And the courage to accept responsibility
A Polish doctor named Dering sued the author Leon Uris over a passage in the novel Exodus. An account of the trial is in the book Auschwitz in England (MacGibbon and Kee, 1965).
It was written by two members of the English Bar who were law reporters. We are told that the record in the book was not based on a verbatim written transcript, but presumably the notes of the reporters. (I don’t think the English had transcripts for murder trials then. I don’t know if they do now. The fly note to the book says that one reporter covered appeals and ‘other jury trials where rapid note-taking is useful.’ The other reporter did a line in philately.)
The passage in the book sued upon referred to a German doctor at Auschwitz using ‘women as guinea-pigs’ and said that Dering, the name being spelt wrongly, had ‘performed seventeen thousand experiments in surgery without anaesthetic.’
The writ issued in December 1962. The Statement of Claim covered a couple of pages. So did the Defence delivered in February 1963. But the details of the plea of truth – ‘particulars of justification’ in the jargon – cover about three pages in the book.
The printers gave an apology in open court in May 1963. It looks like there were many arguments about issues of procedure – what lawyers call pleadings and discovery – although the book does not refer to any rulings by the court prior to trial.
(Pleadings are court documents where each side sets out the material facts alleged. They were developed over centuries and meant to formulate issues to go the jury. They have become very bloated and too often don’t help the court reach a decision. Discovery is a process started in the Chancery, not common law, division of the courts. You have to produce every document that might bear on the case. With the internet, the result can be a blizzard, and a gravy train for the lawyers. It puts clients in a hard place and most of their lawyers in a harder place. You don’t get thanked for telling your client they must do something that will destroy their case.)
The publishers admitted the publication, and that it was defamatory, but said that with some exceptions, what was said of Dering in one short paragraph in a long novel was true. They gave details which had to be supplemented when further evidence, including a vital hospital register, was uncovered. The ruling on that issue is reported.
The case came on for hearing before a London jury in April 1964. The trial ran for 18 sitting days. That was then a very long trial in England. No witness gave evidence in English except for four English expert witnesses. There were problems with the interpreters.
The summing up of the judge took five hours. The jury came back in less than three hours with a derisory verdict for the plaintiff of a ha’penny.
There was then an argument about costs because of the lowness of that amount, and a prior offer of settlement by a payment into court. That was of course determined on the spot in one of the two reported rulings of one or two pages. The trial was over. Judgment was entered a little over a day after the conclusion of the evidence and addresses to the jury.
Dering, the plaintiff, and his lawyers must have known that he was playing with fire, because the Home Office had held him in prison for nineteen months while they looked at whether he should face war crimes charges. In a civil action, he would have to give evidence, and his accusers would face a lower standard of proof.
The trial involved harrowing evidence from victims of what the judge described as ‘the greatest crime that has ever been committed’. There were serious issues of fact and morals.
Dering’s case was that as a prisoner he had no option but to do what he did – such as castrating men without anaesthetic. In opening the case, counsel for the plaintiff said that in Auschwitz, if you were ordered to carry out an operation, you did so, or you got ‘bumped off’. He said the defence was Alice in Wonderland – it was like saying ‘You may not have committed murder, but you were involved in a brawl.’
Apart from issues of fact, there were real issues about duress and superior orders. That led to the judge referring to Aristotle and St Augustine in his summing up.
The judge told the jury that the trial was not a war crimes trial – but in substance it was.
The witnesses wanted anonymity. The judge told the court ‘as one of Her Majesty’s judges’ that he would be appalled if the Press published identities of witnesses, and the Press box gave the defence solicitors a note saying that they would preserve witness anonymity. That was that.
Counsel discussed with the judge how the jury should be instructed. The authors say: ‘Lord Gardiner said that he was very anxious that nothing now submitted by him should tempt the Judge to give any direction which might be open to question on appeal, for the long-term interest of both parties was that this case should finish at this trial – a retrial would be a tragedy for both sides.’
The judge said that he had read all the cases on coercion and that the law was ‘astonishingly vague’. He said he would just tell the jury that duress was no answer to murder and that was that. The case was reported just on two procedural issues. It decided no issue of new substantive law.
So, here were the leaders of the profession acting professionally and sensibly to avoid having their clients fall down a man-hole if they could decently achieve that result. In other words, here we see professional people acting professionally.
I am finding it hard to recall seeing that here recently. Doubtless it goes on still – but not, I think, as often as it should. We do after all owe obligations to the court – and to the public and to common sense and decency.
Mr Duncan QC opened the case to the jury for about four hours. Dering’s evidence in chief took five hours. Lord Gardiner QC’s cross-examination lasted seven hours.
The evidence of Dering did not start well. The judge asked him if ‘you are satisfied that you have taken the oath in a manner that is binding’. Dering replied that it did not matter as he was a Christian and a Catholic. To which the judge said ‘You had better be sworn properly. Take the Douai version.’
I have not gone into any detail about the issues of fact. They arose from evidence of the most horrifying crimes imaginable. And it is impossible to imagine a jury having to determine more complex and more vital and stomach-turning issues.
The judge reminded them that they were talking about what happened in Auschwitz in 1943, not London in 1964. Although some doctors had avoided doing that kind of surgery at Auschwitz, the ordinary person was not and did not aspire to be a saint.
Lord Gardiner had argued that Dering was wrong to do what he did and that fear was no excuse. The judge said the jury should decide how the average man could be expected to behave under those conditions, and that he could not give them guidance about morals. But he said Lord Gardiner was undoubtedly right in saying that people had to take a stand at some time and say ‘I will die rather than do this’. And I think one doctor said he would have committed suicide rather than carry out one form of order.
Leading and junior counsel for Dering became the authors of the new leading text on defamation, Duncan and Neill. (It was a very lucid text on a fraught subject.) Lord Gardiner would become Lord Chancellor. He was one of those ineffably urbane English silks. (They were slower in handing out silk then. It took Duncan from 1928 to 1963, and Lord Gardiner from 1925 to 1948).
Lord Gardiner was said by the authors to have ‘no histrionic tricks’. Well, he certainly had a sense of theatre. He was cross-examining Dering about what had passed between him and another doctor, whom he (Dering) knew Gardiner would be calling, and a victim. Dering replied that that doctor had been out to get him. Lord Gardiner said that he was not just relying on that doctor, but that, while looking behind him to the body of the court, he was relying on the evidence of the victim – who was sitting behind him.
Lord Gardiner later called a French woman doctor. He asked whether she had refused to carry out certain operations because to do so would have put her in breach of her Hippocratic Oath. She said she had. The next question, without a pause and in the same voice, was: ‘Were you shot?’
Finally, when the jury retired at 11.15 am, the authors inform us that the judge, Mr Justice Lawton, began hearing the next case in his list. It was a jury action for libel in which a mail order company and its managing director sued a newspaper. His Lordship interrupted that hearing when the jury came back at 2.30 pm. He then heard and determined the issue of costs. No cases were cited in that argument. The ruling on this ‘difficult problem’ is reported at [1964] 2 WLR 1298. His Lordship then went on with the next libel action that went for a week and where the plaintiff got up to the tune of £15,000.
