Colin McDonald QC – reflections on a life in the law

I’ve known Colin McDonald for a long time – firstly by reputation as the leader of the Darwin Bar and later as a friend in the law. When we first met I was a not-so-young paralegal, then articled clerk and later a solicitor. Colin was more than generous with his time and on any number of occasions led me gently through the labyrinths of the Migration Act, the Workplace Relations Act and others. It didn’t matter whether I was briefing him in a matter or not, he was always ready to make time for a friend in the law – no matter how junior.

I caught up with Colin at his home in Darwin recently before he flew off to his other home in the hills of Bali. We shared a few glasses of wine and a long chat – mainly about birds, poetry, love and art – matters unrelated to the law. At the end of the night he gave me this (as yet undelivered) speech prepared as he closed one chapter of his life and began another.

This is part one of a three-part series and covers Colin’s early years, his learning of the law and its practice and his early days in the Northern Territory.

Getting a Word in Edgeways

(A speech not given on the night of 5 June, 2010 at Crooze Indonesian Restaurant, Cullen Bay, Darwin to mark my retirement as a member of William Forster Chambers.)

This is the speech I will not be giving on the night of 5 June, 2010. However, it is the speech which I notionally give for that evening and in which I would seek to record my gratitude to colleagues, former colleagues and those persons with whom I have had the privilege of sharing my life in the law and at William Forster Chambers.

So these are the thoughts and reflections I would notionally share with you on the occasion. Those thoughts are actually better conveyed in writing lest they pass transitionally as indulgence and mere sentiment. There is a certain discipline in marshalling one’s thoughts in writing even if that discipline is only adjectival.

Mark Twain once wrote “I am sorry I did not have long enough to write a shorter letter.” In a similar vein, as the memories float back, I fear I have not set aside enough mornings to write a shorter speech and get my words not just in edgeways, but with brevity.

At once as I look back there is so much for which I am so grateful.

I had the benefit of a good family; parents who sacrificed all for the benefit of their children so that I and my brother might enjoy opportunities of which they could never dream. Only now do I begin to appreciate their sacrifice and piece together and make sense of those puzzles of childhood, adolescence and those illusory certainties of my 20’s.

Mine was the experience of so many of those born immediately after the Second World War. There were so many things we didn’t know – things never said, never communicated until it was too late. Only at my father’s funeral did I learn that he had fought bravely with men in front-line conditions and gruesome guerrilla-type warfare. Only later do we piece things together.

I was named after the uncle who didn’t return from the war and who was killed, age 21 years in a botched military operation at the massacre at Toll Plantation near Rabaul in Papua New Guinea. Yes, the freedoms I have enjoyed all my life I can be grateful for as a result of the sacrifice of others.

I can be grateful for a good education and teachers who were capable of inspiring and guiding. At Melbourne University, I had the benefit of excellent Professors, Lecturers and Tutors who aroused in me sufficient interest in the law and who distracted me from being an archaeologist.

I can be grateful to those who I learnt from in my early life in the law. I really had a “blue chip” education in those early years. Thanks to the then Dean of Melbourne University Law School, Professor Sandy Clark, I was a recipient of a Dean’s Certificate that guaranteed excellent Articles of Clerkship in a leading Melbourne firm, Russell Kennedy and Cook.

I was articled to a Common Law Partner, Graham James Parkes who loomed literally larger than life and who enjoyed the nickname “Spanner“. I learnt a lot from Spanner about the rough and tumble of litigation and he gave generously of his time and litigation philosophy that had no academic pretension. So far as I recall, he never called me by my name but by the names “Tiger” and “Sonno“. In the course of case preparation, he was wont to mutter his litigation philosophy with one line expressions like “Sonno, the only way to talk to anyone in this city is on the right end of a writ.” Nevertheless, I am grateful to “Spanner” Parkes not just for giving me robust Articles of Clerkship, but for teaching me to focus, really focus on the case at hand and to keep an eye on the detail.

The Consultant to Russell Kennedy and Cook and former distinguished Supreme Court Judge and Consul General to New York, Sir Reginald Scholl described my principal to me one day as “quite the most instinctual Common Lawyer I have ever seen.” Only now do I wonder what word Sir Reg was seeking to emphasise.

I am grateful to Sir Reginald with whom I worked often. He taught me how to arrange a litigation case and argument, and how Sir Owen Dixon had taught him how to physically have the case ready for presentation in Court. I never forgot those lessons and the physical manner of containing and having ready the case at the Bar table whilst on one’s feet.

Sir Reginald was the first to encourage me to go to the Bar; his practical presentation of skills was my first experience of how skills are passed on at the Bar – by practical example. Unlike my principal’s office, which contained only his beloved Supreme Court and County Court Rules, Sir Reginald had books, interesting books in his large office and he would select a book regularly and hand it to me to read. Thanks to him I still read widely around the law, its values and potential horizons.

