on holidays – the phone might ring?
A That’s right - it was long before mobile phones of course. There was interest in getting what was called floating work, which was work allotted to the clerk. Jack Hyland didn’t have a vast amount of floating work – the king of that jurisdiction was Perce Dever – this list was famous for having a lot of floating work.
Q So when did you sign up with List G? Was it after you came back to the Bar?
A Yes, that’s right.
Q With your background, that was a natural fit, I imagine.
A That’s right. My son Ed’s on the list.
Q He followed you into the law. You had two other sons - twins.
A Charlie is the white sheep of the family. He studied economics. An obscure poet commented: “Economists are often men of great brains, like Friedman, Ricardo and John Maynard Keynes, but macro or micro, in practice or theory – there’s none can compare with my friend Charlie Heerey”.
But then Tom – he’s very fortunate – he got a job with a big legal firm in Dublin. They had Microsoft as a client and he switched over to work for Microsoft. This was shortly before the GFC, which affected legal firms very badly. Anyway, he’s been with Microsoft ever since as an inhouse lawyer. But of course, if he strikes any particularly difficult IT problem, he just has to ring me – I advise him to switch it off and switch it on again!
Q So they’ve all gone into quite different areas, which is good from your point of view. Actually, I noticed you’ve got an economics book sitting over there on your shelf.
A Yes, on the Court, I did quite a bit of competition law. I liked that area. A lot of economics is intellectualised common sense.
Q Did your understanding of economics come in handy when, as a Federal Court judge, you were presiding over the Visy—Amcor cartel case? That was certainly one of the biggest cases you presided over.
A Yes, although that was by then a plea.
Q I like this quote from Graeme Samuel who was at the time chairman of the Australian Competition and Consumer Commission – he described cartels as “theft, usually by well-dressed thieves”.
Q It’s a colourful but apt description, no doubt. You mentioned before economics being “intellectualised common sense”. You made a very down to earth assessment here where you said that “Visy’s four years of covert price-fixing in the cardboard box industry with the firm Amcor personally affected every Australian, because everybody buys something transported in a cardboard box”. That really brought into people’s minds the nature of the problem.
A Yes, it’s not an abstract thing; it affects daily life in a tangible way.
Q As a Federal Court judge, what has been the toughest intellectual concept you’ve ever had to wrestle with?
A This might not be quite the answer. Often, patent cases were highly technical – though sometimes oddly enough, they weren’t. One Full Court case I had involved football shorts for playing touch rugby with a Velcro strap. When the strap was removed, that was the equivalent of a tackle. That’s not cutting-edge technology. Sometimes, however, the science was quite difficult – I don’t have a scientific background.
Q I was interested in one that you presided over that had to do with passing off a Cadbury’s purple chocolate wrapper.
A Oh yes.
Q I think I remember this one because I’ve seen the offending item – you were discussing the shades of purple and whether they could be seen to be somehow passing off Cadbury’s.
A Well, that was very interesting and rather embarrassing. I heard the trial. Cadbury produced a 90 page affidavit from an “expert”, full of esoteric observations about people’s reactions to colours and discussing arcane concepts like “cognitive dissonance”, “decision-heuristic cues” and “operant condition”. I recalled a Queensland case in the 1950s involving objectionable publications. The statute prohibited publications which would “deprave or corrupt”. There’d been expert evidence as to the effect of the publication in question. The High Court rejected that and said the evidence of people’s behavior in general is not the subject of opinion evidence, whether expert or not (Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119). The wrappers in the Cadbury case seemed to be an ordinary consumer items which people buy every day, and judges are people who are equally able to discern whether they’d be confused by this or that.
I raised the Queensland case with counsel (prominent silks whom I had better not embarrass). They raised no problem as to its applicability.
I gave a decision along those lines and perhaps unwisely, by way of adding gratuitous insult to injury, I said in effect “It’s just as well this applies – otherwise big companies would have very expensive experts”.
Anyway, after the case, somebody got around to looking up the Evidence Act, to find that there was an express provision - section 84(b) - that provided that opinion evidence can be admitted, even if it’s a matter of common knowledge. There was an appeal, which had to succeed because I’d wrongly excluded this evidence. So, the Full Court said “Go back to the trial judge”. “You don’t mean Justice Heerey?” “Yes, we do!” So I had to hear the case again and go through all this expert evidence, and I did find against Cadbury.
Q One of your important legacies to the Victorian Bar – I know you donated your book collection, “the Heerey Collection” to the Bar library a while back, which was a generous bequest. But I’m actually thinking of Bar News – you were the inaugural editor.