Lord Denning wrote a Foreword to the book (about two years before I, in awe, met his Lordship). He concluded: ‘Many are the Reports of State Trials or Famous Trials. None will have greater interest or importance than this trial of the libel action Dering v Uris and Others.’
Well, they certainly did things differently there back then.
About ten years after the London libel trial, I did my first jury trial here in Melbourne. The ANZ had bounced a cheque drawn by a caravan park business. The business was run by a company controlled by a retired copper. Gavan Griffith, KC, who is a mate, had given elegant advice to sue, but he was not available for the trial in the County Court.
It was my first libel action, and appearance before a jury, and I spent about a week boning up on the law. The bank, represented by my old firm Blakes, had taken every defence under the sun, including truth – except for qualified privilege, where there was an old Full Court authority against me staring me straight in the face. Then there was the sad fact that the company was in essence defunct – damages might be nil, if indeed the action was competent at all. There are problems about acting for someone who is dead.
Well, I took robust ethical advice on each of those issues. The bank was competently represented and could plead its own case, and make its own inquiries, and I had a brief to appear for a corporation delivered by a respectable firm of solicitors. I was very nervous, but we got through, and we got a verdict – for the sum of $500 – on the second day. The ex-copper was happy, and so was I.
I thought we were OK when I concluded my opening to the jury by saying that the bank was not content just to bounce the cheque – they charged our account for the privilege as well. Two of the jurors gave me very knowing looks.
The charge of the judge to the jury was novel – possibly because he did it in reliance on a text that looked at least half a century out of date. Well, we are talking of events about half a century ago.
The damages were not high, but $500 was the start of the second rung of costs in the County Court scales then. I think that I could then charge about $140 for the two days in court and the week’s preparation (learning the law). That was something of a bonus back then.
After that, defamation became about one third of my practice, and I was retained to act for the ABC.
About ten years later, they got sued after a member of a teachers’ union in a bitter industrial dispute said it was little wonder that the plaintiffs had been described as ‘Quislings’. But the plaintiffs had described others as ‘white ants’. The common law allows a tit for tat defence, and the plaintiffs folded on about day three.
The ABC had retained senior counsel and my role was limited to doing the pleadings – and cross-examining one witness. That was not hard. ‘This was an ugly industrial brawl, and if you called someone a white ant, what sort of response would you expect?’
Some years later, the ABC got sued by an Australian sporting hero for saying he had built a training facility on toxic ground. I was then a partner in a law firm. I briefed the current Commonwealth Attorney -General to lead counsel who is now a senior appellate judge. We thought it was not much of a libel at all and that it was in substance true.
The policy of the ABC then, which I had a part in forming, was to fight such cases, particularly if they involved a public figure. But the judge did not like Aunty at all, and we were kicking into a gale. The jury gave the plaintiff the Victorian record in damages – reduced on appeal. I think I may still hold the record after the states caved into the press and capped the damages a jury could award.
Well, win some, lose some. With, I am sorry, your money in this case.
About ten years later, I went back to the Bar, in about 2002, and my time was limited to running tribunals, and advising on defamation, and in mediating actions.
I rarely enjoyed that. I thought that a lot – possibly most – of the libel actions should never have been started. Too many degenerated into an ugly and demeaning squabble about how to divide very meagre spoils. Neither side was happy. And both had good reason to be very unhappy.
Well – how do things stand now?
Before looking at that, I may say that I appeared in the Federal Court about forty years ago to ask the court to order trial by jury. That right, I submitted, was close to being a constitutional right because of legislation going back to Fox’s Libel Act 1792 in England (32 Geo III, c 60) and the role of the jury in the history of England and its law.
I can still recall the look on the face of Justice Northrop when I said that Sir Owen Dixon had directed a jury in a murder case in that very courtroom. (We were in the old High Court building in Melbourne.) The application failed handsomely. (It was reported somewhere, but I cannot now find it. I think I was for GTV 9.)
The Federal Court was not created to hear common law claims traditionally heard before a jury, and it is not equipped to do so. But our legal history, both here and in England, is replete with stories about forum shopping and downright turf wars. They just happen. They are utterly unbecoming and they obviously detract from the popular assessment of our judicial system. If the judges cannot get their act together, what’s the reaction to them of the Storm supporters in what is no longer called the outer?
Now for the present.
In November 2017, a Murdoch tabloid, which Wikipedia says a 2013 review found to be the least trusted newspaper in Australia, published grubby allegations about the behaviour of the actor Geoffrey Rush toward a young woman actor – who was not the cause of the publication.
Mr Rush sued for libel in the Federal Court. It is now the preferred mode of trial for those who do not want to face the people in the form of a jury. (And there are no prizes for guessing who they are. There was more than schadenfreude going around when one MP, Peter Dutton, who is said to be very wealthy, came a gutser, and had a very modest award of damages overturned on appeal – all in the Federal Court.)
Had this actor behaved ‘inappropriately’? There look to have been at least nine separate rulings by the court outside of the trial. The trial lasted 15 sitting days – three less than Dering v Uris. The judge referred to ‘recklessly irresponsible pieces of sensationalist journalism of the very worst kind’ in a written judgment published five months later. It runs to 229 pages. The summary looks to be about five times the length of the two reported decisions in Dering. It looks like more than 100 hundred cases were cited in argument – including four prior rulings in that case, so giving us a premonition of perpetual motion. And that has an almost Californian flavour to it.
The perpetual problem with suing for libel is that the cure may be a lot worse than the disease. It inevitably entails so much protected repetition of the libel.
You look at some cases and say: ‘Well, there can here be no winner´- whatever that means in this context. Could the award of any amount of money dissolve the stigma that must inevitably attach to someone copping the blaze of adverse publicity that Geoffrey Rush got?
As a general rule, it is very unusual for any successful plaintiff who wins a huge award of damages to think that they are as well off as if the wrong had never been inflicted on them in the first place. The law very rarely makes people whole after a wrong has been done to them.
The inevitable shortfall is just worse in defamation cases. And that’s why I spent a lot of my professional life advising people, especially those with any sort of public profile, to just take a powder and get on with your life – and stay away from such battle grounds. Among other things, you should not expose yourself to the risk of a judge having a go at you. Very publicly. And with no right of reply.
And it is not just the parties who can take a hiding. The findings against the credit of the woman actor in this case are the saddest case of collateral damage I have seen in a forensic contest. Opinions might differ on whether they were necessary or desirable in this case, but they just would not have happened in a jury action. (And I am glad that the young lady has not just survived – her career has taken a stellar leap. She can now keep company with the best of them. And good luck to her.)