I can be grateful to Justice Richard McGarvie, Justice of the Supreme Court of Victoria to whom I was fortunate indeed to be his Associate in 1978 and 1979.

I was the only legally trained Associate in those years and Associates were normally retired Wing Commanders, Commodores, Colonels and retired businessmen – and they were all men.

But Justice McGarvie wanted a legally trained Associate to help research the cases that were reserved for judgment. Life with Justice McGarvie was ever so much more than being a researcher. Justice McGarvie had been one of the leaders of the Victorian Bar, former Victorian Bar Chairman and activist in the Labor Party. It was only by stroke of chance and Labor Party factional politics that he did not become a member of the House of Representatives.

I can be grateful to my old Judge for the power of his example, his genuine interest and fascination for good advocacy.

Often during hearings he would pass down to me in Court little notes containing messages such as “This is good cross examination” or “That was an excellent final address“, and “Now the jury is listening“.

Justice McGarvie had a regular stream of visitors who had been colleagues and friends in other lives, especially the Labor Party, Law Asia, Amnesty International and Members of the Senior Bar. No matter how busy he was he always made time to meet and speak with those who sought his counsel.

Justice McGarvie was determined that I would go to the Bar. He discussed advocacy and the dynamics of what was, and what was not successful in the art of persuasion.

The experience of being an Associate is invaluable and a unique opportunity to see and experience the Bar at work with none of the anxiety. Over the two year period as Associate, I was enthused by what I saw and heard. Justice McGarvie deftly steered me to becoming a member of the Victorian Bar. In the latter part of my time as Associate, I knew I wanted to go to the Bar. The time to go to the Bar is when you feel you want to go.

I am grateful that I chose the leading criminal barrister, Frank Vincent, to read with and to be my Master. Frank was not just a good Master; he was the best of Masters. He literally lived his cases and the life of a barrister and revelled in the company of other barristers. He shared his cases, his thoughts and his time with an inner sanctum of friends and colleagues at the Bar.

In my first week as Reader, in March 1980 Frank Vincent had me undertake an exercise that, to my benefit, I have never forgotten. He asked me to get the 1961 Volume of the Victorian Reports. I duly obtained it for him from the shelves of his library. He then asked me to check at the front of the Volume and remind him of the names of the appointed Judges who were still on the bench of the Supreme Court. I looked down the list with a slow realisation. I finished the exercise and reported there were none still serving on the Bench. With those raised eyebrows of his, Frank looked at me and said “Well there you go. They are all retired or dead, so don’t go getting tickets on yourself.” An early reminder in my career of the importance of humility and that the journey is short.

I was Frank Vincent’s last reader and when I joined him he was a Leader of the Criminal Bar doing murder trials back to back and the odd worker’s compensation case. He was counsel of choice for a coterie of real life persons whose names and alleged activities later filled the film scripts of the Underbelly television series.

Frank was the finest addresser to juries I ever witnessed. He spoke without notes, with conviction and power. In his addresses he seized on emotional truths and had almost a symbiotic relationship with the jury. I was fortunate to witness many of his addresses both as an Associate and as his reader. I am grateful to Frank for so many practical skills he demonstrated at a level of professional competence I was never able to achieve. I thank him for his spirit of independence and his courage to put the bold or difficult argument. He was deft, polite and fearless before Judges.

I thank him for his values and his quiet passion for justice and his respect for the healthy traditions of the Bar. I thank him for his counsel over all my years at the Bar. He was a Rock of Gibraltar, especially when the going got tough. He was one who understood the anxieties and loneliness inherent in the life of a criminal defence lawyer; he understood especially those lonely decisions that had to be made in murder trials.

Looking back, perhaps the most important matter I can thank my old Master for was his sympathy and empathy for the relegated and the humility of spirit that can come from such sympathy and empathy. Looking back it seems so clear now.

It was my good fortune at the outset of my career to be in the first readers course conducted by the Victorian Bar. For three months all new readers were given an induction course by senior members of the Bar who gave generously of their time and who imparted skills and gave advice as to what it took to be a barrister. I am grateful to the Victorian Bar Council for having vision and the wisdom to develop this course so long ago. The course was invaluable and, for me, an enduring reminder that to be a barrister is to be a professional and not a business person. Values, ethics and collegiality were at the core of the course just as they are in anything worthwhile in life.

I can be grateful to my first colleagues in Chambers when my nine months reading concluded. I shared a small suite with Tony Cavanough, Gerard McGuire, Maureen Smith and Frank Brennan SJ at the back of Equity Chambers, a suite which had a commanding view of the old Federal Court’s external plumbing.

