E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 6 Number 4 (December, 1999) Copyright E Law and/or authors File: rossetto64.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v6n4/rossetto64.txt http://www.murdoch.edu.au/elaw/issues/v6n4/rossetto64.html ________________________________________________________________________ Interview with Chief Justice David Malcolm Lee Rossetto Brief Biography The Hon Chief Justice David Kingsley Malcolm AC was born May 6, 1938 in Bunbury, Western Australia. Educated at Guildford Grammar School, the University of Western Australia and Oxford (awarded the Rhodes Scholarship for 1960), he has been the Chief Justice of the Supreme Court of Western Australia since 1988 and the Lieutenant Governor of the State since 1990. The Chief Justice has been heavily involved in a number of legal professional boards and societies and is the Patron of a significant number of important legal, medical and other charitable organisations. The Chief Justice is a keen sportsman, having been Captain of the WA State Rugby Football Team (1963-1965). He is also a member of the Manila Polo Club and the WA Horse Trials Association. Contents * At what age did you decide you wanted to study law? * Did you, at that point have judicial / political aspirations? * Did you look up to any one in particular as a role model for your career? * What aspect of the law, both studying and practicing did you enjoy the most? * What are your long term career aspirations? * What things would you like to achieve in your current position? * What has been your main motivation and source of determination? * What career advice would you give to law students or young lawyers today? * What are some of your most memorable (embarrassing) moments in Court? * How did you feel for the first time you stood up in Court? * What is the proudest moment of your career so far? * Have you ever been unsure about what lies ahead? * What is the most fulfilling aspect of your job? * What is your favourite "lawyer joke"? * What characteristics have got you where you are today? * What are your views on the progressiveness of the legal profession? * If you could reform one aspect of the legal system what would it be? * If you could invite five people for dinner who would they be and why? At what age did you decide you wanted to study law? 1. Well I suppose it was when I was aged 16 and it was shortly before the matriculation examinations to enter into the University of Western Australia in 1954. I was a science scholar at Guildford Grammar School and I had aspirations of being a nuclear physicist and I came to the conclusion that it wasn't for me. During that time I participated in a debate at school which was judged by a partner of a law firm named John Wickham. He later became a Judge of the Supreme Court. He asked me afterwards whether I had thought of studying law. I think that was the first time the thought had occurred to me. I went back to school for another year and it was really during the course of that year I decided that is what I would do. I obtained temporary employment as a summer clerk in the old firm of Joseph Muir and Williams. The partners at that time included Alec Williams, Red Burt, John Wickham and Bill Elphick. That confirmed to me that I was setting a course from which I would not deviate. Did you, at that point have judicial / political aspirations? 2. Certainly not, I had no judicial aspirations at all. I did have some political aspirations. I was quite heavily involved in politics at the University of Western Australia. I was Vice President of the Liberal Club at the university, Fred Chaney was one of the committee members and his future wife was the (fresher) member. The committee was dominated by law students including a fellow named Greg Harvey who later joined the Foreign Service and became a very senior executive in BP. Did you look up to any one in particular as a role model for your career? 3. Yes, I spent that time when I was a summer clerk with Red Burt who became very important role model. He was a person who strove as far as one could for perfection in everything he did as a lawyer. Nothing was too big or too small, no case was not something that was worthwhile. I think he gave a very great example of service to the community and upholding the standards of the profession. 4. I was actually articled to Robert Blackensee in the firm then Stone James & Co, now Mallesons Stephens Jaques. He was a conveyancer and he taught me a great deal in relation to the care that needed to be undertaken in the preparation of documents. I actually spent the great part of my articles divided in two periods. One period before I went to Oxford and another period after I came back. Eight months before I went and sixteen months when I came back. But for a very substantial period of my articles I worked very closely with Robert Ainslie QC. He was another very meticulous person with a very high sense of duty. He was a little bit prickly from time to time but a great task master. He was a person who paid enormous attention to the way in which letters were written and pleadings were drawn and so on. He was meticulous in his work which I think was very important. From both of those men I learnt a great deal. 5. After my articles, the day I was admitted to practice in July 1964, I was also admitted to partnership at the firm of Muir and Williams as it had become. After that I actually appeared with Burt as his junior on quite a number of occasions. I learnt a great deal from him. I can remember in one case, Sunnywest Cooperative Dairies v W.A. Johnson & Sons, about an estoppel in relation to partnership which had converted itself into a company. They never told anybody about the formation of the company. The question was whether the partners were still liable on the basis of an estoppel? In that case Burt asked me to do the reply at the end of the argument. I was very chuffed about that. What aspect of the