Well, if the Rush case was a landslide, the Roberts-Smith case is an earthquake. If ever there was a case where there could be no real winner, this is it. And there are two certain and inevitable losers – the Australian army and the Australian people.
Guerrilla wars involving foreign invaders have led to the worst of war horrors since Goya documented them in the Spanish war that gave birth to the term. And the murder charges have now begun for our involvement in one of them. The nation has been expressly advised that we face very bleak times.
Which surprises no one who thought that we should never have been anywhere near what is said to be the scene of the crimes. Those horrors were not just foreseeable but inevitable – and in the way of things, those guilty of sending our young men into these horrors will not stand beside them in the dock.
I will not rehearse the issues, and I will leave to God the question of whether they are graver than those in Dering v Uris. But what I might call the house-keeping details are horrifying in themselves.
I am told the following. The Statement of Claim runs for 136 pages. The Defence was only 27 pages. 53 witness statements were filed. Forty witnesses were called. There were 38 interim decisions. The trial ran for 110 sitting days. That’s six times the length of Dering v Uris. The media put a figure of $25,000,000 for costs all up. The judgment may be the size of War and Peace.
That kind of forensic carnage mirrors the military horror seen in All Quiet on the Western Front.
Finally, we have the risible if not the trivial. Young Lachlan Murdoch sued a newspaper for libel. Most people in Australia, and Europe, see the U S as a wreck because of what Trump did to the nation, and they regard the Murdoch family as responsible for putting Trump there through the agency of the vile Fox News.
That entity sought to defend a libel action in the U S. It maintained that the Bill of Rights allowed it to peddle lies it knows to be false. The evidence that was before the court indicated that it did this to maintain its ratings. That is to say, Fox News spread lies for profit. So, the Murdoch family were admitting that they disseminate falsehood and spread conflict in the nation for money.
And if they were right that the First Amendment protected them, then the Americans have matched the constitutional achievement of the French after 1789 by inserting in the constitution a licence to blow it up, and U S jurists are further off the rails than we ever thought.
The Murdoch family caved and settled the U S action – for obvious reasons. The settlement is an implicit admission of liability. Then Lachlan ran up the white flag in his. In accordance with custom, they all lied about the wind-downs.
In those circumstances, a libel action by a member of that family in this country against a newspaper that does not have the benefit of the U S Bill of Rights was truly something of wonder. In my view, it should have been sent to the Magistrates’ Court with an indication that it could be fixed for hearing within a fortnight. And allowing only a day or two for the hearing.
Instead, there were visits for rulings in the Federal Court. The last version of the Statement of Claim exceeded 50 pages. The current version of the Defence was getting longer. The press said it would be challenged before the hearing.
And the likelihood is that Fox will continue as before because it is a financial prisoner of its own base. Trump keeps his base in tow. Fox’s base keeps it in line. Charming.
And ordinary people with real grievances have trouble getting heard. And they know that justice delayed is justice denied. And this dreadful case, and aspects of the Roberts-Smith case, suggest that the Federal Court has become a playground, or sand-pit, for the bitchy rich. And the little Aussie battler lives on in the penumbra of the cause of death attributed to Dylan Thomas – ‘Insult to the brain.’
Let me go back to the case I started with, and the cases I was involved in before 1986.
There were clear ways back then where a lawyer could have been declared to be mad. One would have been to say that a party could have procured a denial of the right of another party to trial by a jury in a libel action.
A surer way would have been to assert that all the evidence should be reduced to prepared witness statements in advance of the hearing. Or that the pleadings should be anything like those referred to above, or that judges sitting alone should devote page after page in their judgment to the issue of the credit of one witness. (On my reading of the Rush decision, more than seventy pages of the judgment was taken up in a consideration of the evidence of one witness.)
My training in pleading was done on the job. Say, thirty years or so. Sir Daryl Dawson, and Justices T W Smith and Ormiston, introduced me to the technique. It led me to the view, which I still hold, that a Statement of Claim that exceeds three A4 pages suggests prima facie that the claim has real problems. And in libel actions, the same conclusion would be open if the imputations exceeded, say, four of about one and a half lines each.
I suspect that the authors of these epic judgments share another failing. They take time off to compile them. This is like telling someone not to speed and then handing them the keys to a Ferrari. Or we might say that it has done to judgments what time charging has done to lawyers’ fees. And times.
The obsession with court management, directions hearings, and endless paper warfare dates back to the mid-eighties. It has blown times and costs to Kingdom Come. And just think – so very long ago, 800 years or so, our ancestors got the king to promise not to sell, deny or delay justice.
One division of the Victorian AAT that started in 1985 was far less august than Her Majesty’s judges. It banned directions hearings and witness statements, and actively discouraged any proliferation of paper. It promised and delivered decisions within six weeks of referral. Its President addressed a conference at the university in the A C T. He commenced his remarks saying: ‘I come from Victoria – where we write our judgments at night.’ It was always the federal people who had more pull on the public purse.
The jury is integral to the common law model of adversarial litigation. Its premises of our democracy of government by the people are simple. People come together to elect people to make the laws and a smaller number of people are called on to say if a law has been broken.
A common law trial is not a pursuit of truth by many means. It follows the Maitland model of the cricket umpire. The judge, with or without a jury, responds to the question ‘How’s that?’
In a civil suit, the answer is found by asking which of the two sides has the stronger case. When I did ‘crash and bash’ cases in the early 1970’s, the sensible magistrates simply said ‘On balance, I think their version is a bit more probable than yours. Can you prepare the costs orders?’ That was that. We all know that only God knows what actually happened.
With the shift to a process that is managed by the judge from the start, often with many pretrial applications, and mountains of paper that just keep getting larger as the technological revolution runs in sync with the judicial evolution, we can see a shift from the adversarial to the inquisitorial model. This was neither foreseen nor planned. But it is fundamental.
About fifteen years, I ran into a Federal Court judge on the train one Monday morning. He was weighed down by two very heavy pilot cases full of documents. He was starting a long trial that morning – and he had spent most of the weekend reading all that suff. I did not ask why. There are plenty of good judges – including Lord Denning – who would say that all that preparation was not just unnecessary, but harmful. Why not leave it to counsel to present their cases? That is what the trial is supposed to be about. (In the Auschwitz case, the judge told counsel he had looked at the pleadings. It would not have taken his Lordship long to have done so.)
The result commonly is that the judges tend to just sit it out. So many cases finally collapse under what Gibbon referred to as the weight of their ‘own stupendous fabric’. Or we get a book-length decision which has no resemblance to a jury verdict, but every resemblance to the report of a royal commission. And the royal promise not to deny or delay justice is routinely violated before our eyes.
One other result is that we have swathes of lawyers who have little idea of how to conduct a common law trial – because they have done so little of it. Counsel spend most of their lives sitting behind a desk and taking part in the paper wars. They rarely get on their feet in scraps in court. That’s not how Neil McPhee, Jeff Sher or Alan Archibald mastered their technique and achieved their superiority at the Bar.