Our suite was labelled Vatican Chambers the night after our opening celebration. The sign hung up anonymously outside was taken down, but the name stuck. Perhaps it was because we had a resident Jesuit in the suite or perhaps it was those who attended, the opening: Sir Gerard Brennan, Sir Murray McInerney, Sir Kevin Anderson, Frank Costigan QC, Peter Heerey, John Hassett, Frank Vincent, Justice Keely and Judge Jimmy Gorman, all who so kindly lent their company and, by their presence, wished us well in our future life at the Bar. BKC Thomson QC gave a speech and refreshments from the Celtic Club did the rest.

Life at the independent Bar had really begun.

Sir Gerard Brennan was there at the beginning of my 30 years at the Bar. By a wonderful coincidence and, as if to give those 30 years some symmetry, he was in Darwin and deliberately came to my room in William Forster Chambers to share a glass of red with me on my last day, literally as my world of 30 years was being packed into boxes. As I sat there with Sir Gerard, Peter Barr QC, Raelene Webb QC, Mark Johnson and Simon Lee the conversation flowed easily, but I had never experienced such a sense of emotion.

Life at the Bar was over.

But I get ahead of myself and I am back again to the beginning of my career. I enjoyed my time at Vatican Chambers, but I was restless and had already been exposed to Aboriginal society in the Northern Territory thanks to the Saint Vincent De Paul Society. A position at the North Australian Aboriginal Legal Aid Service (NAALAS) became available. With the encouragement of Frank Vincent and Dyson Hore Lacey, and the blessing of Justice McGarvie, I travelled North on a fateful journey and one equipped with the five volumes of Manning Clarks ‘History of Australia‘, a parting gift duly inscribed by the members of Vatican Chambers. I look up to my library shelves now and there they are, the five volumes still bearing the words of farewell. Time flies.

I was privileged to work at NAALAS for just under three years. In that time I was able to make a humble contribution to justice for Aboriginal persons. I had the good fortune to share tasks with other like minded and idealistic practitioners including Jenny Blokland, Greg Borchers and Reg Keating (there seemed to be a lot of Reg’s in those days), with Tony Fitzgerald as a regular visitor.

I can be grateful during those years at NAALAS (and beyond) for the quiet encouragement of certain Judges of the Supreme Court and Magistrates who clearly had an appreciation of the difficulties facing Aboriginal society and who sought to make the administration of justice more meaningful and relevant and to recognise that society as best as they could. So I thank Chief Justice Forster, Justices Muirhead, Toohey, Gallop, Kearney, Nader, Thomas and B.F. Martin (B1, that is) not just for the dignity they accorded so many clients, but for the odd expression of encouragement they gave to me and others.

Justice Toohey was, for me, a particularly stimulating Judge to appear before. Alert, comprehending and ever aware of context, he was a Judge to be reckoned with. I can thank him for so much and for an early lesson in an injunction application made in his Chambers in the old Supreme Court building. I remember Daynor Trigg as a determined opponent. When a point of statutory interpretation arose, we made extensive reference to the Oxford Dictionary, Collins Dictionary, but I could see the resistance in Justice Toohey’s eyes, “What is the Australian meaning of the word?” he asked.

With that he turned in his chair to his left and reached for a text, the Macquarie Dictionary. I was momentarily riveted as there the text was immediately adjacent to the five volumes of Manning Clark’s ‘History of Australia‘. He then read out the Australian meaning of the word which he proceeded to apply. I went out and purchased a Macquarie Dictionary the next day and have made reference to it ever since.

So, I digress again as the mist rises in the valley below and the cicadas momentarily distract me.

When I left NAALAS I took a two week break. I looked for a legal conference to attend in the region. By chance there was a taxation conference in Bali on offer, so I went. I attended the opening event where I met Frank Costigan QC who had just finished his term conducting the Royal Commission into the Painters and Dockers.

Thereafter, I do not think we attended one seminar or keynote address, but we hired a driver and an old Holden car and made journeys across Bali and during which I enjoyed Frank’s gentle, mellow conversation and reflections. We would stop at little warungs, enjoy simple food and test out that excellent Indonesian beer, Bir Bintang. My love affair with Bali and Indonesia had begun. I was later to be Frank’s junior and occasional opponent. He was a genuine leader of the Bar and exuded qualities that were deep in him – sincerity, integrity, gentleness and humour.

When Frank died last year, I had the honour of assisting Frank Brennan SJ compose some of his eulogy given at Saint Patricks Cathedral in Melbourne. Yes, there is emotion in farewells.

In the next part Colin reflects on his early days in the law in the Northern Territory and beyond…