law, both studying and practicing did you enjoy the most? 6. That is a hard question. I don't want to harp on Burt but he lectured us in contract and contract has always been one of my special interest subjects, as has equity. We were lectured in equity at university by Professor David Allen who went on to Monash University, Melbourne and is now at Bond University. He instilled in me a great love of equity and I used to go to tutorials with Professor Hanbury in Oxford who was an author of a textbook on equity. Also as a student I found criminal law and evidence fascinating. Although I didn't do a great deal of criminal work in my years in practice I did manage to defend one wilful murder case and appeared in the criminal court on a number of occasions, especially in my earlier years. But since I have become a judge that interest in criminal law and evidence has been renewed and I enjoy it. What are your long term career aspirations? 7. Certainly I had no ambition of being Chief Justice of Western Australia or indeed any ambition to be a judge. My career aspirations I suppose were to achieve a level of performance where I would be recognised as one of the leaders of the bar, to do the very best I could. I have always taken a great interest in law reform and it is a quarter of a century or more ago that I was appointed to the Law Reform Commission of WA. To improve the system to make it better than it was when I found it has been one of my long term aspirations. At present I would simply like to do the job I am now doing to the best of my ability. What things would you like to achieve in your current position? 8. My predecessor, Sir Francis Burt, suggested to me that communicating with the community would be my greatest challenge. He was right. To do that we of course need the cooperation of the media and that is a very important area. We have achieved that for most of the period that I have been Chief Justice. 9. There have been times when it has been difficult particularly with one particular section of the media. On the whole I believe that the Supreme Court is better understood now than it was, although there is still a great deal of work to be done. 10. I have a duty through making public statements, presenting papers and making speeches to try and explain what the courts are doing and why and to explain the changes which I think are desirable and why. I think that I wish to continue the process of reform. The two twin evils of the legal system have been time, in terms of delay and cost. Courts are in the position where they can reduce time, cutting back the time required of actually dealing with cases to the extent that time is money then reduce costs. So far as the general levels of fees in the legal profession are concerned, the Court does not any longer have control over that aspect. 11. In terms of the forms of procedure in order to make the work of the courts more efficient and give people the opportunity of settling their case at the earliest possible stage and generally improving the efficiency with which courts operate are ways in which we can put ourselves in a position to serve the community. Alternative dispute resolution has been part of the process. I believe that the introduction of court annexed mediation which we piloted in 1990 has served a very useful purpose. I'd say now that our Registrars who are fully qualified mediators are achieving a success rate of 70% in the settlement of cases. Even where cases are not settled in mediation in many instances the number of issues of dispute between the parties has been reduced. So if the case does go to trial it will not be as long a trial or about so many things as it would otherwise have been. What has been your main motivation and source of determination? 12. I suppose I have endeavoured to develop my personal skills to the very best of my ability in order that I be better qualified to serve the community. I would like to make a difference. What career advice would you give to law students or young lawyers today? 13. I can understand that we have to make career choices. I once toyed with the idea of leaving the law and going into politics or into some sort of foreign service. In fact I spent four years working in Asia as the Deputy General Counsel of the Asian Development Bank as a very young lawyer. 14. It is important to recognise that today a law degree does not carry with it any obligation to pursue a career in the law, unless that is something that the student really wants to do. One should not feel obliged because I have got a law degree I have got to be a lawyer. A law degree is in fact a very useful qualification for many occupations through business, administration, or for example in the foreign service. I have known lawyers who have joined the foreign service and had successful careers. So the sense that you are letting yourself down or letting your parents down or you're letting the side down whatever the side is by not pursuing a legal career once you have a law degree that is I think a mistake. I think that is one reason why a recent survey of the legal profession showed that after 4 - 7 years in the profession there is a significant number of people that actually leave the legal profession. I suspect that a number of them felt obliged to go ahead and attempt a legal career because they had a law degree. What are some of your most memorable (embarrassing) moments in Court? 15. My first experience was while I was still an article clerk. It was virtually on the eve of my admission. It was necessary to advertise twice in a daily newspaper before making an application for admission. In those days it was cheaper to advertise in the Daily News then it was to advertise in the West Australian. On the last day the Daily News forgot to put my advertisement in the Public Notices column which meant if nothing could be done my admission would be deferred for a month. 