And how many members of the Bar now are as comfortable in the High Court as they are before a jury? (Well, I had misgivings before both. But I was convinced that that huge temple in Canberra was built to frighten lawyers, and it did just that to me.)
When I did a summer school at Harvard about twenty years ago, the lecturer said that so few class actions got to trial that people did not know how to run them. That seemed to me then to be the case with us across the board. And people are taking that lack of experience with them all the way to the bench. And with their promotions.
And, as Kurt Vonnegut said, so it goes.
Another result is that very few counsel can cross-examine now. Rather, what you get is counsel standing in front of piles of documents extracted from the cloud under a latterday version of duress – the process of discovery comes from Chancery – giving a wry smile to the TV camera, in what they think may have been the mode of Clarence Darrow or, perhaps, Gerald Gardiner, and a look at the next victim in the witness box that says: ‘You and I are going on a journey, Sunshine. It won’t be short. Its object is to show you as a mug (and me as clever).’
Now, I well understand how the new generation looks with justified disdain at old people like me saying that things were done better in my day – but in truth they were.
There are rules about cross-examination, especially on credit, or on prior inconsistent statements, but very few lawyers now know them, and even fewer apply them. And those rules are so important when so much of what passes for cross-examination is based on prior statements made a long time ago and recovered from the ether to the unending chagrin of the poor, frazzled witness.
And it is all made so much worse by the pernicious Chancery practice of reducing the evidence of a witness to a written statement. I have never understood how you can avoid a confectionery of dissimulation that is as unfair to the witness as it is to the court. All it does is to convey to the bewildered participants that going to law is a very dicey business that is above their understanding as well as their means.
Now, I do not know how many of the judges who hear defamation cases in the Federal Court have appeared before, or directed, a jury in a libel action, but I suspect it may be close to the number of those presently on the High Court who have appeared before, or directed, a jury in crime. Which is to say – not many, if any.
But what I do see is the vastness of the chasm that has opened up in the way we hear and determine, civil cases, and libel actions in particular since the jury gave its verdict in Dering v Uris – that is, well within my lifetime.
If it is said that these cases are too hard for juries, how did that happen? Are they harder than in the Auschwitz trial? Who made directing a jury as hard and fraught as it now is, so that we so often have the nightmare that Lord Gardiner, Mr Duncan, QC and the judge were so keen to avoid – an appeal and retrial? If the general public were told of how many guilty verdicts are set aside on appeal, with directions for a retrial, such faith as they may now have in our justice system would be sorely depleted.
And while we have misgivings about the American trial system, they are way ahead of us in their faith in juries and in the cases they put before juries. Such as Dominion v Fox, which would have led to an epic inquest here.
Another product of the tech revolution is that superior courts tend to resemble Ph D factories delivering footnoted theses that complicate things – to put it softly. So, inferior court judges write long judgments with a view to immunising their decision from appeal – and all too often with the contrary result.
It would be unwise to seek to disguise what I understand to be the animosity between the levels of the judiciary so sadly and snootily called ‘superior’ and ‘inferior’. It gets worse if those below think those above them have never had to work at their coal face. And that is too often the case.
The task of the lawyer is simpler to describe than to perform. First, it is to identify the issues to be resolved. As I recall it, Lord Diplock thought most cases turned on one issue. The good lawyers are those who do that first. The best are those who frame the issue in such a way as to satisfy the court that it is the preferred option. And I repeat – no-one is there to mimic God.
Longevity is not inevitable in earth moving cases in our common law. The judgment of Lord Atkin in Donoghue v Stevenson [1932] AC 562 runs for about twenty-one pages in the Law Reports. His Lordship was sorry it was so long compared to that of Justice Cardozo on the same point.
The issues in most defamation cases are simple enough to state – although many lawyers, including me, have made a good living out of behaving as if this were not the case.
Most libel cases turn on the following, although a lot of huffing and puffing may surround them. What did the words referring to the plaintiff mean? In that meaning, would they cause people to think less of the plaintiff? In that meaning, were the words true?
And those three issues are quintessential jury issues.
(May I here say something about the endless whingeing and bleating of the press about our libel laws – with which they have intimidated all state governments? I acted on both sides and I know where the power and money lie. It is not too much to ask of the press that if they want to hurt someone, they might at least get their facts right. They don’t lose when they do. And that goes for both Aunty and Rupert – and Lachlan.)
The problem for us lawyers in my view comes down to a failure of nerve.
It is of the essence of a professional vocation that the professional has the learning and the technique – on a good day, what Sir Owen Dixon, after Maitland, described as ‘high technique’ – to determine what course it is in the best interests of the client to adopt. And he or she also has the acquired and justified nerve to apply that decision, and prune off the extras. We have in my view persistently underrated the need for courage in our profession.
And the result?
Counsel do not have the nerve to deliver a statement of claim that makes the point and nothing else. And they do the same with their witness statements, which must soon get the AI treatment, and their cross-examination. They get so nervous that they just throw in the kitchen sink. (In the school cadets a very long time ago, we were taught that the Bren gun was far too accurate for jungle warfare – we should prefer the Owen gun that just sprays ammo everywhere. You just had to make sure you did not get in front of one.) And these attitudes – these failings – are passed on, or carried by counsel to the bench.
The adversarial trial is a form of conflict derived over many centuries by the common law to resolve a prior conflict between members of the community. It is a fight of sorts that had as one predecessor trial by battle.
You can get very badly hurt if you go to court. Like surgery, it is not something to be entered into lightly or ill advisedly. People have lost their lives, their fortunes, their homes, their names, their access to their children, as the result of such trials. And if there is a better or softer way of dealing with the underlying conflict, we have not seen one that we find favour in.
If you can’t stomach that, you are in the wrong place if you are a litigation lawyer.
If you are, you might memorise some observations of Clausewitz in his treaty On War. They are spot on for all of us.
War is the realm of danger; therefore, courage is the soldier’s first requirement. Courage is of two kinds: courage in the face of personal danger, and courage to accept responsibility, either before the tribunal of some outside power or before the court of one’s own conscience …War is the realm of uncertainty …The role of determination is to limit the agonies of doubt and the perils of hesitation when the motives for inaction are inadequate…Determination proceeds from a special type of mind, a strong mind rather than a brilliant one….Presence of mind is nothing but an increased capacity of dealing with the unexpected…. Strength of character does not consist solely in having powerful feelings, but in maintaining one’s balance in spite of them.
You can assess the real need for professional people to have the ‘courage to accept responsibility’ from the resolute determination of so many in our public life to avoid having anything like it. For example, just look at the Robodebt scandal. No one owned up. Not one.
We lawyers look to have forgotten all that, and we have laid waste to our heritage in just one or two generations. And it is not only Sir Owen Dixon, Lord Denning, Lord Gardiner and F W Maitland who would have looked upon it all in horror.