A Yes, with the late Dick McGarvie.
Q Was it Richard McGarvie’s view about having more communications among people at the Bar – was that the reason for setting it up?
A Yes. A record – you know, things like welcomes and obituaries –
Q And keeping a history, too, I would have thought.
A Yes. Then I had a second stint, I think, for about five years before I was appointed, back in the mid 80s. Alex Chernov was the chairman and asked me to take it on then. That would have been from 85 – 90 – another five years.
Q You took silk in 1985 – that was the first time you applied?
Q How was your practice after that? Were you just as busy?
A Yes, so then I had five years of that before I was appointed.
Q In becoming a Federal Court judge, what made you decide ultimately to accept the appointment? You enjoyed being a judge, I know – it suited your temperament.
A I had a whisper that it might be coming on. In December 1990, Sally and I were on the great Victorian bike ride. We got to Leongatha. It was very hot and we decided not to camp but stayed at a pub. It was full of thirsty riders and we went up to the barman who was serving beers. I asked if he had a room for us – “yes” and he said, “There’s a phone call for you – your secretary rang”. This was before mobile phones – so I waited in the queue until I could call her. I finally got through and she said “A Mr Duffy from Canberra rang”. This was late on Friday afternoon, so I had to sweat it out over the weekend and then rang back on Monday. I got the offer and accepted on the spot.
Q You presided over a great many cases and were president of the Defence Force Discipline Appeal Tribunal. I believe that involved being on a panel of Federal Court, State and Territory Supreme Court judges which heard appeals from Courts Martial and Defence Force Magistrates. What year did you get your Order of Australia award?
A It was 2012.
Q For services to the law.
A I was very appreciative.
Q Moving towards the conclusion of this interview, I was interested to note in your farewell – you were described as a “kind judge”. They said it was a “rare attribute”. You said at the beginning (of this interview) that you were interested in people.
A One of the benefits of being a trial judge, as opposed to appellate, is that you’re really in command of your own environment. It can be a Star Chamber or a love-in, or somewhere in between. I don’t want to sound pious about this, but it’s really just easier for everybody, to paraphrase John Howard, if you’re not relaxed, well, at least you’re comfortable.
Q Richard McGarvie who I interviewed years ago spoke about how buildings mould behaviours. Would you agree with that, as far as courtrooms are concerned?
A Yes. Coincidentally, on television last night, Kevin McLeod of “Grand Designs” was making exactly the same point – that buildings affect behaviour. I remember, when still at the Bar, I was sitting as a judge on a moot court. It was held in the Supreme Court, in the evening. I was struck by how high up the judge was, looking down. The Federal Court – in the new building, the difference is not nearly as much. That physical elevation surely affects the way you think.
Q Would that have suited you to be up high?
Q You’ve published many things including your book “Can You See the Mountain?” It’s a lovely title – I was struck by that.
A The origin of it was from where we lived in Hobart. You can see the mountain on the horizon. If the mountain was obscured, my mother would remind me to take my coat to school. It’s a vague metaphor for preparation for life.
Q Do you feel you’ve scaled the peak?
Q Finally, you’ve profiled prominent Tasmanians (in your writings). I want to ask you about Andrew Inglis Clark – the more I read about him, the more intriguing he was as a founding father of our federation.
A Yes, Clark was a republican and a great admirer of America. He hosted a function every 4th July, and visited America twice and corresponded with (Justice) Oliver Wendell Holmes. My first interest arose in about 1995, in Hobart. I was asked to give a talk at the Tasmanian Club. I forget how that initiative came about, but somehow I latched onto Andrew Inglis Clark as an interesting topic. In the course of researching, I discovered a very important link with the Club itself. In the 1890s, they had a meeting of the colonial premiers in Hobart. They had a dinner at the Tasmanian Club, and it was at that meeting they decided there would be a draft of the constitution which would be submitted to a referendum. It was their decision to make the Australian constitution a people-based democratic thing, rather than a deal between governments. That has been rather forgotten. La Nauze, the main historian of the Federation, doesn’t mention it and it almost disappeared from history.
Q That was Andrew Inglis Clark’s great legacy – what do you feel is yours?
A The law has such potential for life, really - for meeting all aspects of life – the good, the bad, the inspiring, the depressing – in a way that perhaps vascular surgery wouldn’t. I’m very glad I chose it.
Q Well, Peter Heerey, it’s been a great pleasure.
A Thank you.