But why now, Jim? I know I have been less than regular at the Big Table recently, but did it have to come to this? Well, I suppose that having a logical mind, you will say ‘why any other time?’ And the truth is – the one great truth is – that it must happen some time.
We could have further recalled that day – that wonderful day for me about a quarter of a century ago – when I was hearing tax cases at a tribunal that then sat in an insalubrious part of King Street. I used to hear cases on Friday so I could write a decision on the weekend. I had given the papers a cursory look – Lord Denning, whom you disapproved of, was very firmly of the view that people hearing cases should not go into the material in depth before the start of the hearing, but leave it up to counsel to say what the case was about. I saw that it was a stamp duty case and that it raised a very simple issue. Should duty on a transfer of land be assessed on the value of the legal estate or on the value of the equitable estate? The taxpayer was AMP (I think) and was represented by Mallesons – this is what’s called the big end of town. The amount of money involved was very large. This could obviously be a big case.
Well, in the name of God, there must be truckloads of law on this. But I was to find out that this was one of those unnerving lacunae in our law. I asked my clerk to find out who was appearing. She told me that Mr J D Merralls QC was appearing with Mr David Batt for the taxpayer and that Mr Richard Boaden was appearing for the Crown. I think I may say that my heart felt like it skipped a beat with something like a mixture of apprehension and pride. I was to be addressed on a very fine point of equity by the undisputed leader of the equity bar.
As I recall, we ran until about 1:35 PM. I like to finish before lunch. If you allow some counsel time to get second wind, you might be there forever. I recall having to ask Richard Boaden whether he thought he might make some passing reference to the decision of the Crown that he had been briefed to defend – the case had opened up a worryingly wide issue. People who have to decide cases like to know what is the question that they have to answer.
I took off to the other end of town to begin writing a decision. I had no idea what the result might be – I was in truth having some difficulty working out what the process to reach any result might be. I formed the view that this task would relieve me of going to the partners’ conference in Canberra. I was overruled on that. I flew up to Canberra, put a folder with my name on it outside the front door of the main meeting room and returned to my room in the Hyatt to spend the whole weekend on room service writing the decision. I suppose it took about twenty hours. (The pay, as you know, Jim, was ludicrous.)
I think I put the decision out on Monday. You lost. And you took it like the sportsman that you are. I was lucky never to be worried about what might happen to anything I did on appeal, but in this case I did not want to let you down. In truth, I did not want to make a fool of myself before you. We had to drill down, as they say on Bloomberg TV, beyond Snell, beyond Ashburner, and even beyond Maitland, my hero – and perhaps go in search of what your hero, Sir Owen Dixon, was pleased to call ‘basal principle’. I might say that I found the whole thing both draining and exhilarating. That is I think the great prize in any professional life – but these prizes come with a price tag.
Or we could have further recalled that time in, I think, 1971, when I was sitting as the Associate to the late Tom Smith. You fought a little will case against Stephen Charles and, I think, some other member of counsel. The argument passed clean over my head. I was able to produce my Associate’s notebook of the case – and of course you were able to produce your numbered volume of your court book showing the outline of the argument of the case – which you could recall. I forgot who won, but I can remember not being able to handle the pronunciation of some of the nominate reports.
Or we could have further recalled that time when your horse won that big race and you were introduced to the Queen and the Duke, and His Royal Highness, as is his wont, made some droll remarks of a faintly anti-establishment kind. Or we could have further discussed those hilarious meetings between you and Gough, which Gough was able to recall in all their details – I wondered whether you got the irony of the fact that you also were able to recall every part of those meetings so many years after the event.
Or we could have recall the time when our email correspondence got underway. I recall your asking me whether I really had a daughter who was married to the Captain of the Melbourne Storm – I used to refer to Cameron Smith as my son-in-law. That correspondence from time to time threatened to become voluminous and to affect our outputs, as they say.
It started when I got into some strife. I was grateful for your support. It was of course not unqualified. When I first saw your name appear on my computer screen, I felt a certain frisson. I would never lose it, Jim. Your notes were always to the point, and might sometimes fairly be said to have been terse. Your emphatic decency could sometimes be unsettling. You and I differed on a lot of things – such as Lord Denning, Melbourne Storm, and Panto outfits – but deep down there was not I think a lot between us. But if I ever did take any wounds from you, Jim, they were only glancing, and, more importantly, I took them down the front – and God knows that is very rare for us – or anywhere else.
In what I think may have been your last email to me, you gave as usual sensible advice. You said that if I were to be diagnosed with cancer, I could not do so in a better place than Melbourne. After two visits to Peter Mac, I understand just what you mean. And I think I have embarked on what might prove to be a series of waltzes or foxtrots that will go on until it comes my turn to shuffle off. As a German lady friend who has been through the mill said to me in an email that arrived overnight: ‘There is nothing to be done but to keep the dates of the regular examinations and to enjoy the time in between’.
My relationship with that quaint construct called the Victorian Bar has been on and off, love and hate. You were not so equivocal, but neither were you blinded. You stood for all that is good in this part of the profession. You are one of the few people I know from whom the word ‘honourable’ does not sound ridiculous. (The late Sir John Young was another.) You remind me of the boot-studder at the Collingwood Football Club – you are one of the solid, devoted, and utterly irreplaceable pillars of the place. Without people like you, Jim, our lives are so much poorer.
Now that you have gone, Jim, I have lost part of the furniture of my mind – part of my juristic as well as my forensic furniture. You have been a large part of my education and inspiration. But I can and will take my comfort from what I know that you also thought to be some of the most telling lines ever written. When Dietrich Bonhoeffer spoke at his Grandma Julie’s burial, he used words of surpassing beauty that keep coming back to us. ‘She came out of a different time, out of a different spiritual world, and this world will not shrink into the grave with her. This heritage, for which we are grateful to her, puts us under obligation.’ Bonhoeffer, too, understood and lived as a member of the noblesse oblige.
And for you, Jim, and only for you, I will award a Latin tag. You were sui generis – by the length of the bloody strait at Flemington.
But, bugger it Jim, there is now one less Old Melbourne Grammarian for me to annoy. And there will be one less person in the world to ask me if I really wore a pink cap to school.