Libel actions then and now
And the courage to accept responsibility
A Polish doctor named Dering sued the author Leon Uris over a passage in the novel Exodus. An account of the trial is in the book Auschwitz in England (MacGibbon and Kee, 1965).
It was written by two members of the English Bar who were law reporters. We are told that the record in the book was not based on a verbatim written transcript, but presumably the notes of the reporters. (I don’t think the English had transcripts for murder trials then. I don’t know if they do now. The fly note to the book says that one reporter covered appeals and ‘other jury trials where rapid note-taking is useful.’ The other reporter did a line in philately.)
The passage in the book sued upon referred to a German doctor at Auschwitz using ‘women as guinea-pigs’ and said that Dering, the name being spelt wrongly, had ‘performed seventeen thousand experiments in surgery without anaesthetic.’
The writ issued in December 1962. The Statement of Claim covered a couple of pages. So did the Defence delivered in February 1963. But the details of the plea of truth – ‘particulars of justification’ in the jargon – cover about three pages in the book.
The printers gave an apology in open court in May 1963. It looks like there were many arguments about issues of procedure – what lawyers call pleadings and discovery – although the book does not refer to any rulings by the court prior to trial.
(Pleadings are court documents where each side sets out the material facts alleged. They were developed over centuries and meant to formulate issues to go the jury. They have become very bloated and too often don’t help the court reach a decision. Discovery is a process started in the Chancery, not common law, division of the courts. You have to produce every document that might bear on the case. With the internet, the result can be a blizzard, and a gravy train for the lawyers. It puts clients in a hard place and most of their lawyers in a harder place. You don’t get thanked for telling your client they must do something that will destroy their case.)
The publishers admitted the publication, and that it was defamatory, but said that with some exceptions, what was said of Dering in one short paragraph in a long novel was true. They gave details which had to be supplemented when further evidence, including a vital hospital register, was uncovered. The ruling on that issue is reported.
The case came on for hearing before a London jury in April 1964. The trial ran for 18 sitting days. That was then a very long trial in England. No witness gave evidence in English except for four English expert witnesses. There were problems with the interpreters.
The summing up of the judge took five hours. The jury came back in less than three hours with a derisory verdict for the plaintiff of a ha’penny.
There was then an argument about costs because of the lowness of that amount, and a prior offer of settlement by a payment into court. That was of course determined on the spot in one of the two reported rulings of one or two pages. The trial was over. Judgment was entered a little over a day after the conclusion of the evidence and addresses to the jury.
Dering, the plaintiff, and his lawyers must have known that he was playing with fire, because the Home Office had held him in prison for nineteen months while they looked at whether he should face war crimes charges. In a civil action, he would have to give evidence, and his accusers would face a lower standard of proof.
The trial involved harrowing evidence from victims of what the judge described as ‘the greatest crime that has ever been committed’. There were serious issues of fact and morals.
Dering’s case was that as a prisoner he had no option but to do what he did – such as castrating men without anaesthetic. In opening the case, counsel for the plaintiff said that in Auschwitz, if you were ordered to carry out an operation, you did so, or you got ‘bumped off’. He said the defence was Alice in Wonderland – it was like saying ‘You may not have committed murder, but you were involved in a brawl.’
Apart from issues of fact, there were real issues about duress and superior orders. That led to the judge referring to Aristotle and St Augustine in his summing up.
The judge told the jury that the trial was not a war crimes trial – but in substance it was.
The witnesses wanted anonymity. The judge told the court ‘as one of Her Majesty’s judges’ that he would be appalled if the Press published identities of witnesses, and the Press box gave the defence solicitors a note saying that they would preserve witness anonymity. That was that.
Counsel discussed with the judge how the jury should be instructed. The authors say: ‘Lord Gardiner said that he was very anxious that nothing now submitted by him should tempt the Judge to give any direction which might be open to question on appeal, for the long-term interest of both parties was that this case should finish at this trial – a retrial would be a tragedy for both sides.’
The judge said that he had read all the cases on coercion and that the law was ‘astonishingly vague’. He said he would just tell the jury that duress was no answer to murder and that was that. The case was reported just on two procedural issues. It decided no issue of new substantive law.
So, here were the leaders of the profession acting professionally and sensibly to avoid having their clients fall down a man-hole if they could decently achieve that result. In other words, here we see professional people acting professionally.
I am finding it hard to recall seeing that here recently. Doubtless it goes on still – but not, I think, as often as it should. We do after all owe obligations to the court – and to the public and to common sense and decency.
Mr Duncan QC opened the case to the jury for about four hours. Dering’s evidence in chief took five hours. Lord Gardiner QC’s cross-examination lasted seven hours.
The evidence of Dering did not start well. The judge asked him if ‘you are satisfied that you have taken the oath in a manner that is binding’. Dering replied that it did not matter as he was a Christian and a Catholic. To which the judge said ‘You had better be sworn properly. Take the Douai version.’
I have not gone into any detail about the issues of fact. They arose from evidence of the most horrifying crimes imaginable. And it is impossible to imagine a jury having to determine more complex and more vital and stomach-turning issues.
The judge reminded them that they were talking about what happened in Auschwitz in 1943, not London in 1964. Although some doctors had avoided doing that kind of surgery at Auschwitz, the ordinary person was not and did not aspire to be a saint.
Lord Gardiner had argued that Dering was wrong to do what he did and that fear was no excuse. The judge said the jury should decide how the average man could be expected to behave under those conditions, and that he could not give them guidance about morals. But he said Lord Gardiner was undoubtedly right in saying that people had to take a stand at some time and say ‘I will die rather than do this’. And I think one doctor said he would have committed suicide rather than carry out one form of order.
Leading and junior counsel for Dering became the authors of the new leading text on defamation, Duncan and Neill. (It was a very lucid text on a fraught subject.) Lord Gardiner would become Lord Chancellor. He was one of those ineffably urbane English silks. (They were slower in handing out silk then. It took Duncan from 1928 to 1963, and Lord Gardiner from 1925 to 1948).
Lord Gardiner was said by the authors to have ‘no histrionic tricks’. Well, he certainly had a sense of theatre. He was cross-examining Dering about what had passed between him and another doctor, whom he (Dering) knew Gardiner would be calling, and a victim. Dering replied that that doctor had been out to get him. Lord Gardiner said that he was not just relying on that doctor, but that, while looking behind him to the body of the court, he was relying on the evidence of the victim – who was sitting behind him.
Lord Gardiner later called a French woman doctor. He asked whether she had refused to carry out certain operations because to do so would have put her in breach of her Hippocratic Oath. She said she had. The next question, without a pause and in the same voice, was: ‘Were you shot?’