16. Lots of things were already in place. In those days, practically the whole of the legal profession would turn up to an admission party. I was the sole applicant and fortunately still being with Stone James, they were the solicitors for West Australian Newspapers. Robert Ainslie got onto the telephone and got a late public notice in. I was directed to attend the delivery door WA Newspapers in the laneway alongside Newspaper House at 11.00pm. I purchased a copy of the newspaper so I was able to swear an affidavit that it had appeared in the newspaper at 11.00pm on the last day. But the then Chief Justice, Sir Albert Woolf, wasn't too happy about it. He summonsed me to appear before him at a directions hearing to resolve the issue. Ainslie QC had to appear and argue the point. Finally he agreed to let my application go forward. But it was all pretty excruciating as it was not like I was in a group, one of twenty or thirty people applying, I was the only person applying. There was a special sitting of the Full Court to hear it. All is well that ends well. It worked out but it was pretty hair-raising. 17. Another occasion which comes to mind is the first occasion when I actually appeared against Sir Francis Burt. I was Junior to Ken Hatfield QC in a case called Gurfinkel v Panizza which went up to the High Court in about 1966. Gurfinkel was a notorious litigant. I was greatly embarrassed because he turned up to the High Court in a hired dinner jacket with black tie. When I made my first submission, he applauded. Sir Garfield Barwick commented, "Mr Malcolm, if you cannot control your client, we will have to deprive ourselves of the pleasure of his company". So it wasn't a great start. 18. Later when I was in front of Chief Justice Woolf in another matter, my opponent was John Toohey QC. In making a point, I made a gesture with my left hand (I was standing at the right hand side of the bar table) and I sent a glass of water flying down the table into Toohey's lap. How did you feel for the first time you stood up in Court? 19. I can recall that I was very nervous and it was like going in to bat against Dennis Lillee when he was in his prime. I think that it is very important never to lose that feeling of apprehension, the anxiety to get it right. I think that once you stand up and you're not nervous and you're not keyed up and you are not ready to give it your best, that is the time to stop. Unless you really are on the knife-edge I don't believe that you really can give it your best. No matter how many times I have had to make a speech, give an extempore judgement or stand up in front of an audience, I know the day that I am not keyed up for it is the day I should probably start to think about giving it away, because perhaps you are not going to give it your best. What is the proudest moment of your career so far? 20. I think that in 1983 I took two cases in particular to the High Court. 21. One was a case called All States Leasing v O'Dea concerning penalties in relation to the lease of a truck. The lessee was required to pay a lump sum up front which was waived so long as he paid installments of rent. There was a range of provisions for which the lease could be brought to an end including the failure to wash the truck on a weekly basis, in which case the truck could be repossessed and sold and the adjustments that would be made did not take into account accelerated payment of the balance of the lease installments which was required in a lump sum. 22. I formed the view that this was a penalty clause. There was a decision of the High Court that stood in his way dating from 1904 which either had to be overturned or distinguished. I thought that if it did go to the High Court it would be overturned and in any event, there was a good argument for distinguishing it. He lost at first instance as was expected. I was confident that the Full Court would distinguish the case, but they did not. He got pretty nervous but was prepared to take my advice that we had a reasonable chance of bringing it off in the High Court. We won in the High Court 3:2. That was a very proud moment. 23. In the same sitting of the High Court, I brought another matter involving the construction of a portable home for a young couple who lived in Beverley. The company went into receivership part way through the completion of this couple's home. The issue was whether the contract to build the home was one for the sale of goods or whether it was one for work and materials. In either case I formed the view that they were entitled to an equitable lien over the partly constructed house commensurate with the money they had already spent on it and if they paid the balance, they were entitled to take the house as it was. The receiver formed the view that they had taken an unlawful preference and they were sued for an amount representing the alleged preference. 24. At first instance, Justice Wickham upheld the equitable lien. In the Full Court presided over by Sir Francis Burt, the idea of the equitable lien was rejected. I submitted a case, Swainston v Clay, as an example of a lien arising as an operation of equity as distinct from an express lien. On one of the more difficult days I had with Sir Francis Burt, who I think sometimes enjoyed putting difficulties in my way when I was in front of him, we had a ding-dong argument over the applicability of this case. I lost the argument and we went down saying "If authority is needed it is in the old case of Swainston v Clay. 25. We appealed to the High Court and we won, again 3:2, Sir Harry Gibbs expressed the opinion that this was a case where a lien arose by operation of equity. He agreed with my authority. Just after the judgment was announced, I received a note from Justice Wickham, the trial Judge, stating, "Congratulations, we won". Have you ever been unsure about what lies ahead? 