Finally, when the jury retired at 11.15 am, the authors inform us that the judge, Mr Justice Lawton, began hearing the next case in his list. It was a jury action for libel in which a mail order company and its managing director sued a newspaper. His Lordship interrupted that hearing when the jury came back at 2.30 pm. He then heard and determined the issue of costs. No cases were cited in that argument. The ruling on this ‘difficult problem’ is reported at [1964] 2 WLR 1298. His Lordship then went on with the next libel action that went for a week and where the plaintiff got up to the tune of £15,000.
Lord Denning wrote a Foreword to the book (about two years before I, in awe, met his Lordship). He concluded: ‘Many are the Reports of State Trials or Famous Trials. None will have greater interest or importance than this trial of the libel action Dering v Uris and Others.’
Well, they certainly did things differently there back then.
About ten years after the London libel trial, I did my first jury trial here in Melbourne. The ANZ had bounced a cheque drawn by a caravan park business. The business was run by a company controlled by a retired copper. Gavan Griffith, KC, who is a mate, had given elegant advice to sue, but he was not available for the trial in the County Court.
It was my first libel action, and appearance before a jury, and I spent about a week boning up on the law. The bank, represented by my old firm Blakes, had taken every defence under the sun, including truth – except for qualified privilege, where there was an old Full Court authority against me staring me straight in the face. Then there was the sad fact that the company was in essence defunct – damages might be nil, if indeed the action was competent at all. There are problems about acting for someone who is dead.
Well, I took robust ethical advice on each of those issues. The bank was competently represented and could plead its own case, and make its own inquiries, and I had a brief to appear for a corporation delivered by a respectable firm of solicitors. I was very nervous, but we got through, and we got a verdict – for the sum of $500 – on the second day. The ex-copper was happy, and so was I.
I thought we were OK when I concluded my opening to the jury by saying that the bank was not content just to bounce the cheque – they charged our account for the privilege as well. Two of the jurors gave me very knowing looks.
The charge of the judge to the jury was novel – possibly because he did it in reliance on a text that looked at least half a century out of date. Well, we are talking of events about half a century ago.
The damages were not high, but $500 was the start of the second rung of costs in the County Court scales then. I think that I could then charge about $140 for the two days in court and the week’s preparation (learning the law). That was something of a bonus back then.
After that, defamation became about one third of my practice, and I was retained to act for the ABC.
About ten years later, they got sued after a member of a teachers’ union in a bitter industrial dispute said it was little wonder that the plaintiffs had been described as ‘Quislings’. But the plaintiffs had described others as ‘white ants’. The common law allows a tit for tat defence, and the plaintiffs folded on about day three.
The ABC had retained senior counsel and my role was limited to doing the pleadings – and cross-examining one witness. That was not hard. ‘This was an ugly industrial brawl, and if you called someone a white ant, what sort of response would you expect?’
Some years later, the ABC got sued by an Australian sporting hero for saying he had built a training facility on toxic ground. I was then a partner in a law firm. I briefed the current Commonwealth Attorney -General to lead counsel who is now a senior appellate judge. We thought it was not much of a libel at all and that it was in substance true.
The policy of the ABC then, which I had a part in forming, was to fight such cases, particularly if they involved a public figure. But the judge did not like Aunty at all, and we were kicking into a gale. The jury gave the plaintiff the Victorian record in damages – reduced on appeal. I think I may still hold the record after the states caved into the press and capped the damages a jury could award.
Well, win some, lose some. With, I am sorry, your money in this case.
About ten years later, I went back to the Bar, in about 2002, and my time was limited to running tribunals, and advising on defamation, and in mediating actions.
I rarely enjoyed that. I thought that a lot – possibly most – of the libel actions should never have been started. Too many degenerated into an ugly and demeaning squabble about how to divide very meagre spoils. Neither side was happy. And both had good reason to be very unhappy.
Well – how do things stand now?
Before looking at that, I may say that I appeared in the Federal Court about forty years ago to ask the court to order trial by jury. That right, I submitted, was close to being a constitutional right because of legislation going back to Fox’s Libel Act 1792 in England (32 Geo III, c 60) and the role of the jury in the history of England and its law.
I can still recall the look on the face of Justice Northrop when I said that Sir Owen Dixon had directed a jury in a murder case in that very courtroom. (We were in the old High Court building in Melbourne.) The application failed handsomely. (It was reported somewhere, but I cannot now find it. I think I was for GTV 9.)
The Federal Court was not created to hear common law claims traditionally heard before a jury, and it is not equipped to do so. But our legal history, both here and in England, is replete with stories about forum shopping and downright turf wars. They just happen. They are utterly unbecoming and they obviously detract from the popular assessment of our judicial system. If the judges cannot get their act together, what’s the reaction to them of the Storm supporters in what is no longer called the outer?
Now for the present.
In November 2017, a Murdoch tabloid, which Wikipedia says a 2013 review found to be the least trusted newspaper in Australia, published grubby allegations about the behaviour of the actor Geoffrey Rush toward a young woman actor – who was not the cause of the publication.
Mr Rush sued for libel in the Federal Court. It is now the preferred mode of trial for those who do not want to face the people in the form of a jury. (And there are no prizes for guessing who they are. There was more than schadenfreude going around when one MP, Peter Dutton, who is said to be very wealthy, came a gutser, and had a very modest award of damages overturned on appeal – all in the Federal Court.)
Had this actor behaved ‘inappropriately’? There look to have been at least nine separate rulings by the court outside of the trial. The trial lasted 15 sitting days – three less than Dering v Uris. The judge referred to ‘recklessly irresponsible pieces of sensationalist journalism of the very worst kind’ in a written judgment published five months later. It runs to 229 pages. The summary looks to be about five times the length of the two reported decisions in Dering. It looks like more than 100 hundred cases were cited in argument – including four prior rulings in that case, so giving us a premonition of perpetual motion. And that has an almost Californian flavour to it.
The perpetual problem with suing for libel is that the cure may be a lot worse than the disease. It inevitably entails so much protected repetition of the libel.
You look at some cases and say: ‘Well, there can here be no winner´- whatever that means in this context. Could the award of any amount of money dissolve the stigma that must inevitably attach to someone copping the blaze of adverse publicity that Geoffrey Rush got?
As a general rule, it is very unusual for any successful plaintiff who wins a huge award of damages to think that they are as well off as if the wrong had never been inflicted on them in the first place. The law very rarely makes people whole after a wrong has been done to them.
The inevitable shortfall is just worse in defamation cases. And that’s why I spent a lot of my professional life advising people, especially those with any sort of public profile, to just take a powder and get on with your life – and stay away from such battle grounds. Among other things, you should not expose yourself to the risk of a judge having a go at you. Very publicly. And with no right of reply.
And it is not just the parties who can take a hiding. The findings against the credit of the woman actor in this case are the saddest case of collateral damage I have seen in a forensic contest. Opinions might differ on whether they were necessary or desirable in this case, but they just would not have happened in a jury action. (And I am glad that the young lady has not just survived – her career has taken a stellar leap. She can now keep company with the best of them. And good luck to her.)