26. I don't think that I have ever had a career plan. I simply wanted to be a good lawyer. The opportunity to go and work in Asia came right out of the blue. I was admitted to partnership in Muir Williams in 1964 and it was just a couple of years later that I suddenly had a call out of the blue from a person who was a partner in a US law firm that had been Deputy General Counsel of USAID (United States Agency for International Development). 27. He'd just been appointed General Counsel for the Asian Development Bank and was in the process of being established with his headquarters in Manila. He was recruiting employees. My name had cropped on a few lists my boss (as he became) had obtained. He contacted me and asked me if I was interested and I was because I had recently spent some time in Asia. I was convinced that Australia's destiny was inextricably linked with Asia in the future. I was keen to play some part in that if I could. At all events I was offered this job, which at the age of 27/28 was a very exciting thing to happen, and my partners very graciously agreed to give me leave of absence. I thought that I would do this job for a couple of years and ended up doing it for just on 4 years. After that I came back to WA as that is where I wanted to be although I think I could have gone with a career in that international arena in one area or another. I had undertaken to my partners that I would come back and be with them for at least as long as I was away from them. Besides this was home and I think it is a wonderful place to live. What is the most fulfilling aspect of your job? 28. I think there is a very simple answer and that is that I am privileged to work with a remarkable team of people who comprise the Judges, Masters and Registrars of the Supreme Court. It is an enormous privilege to work with such a wonderful group. What is your favourite "lawyer joke"? 29. I think that comparisons have sometimes been described as odious and it is very difficult to make comparisons. Sometimes they have to be made in extraordinarily diplomatic language. I found a story when I was asked as a Junior Silk to propose a toast to the High Court. I was required to convey the change in atmosphere from the rigour of the Barwick High Court to the rather more academic, inquiring atmosphere of the Gibbs High Court, when Sir Harry Gibbs was Chief Justice. 30. I came across a story of a lawyer appearing before the court in Ireland presided over by the Chief Justice. It was a case about the interpretation of a will, usually something that was very dull. But the point of construction being argued on one side was that the word 'also' was a synonym for the word 'likewise'. The argument against it went something like this. The Chief Justice asked, "How can you say that in this will the word 'likewise' is not a synonym of the word 'also'?" Counsel being a quick-witted member of the Irish Bar promptly replied, "The former Chief Justice was of course a great Chief Justice. Your Lordship also presides in this Court, but not likewise". What characteristics have got you where you are today? 31. I think that is for others to judge. I think that I am reasonably intelligent, able to communicate and on occasion to persuade people to a point of view but I think that is a question really to be put to others. What are your views on the progressiveness of the legal profession? 32. One of the features of our legal system is its stability. As a consequence the approach of the law is of necessity somewhat conservative, but we live in a great era of change. The management of change has now become one of the most important tasks facing anyone who is in a position to influence the course of events. Some of the changes that have been made have occurred very rapidly. In the period from the turn of the century to the end of the immediate post war period there does not appear to have been any major change in the way things were done. I think in some senses yes because our society has become so much more complex. Access to the courts has become more difficult, but if you look at the history of WA, or if you look at the history of any comparable jurisdiction, the remark that was made for the first time more than a hundred years ago that the doors of the law courts are open to all but so are the doors of the Ritz Hotel indicates that except in the case of the criminal law, litigation at the level of the Supreme Court, is not something in which ordinary members of the public would reasonably expect to become involved. They must be catered for, they certainly must be catered for. But we don't look back to some golden era where everybody had access to the Supreme Court or indeed to any other court. 33. The law must provide a framework for the resolution of disputes between people by a civilised means. So we now have a very considerable array of courts and tribunals from the Small Claims Tribunal to the Supreme Court. So we have this range of facilities that endeavour to provide a paid service to the public. It is difficult then when one has gone through periods when record numbers of cases have been commenced in the courts to say that the courts are inaccessible. They have been too slow and they have been too defensive. As I have mentioned earlier, the courts can do a lot to speed up and supervise the process but they have no control over the costs of litigation in the terms of the level of professional fees charged. But they can do a number of other things. During the last 11 years since I have been on the Court there have been very many substantial reforms. The most momentous cultural change has been the case management revolution. That cannot be underestimated. Just over 11 years ago when I was still in practice the pace at which litigation proceeded was dictated by the lawyers and dictated by them to suit their own convenience. Whenever anyone complained about it the lawyers would say, "Oh well. The courts are very slow, can't get dates and so on and so forth". 34. There were significant waiting periods to get a case. There was no idea then of having any kind of timetable. Even among lawyers there were unofficial courtesies which were being extended whereby you wouldn't put your opponent to any great inconvenience, unless you had specific instructions to proceed strictly in accordance with the Rules of the Court. The case management revolution has changed that because it involves the courts dictating the pace at which the litigation will proceed. I think that has required a major cultural change by the legal profession. At first there was some resistance to it, but the change was not imposed upon them by arbitrary decisions. The proponents of case management, myself included, had to persuade by reason members of the profession to go along with this idea. Coupled with it the idea of court annexed mediation. Not only was there a commitment by the courts to manage and speed up the time within which things would be done, but if the profession was going to have to hurry to get a case ready then we were going to have to hurry to get a case heard. The essential agreement was that we should put in place a court managed timetable for the ordinary case from issue of writ to entry for trial in 12 months. That was the professional task undertaken under the supervision of the courts. In return for that we guaranteed a date for trial within 6 months of the case being ready. Of course there is an ebb and flow in litigation. In the period between 1989 and 1992 there was an avalanche of litigation which caused a backlog and which really made case management an essential. We had to put the house in order before we could implement it. So in 1993 we experimented with a thing called the 'Mini Blitz' in May 1993 and then the 'August Blitz' in August 1993. During these periods, we disposed of twice as many cases as had previously been dealt with in any one of the preceding several years. That was a remarkable achievement and one that was only possible with the complete cooperation of the entire legal profession. We were making use of court rooms at the Federal Court, the District Court, the National Mutual Centre. There was an army of article clerks with mobile phones. As each case finished another one started immediately, no matter what time of the day it was. I do not believe the quality of the decision making was not affected. 35. The listing interval to date is around four to five months consistently. It is operating well on the civil side. On the criminal side, we set as a target that trials should be listed within six months of first appearance in the Supreme Court. We have maintained these standards. We have reduced the listing interval for an appeal in a civil matter from about 22 months to three to four months now. In terms of efficiency, a great deal has been achieved. This success has meant that the size of the Courts has not needed to be expanded much at all, if at all, in the past three years. 36. In addition to this, by the end of this year, I hope to have two major tasks complete. Shortly, we will be sending off subject to final approval by the judges, a final draft of the complete re-write of the Criminal Practice Rules to parliamentary counsel. Secondly, within the next month or so, we will be putting out the exposure draft of the complete re-write of the Rules of the Supreme Court. There will be a period for comment, amendments will be made, and then that will also be sent off to Parliamentary Counsel. I would like to think the year 2000 will see both civil and criminal procedural rules completely re-written. There are some major reforms being introduced. If you could reform one aspect of the legal system what would it be? 37. I consider that our legislation in relation to the most serious offences on the criminal calendar, namely wilful murder and murder, so far as sentencing is concerned has become unnecessarily complicated and totally misunderstood by the general public. 38. When the death penalty was abolished in 1984 it was necessary to substitute another regime. The general consensus in the community was that for wilful murder, the offender would receive life imprisonment for the term of their natural life and for murder, they would receive life imprisonment with the possibility of parole. 39. I think the distinction between wilful murder and murder is unnecessary but it has been part of the Griffiths Criminal code concept in WA and Queensland for 100 years. That distinction does not apply in common law jurisdictions. That complexity is enough for the system to handle. To then subdivide wilful murders into various categories with the worst category of wilful murders extending down to the least category of wilful murders is a wholly unnecessary complication. My personal view is that the public interest would be best served if the only sentence which could be imposed was a strict, maximum security, life imprisonment without any provision for parole. It should then be left to the Executive, if they consider that somebody should be released, to ask the Parole Board for a report and if the report is favourable, to consider via Executive clemency the release of that person on parole. It is an Executive decision. Fixing a date between 20 and 27 years hence when a person would become eligible for parole, puts a judge in an impossible position. 40. It is also impossible for a judge to have to rank the wilful murder or murder as if they were in a series of ascending in descending seriousness. It seems to me that all wilful murders should be regarded as if they were in the worst category on the criminal calendar for which the offender is sentenced to life imprisonment, period. If you could invite five people for dinner who would they be and why? 41. I would choose five of my closest personal friends of many years standing. But I am not prepared to name them. I have been blessed with some very, very good friends from school, from university, others of perhaps not quite such long standing with whom I am very close. I think feelings of privacy would foreclose me from revealing who they are.