Well, if the Rush case was a landslide, the Roberts-Smith case is an earthquake. If ever there was a case where there could be no real winner, this is it. And there are two certain and inevitable losers – the Australian army and the Australian people.
Guerrilla wars involving foreign invaders have led to the worst of war horrors since Goya documented them in the Spanish war that gave birth to the term. And the murder charges have now begun for our involvement in one of them. The nation has been expressly advised that we face very bleak times.
Which surprises no one who thought that we should never have been anywhere near what is said to be the scene of the crimes. Those horrors were not just foreseeable but inevitable – and in the way of things, those guilty of sending our young men into these horrors will not stand beside them in the dock.
I will not rehearse the issues, and I will leave to God the question of whether they are graver than those in Dering v Uris. But what I might call the house-keeping details are horrifying in themselves.
I am told the following. The Statement of Claim runs for 136 pages. The Defence was only 27 pages. 53 witness statements were filed. Forty witnesses were called. There were 38 interim decisions. The trial ran for 110 sitting days. That’s six times the length of Dering v Uris. The media put a figure of $25,000,000 for costs all up. The judgment may be the size of War and Peace.
That kind of forensic carnage mirrors the military horror seen in All Quiet on the Western Front.
Finally, we have the risible if not the trivial. Young Lachlan Murdoch sued a newspaper for libel. Most people in Australia, and Europe, see the U S as a wreck because of what Trump did to the nation, and they regard the Murdoch family as responsible for putting Trump there through the agency of the vile Fox News.
That entity sought to defend a libel action in the U S. It maintained that the Bill of Rights allowed it to peddle lies it knows to be false. The evidence that was before the court indicated that it did this to maintain its ratings. That is to say, Fox News spread lies for profit. So, the Murdoch family were admitting that they disseminate falsehood and spread conflict in the nation for money.
And if they were right that the First Amendment protected them, then the Americans have matched the constitutional achievement of the French after 1789 by inserting in the constitution a licence to blow it up, and U S jurists are further off the rails than we ever thought.
The Murdoch family caved and settled the U S action – for obvious reasons. The settlement is an implicit admission of liability. Then Lachlan ran up the white flag in his. In accordance with custom, they all lied about the wind-downs.
In those circumstances, a libel action by a member of that family in this country against a newspaper that does not have the benefit of the U S Bill of Rights was truly something of wonder. In my view, it should have been sent to the Magistrates’ Court with an indication that it could be fixed for hearing within a fortnight. And allowing only a day or two for the hearing.
Instead, there were visits for rulings in the Federal Court. The last version of the Statement of Claim exceeded 50 pages. The current version of the Defence was getting longer. The press said it would be challenged before the hearing.
And the likelihood is that Fox will continue as before because it is a financial prisoner of its own base. Trump keeps his base in tow. Fox’s base keeps it in line. Charming.
And ordinary people with real grievances have trouble getting heard. And they know that justice delayed is justice denied. And this dreadful case, and aspects of the Roberts-Smith case, suggest that the Federal Court has become a playground, or sand-pit, for the bitchy rich. And the little Aussie battler lives on in the penumbra of the cause of death attributed to Dylan Thomas – ‘Insult to the brain.’
Let me go back to the case I started with, and the cases I was involved in before 1986.
There were clear ways back then where a lawyer could have been declared to be mad. One would have been to say that a party could have procured a denial of the right of another party to trial by a jury in a libel action.
A surer way would have been to assert that all the evidence should be reduced to prepared witness statements in advance of the hearing. Or that the pleadings should be anything like those referred to above, or that judges sitting alone should devote page after page in their judgment to the issue of the credit of one witness. (On my reading of the Rush decision, more than seventy pages of the judgment was taken up in a consideration of the evidence of one witness.)
My training in pleading was done on the job. Say, thirty years or so. Sir Daryl Dawson, and Justices T W Smith and Ormiston, introduced me to the technique. It led me to the view, which I still hold, that a Statement of Claim that exceeds three A4 pages suggests prima facie that the claim has real problems. And in libel actions, the same conclusion would be open if the imputations exceeded, say, four of about one and a half lines each.
I suspect that the authors of these epic judgments share another failing. They take time off to compile them. This is like telling someone not to speed and then handing them the keys to a Ferrari. Or we might say that it has done to judgments what time charging has done to lawyers’ fees. And times.
The obsession with court management, directions hearings, and endless paper warfare dates back to the mid-eighties. It has blown times and costs to Kingdom Come. And just think – so very long ago, 800 years or so, our ancestors got the king to promise not to sell, deny or delay justice.
One division of the Victorian AAT that started in 1985 was far less august than Her Majesty’s judges. It banned directions hearings and witness statements, and actively discouraged any proliferation of paper. It promised and delivered decisions within six weeks of referral. Its President addressed a conference at the university in the A C T. He commenced his remarks saying: ‘I come from Victoria – where we write our judgments at night.’ It was always the federal people who had more pull on the public purse.
The jury is integral to the common law model of adversarial litigation. Its premises of our democracy of government by the people are simple. People come together to elect people to make the laws and a smaller number of people are called on to say if a law has been broken.
A common law trial is not a pursuit of truth by many means. It follows the Maitland model of the cricket umpire. The judge, with or without a jury, responds to the question ‘How’s that?’
In a civil suit, the answer is found by asking which of the two sides has the stronger case. When I did ‘crash and bash’ cases in the early 1970’s, the sensible magistrates simply said ‘On balance, I think their version is a bit more probable than yours. Can you prepare the costs orders?’ That was that. We all know that only God knows what actually happened.
With the shift to a process that is managed by the judge from the start, often with many pretrial applications, and mountains of paper that just keep getting larger as the technological revolution runs in sync with the judicial evolution, we can see a shift from the adversarial to the inquisitorial model. This was neither foreseen nor planned. But it is fundamental.
About fifteen years, I ran into a Federal Court judge on the train one Monday morning. He was weighed down by two very heavy pilot cases full of documents. He was starting a long trial that morning – and he had spent most of the weekend reading all that suff. I did not ask why. There are plenty of good judges – including Lord Denning – who would say that all that preparation was not just unnecessary, but harmful. Why not leave it to counsel to present their cases? That is what the trial is supposed to be about. (In the Auschwitz case, the judge told counsel he had looked at the pleadings. It would not have taken his Lordship long to have done so.)
The result commonly is that the judges tend to just sit it out. So many cases finally collapse under what Gibbon referred to as the weight of their ‘own stupendous fabric’. Or we get a book-length decision which has no resemblance to a jury verdict, but every resemblance to the report of a royal commission. And the royal promise not to deny or delay justice is routinely violated before our eyes.
One other result is that we have swathes of lawyers who have little idea of how to conduct a common law trial – because they have done so little of it. Counsel spend most of their lives sitting behind a desk and taking part in the paper wars. They rarely get on their feet in scraps in court. That’s not how Neil McPhee, Jeff Sher or Alan Archibald mastered their technique and achieved their superiority at the Bar.
And how many members of the Bar now are as comfortable in the High Court as they are before a jury? (Well, I had misgivings before both. But I was convinced that that huge temple in Canberra was built to frighten lawyers, and it did just that to me.)
When I did a summer school at Harvard about twenty years ago, the lecturer said that so few class actions got to trial that people did not know how to run them. That seemed to me then to be the case with us across the board. And people are taking that lack of experience with them all the way to the bench. And with their promotions.
And, as Kurt Vonnegut said, so it goes.
Another result is that very few counsel can cross-examine now. Rather, what you get is counsel standing in front of piles of documents extracted from the cloud under a latterday version of duress – the process of discovery comes from Chancery – giving a wry smile to the TV camera, in what they think may have been the mode of Clarence Darrow or, perhaps, Gerald Gardiner, and a look at the next victim in the witness box that says: ‘You and I are going on a journey, Sunshine. It won’t be short. Its object is to show you as a mug (and me as clever).’
Now, I well understand how the new generation looks with justified disdain at old people like me saying that things were done better in my day – but in truth they were.
There are rules about cross-examination, especially on credit, or on prior inconsistent statements, but very few lawyers now know them, and even fewer apply them. And those rules are so important when so much of what passes for cross-examination is based on prior statements made a long time ago and recovered from the ether to the unending chagrin of the poor, frazzled witness.
And it is all made so much worse by the pernicious Chancery practice of reducing the evidence of a witness to a written statement. I have never understood how you can avoid a confectionery of dissimulation that is as unfair to the witness as it is to the court. All it does is to convey to the bewildered participants that going to law is a very dicey business that is above their understanding as well as their means.
Now, I do not know how many of the judges who hear defamation cases in the Federal Court have appeared before, or directed, a jury in a libel action, but I suspect it may be close to the number of those presently on the High Court who have appeared before, or directed, a jury in crime. Which is to say – not many, if any.
But what I do see is the vastness of the chasm that has opened up in the way we hear and determine, civil cases, and libel actions in particular since the jury gave its verdict in Dering v Uris – that is, well within my lifetime.
If it is said that these cases are too hard for juries, how did that happen? Are they harder than in the Auschwitz trial? Who made directing a jury as hard and fraught as it now is, so that we so often have the nightmare that Lord Gardiner, Mr Duncan, QC and the judge were so keen to avoid – an appeal and retrial? If the general public were told of how many guilty verdicts are set aside on appeal, with directions for a retrial, such faith as they may now have in our justice system would be sorely depleted.
And while we have misgivings about the American trial system, they are way ahead of us in their faith in juries and in the cases they put before juries. Such as Dominion v Fox, which would have led to an epic inquest here.
Another product of the tech revolution is that superior courts tend to resemble Ph D factories delivering footnoted theses that complicate things – to put it softly. So, inferior court judges write long judgments with a view to immunising their decision from appeal – and all too often with the contrary result.
It would be unwise to seek to disguise what I understand to be the animosity between the levels of the judiciary so sadly and snootily called ‘superior’ and ‘inferior’. It gets worse if those below think those above them have never had to work at their coal face. And that is too often the case.
The task of the lawyer is simpler to describe than to perform. First, it is to identify the issues to be resolved. As I recall it, Lord Diplock thought most cases turned on one issue. The good lawyers are those who do that first. The best are those who frame the issue in such a way as to satisfy the court that it is the preferred option. And I repeat – no-one is there to mimic God.
Longevity is not inevitable in earth moving cases in our common law. The judgment of Lord Atkin in Donoghue v Stevenson [1932] AC 562 runs for about twenty-one pages in the Law Reports. His Lordship was sorry it was so long compared to that of Justice Cardozo on the same point.
The issues in most defamation cases are simple enough to state – although many lawyers, including me, have made a good living out of behaving as if this were not the case.
Most libel cases turn on the following, although a lot of huffing and puffing may surround them. What did the words referring to the plaintiff mean? In that meaning, would they cause people to think less of the plaintiff? In that meaning, were the words true?
And those three issues are quintessential jury issues.
(May I here say something about the endless whingeing and bleating of the press about our libel laws – with which they have intimidated all state governments? I acted on both sides and I know where the power and money lie. It is not too much to ask of the press that if they want to hurt someone, they might at least get their facts right. They don’t lose when they do. And that goes for both Aunty and Rupert – and Lachlan.)
The problem for us lawyers in my view comes down to a failure of nerve.
It is of the essence of a professional vocation that the professional has the learning and the technique – on a good day, what Sir Owen Dixon, after Maitland, described as ‘high technique’ – to determine what course it is in the best interests of the client to adopt. And he or she also has the acquired and justified nerve to apply that decision, and prune off the extras. We have in my view persistently underrated the need for courage in our profession.
And the result?
Counsel do not have the nerve to deliver a statement of claim that makes the point and nothing else. And they do the same with their witness statements, which must soon get the AI treatment, and their cross-examination. They get so nervous that they just throw in the kitchen sink. (In the school cadets a very long time ago, we were taught that the Bren gun was far too accurate for jungle warfare – we should prefer the Owen gun that just sprays ammo everywhere. You just had to make sure you did not get in front of one.) And these attitudes – these failings – are passed on, or carried by counsel to the bench.
The adversarial trial is a form of conflict derived over many centuries by the common law to resolve a prior conflict between members of the community. It is a fight of sorts that had as one predecessor trial by battle.
You can get very badly hurt if you go to court. Like surgery, it is not something to be entered into lightly or ill advisedly. People have lost their lives, their fortunes, their homes, their names, their access to their children, as the result of such trials. And if there is a better or softer way of dealing with the underlying conflict, we have not seen one that we find favour in.
If you can’t stomach that, you are in the wrong place if you are a litigation lawyer.
If you are, you might memorise some observations of Clausewitz in his treaty On War. They are spot on for all of us.
War is the realm of danger; therefore, courage is the soldier’s first requirement. Courage is of two kinds: courage in the face of personal danger, and courage to accept responsibility, either before the tribunal of some outside power or before the court of one’s own conscience …War is the realm of uncertainty …The role of determination is to limit the agonies of doubt and the perils of hesitation when the motives for inaction are inadequate…Determination proceeds from a special type of mind, a strong mind rather than a brilliant one….Presence of mind is nothing but an increased capacity of dealing with the unexpected…. Strength of character does not consist solely in having powerful feelings, but in maintaining one’s balance in spite of them.
You can assess the real need for professional people to have the ‘courage to accept responsibility’ from the resolute determination of so many in our public life to avoid having anything like it. For example, just look at the Robodebt scandal. No one owned up. Not one.
We lawyers look to have forgotten all that, and we have laid waste to our heritage in just one or two generations. And it is not only Sir Owen Dixon, Lord Denning, Lord Gardiner and F W Maitland who would have looked upon it all in horror.
With Compliments 