Hushes and Varying Lights

On a Friday lunch hour in 1964, hungry and thirsty barristers returning from court were a chattering scrum around the doors of the Owen Dixon Chambers lifts. The doors of a descending lift opened, its interior lights revealing two male occupants; dei ex machina, so to speak. One was tall, ducal looking and immaculate in navy blue. The other was slightly stooped, hawk-nosed and hawk-eyed. He had the air of knowing many secrets and of having the answers to all the questions they raised. The scrum’s forward surge stopped. There was a hush as the scrum parted to allow a pathway for the two men as they turned to the main door. They passed, giving the overwhelming impression of being quite unaware of anybody else around them or of the hushing impact that their appearance had created. New to the Bar, on enquiring about them, I learned that I had just seen John Young QC and Keith Aickin QC on their way to lunch.

This was my first knowledge of two silks, both former associates of Sir Owen Dixon, who, despite the standing of other luminaries at the top of the Victorian Bar at that time, seemed to inhabit a peak apart. Their lofty standing made it irresistible, when passing the suite of chambers they shared, not to peer with curiosity into their anteroom. Invariably, however, all there was to be seen was a sedate secretary at an IBM typewriter quietly typing some document that one knew was about some heavy matter.

Against this background, it was daunting, a year or so later, to receive a brief as junior to Young QC. It was to advise in conference about a matter of commercial importance to a New South Wales family that owned a major steel mill. In those days, intercourse between the states was not common for counsel; to have clients fly to Melbourne from Sydney for a conference was markedly significant. These were days when air hostesses wore waisted navy blue suits and little navy felt hats. “Business class” had its name because businessmen (there were no business women) were not yet terrified that a shareholder would see them there. Frequent flyer schemes did not exist. It was even before Sir Reginald Ansett nearly grounded his airline by ruminating in public that some of its hostesses were “old boilers”.

At the appointed conference hour, the Sydney clients were shepherded by a Malleson Stewart (as it then was) partner as they crowded into Young QC’s anteroom and spilled into the corridor. With expectant awe, the clients were taken into Young QC’s chambers, where he greeted them with dignified courtesy before seating them in chairs placed in a wide semi-circle facing his desk. He sat the instructing solicitor and me on either side of the desk, facing the clients. The scene was set; only a proscenium could have completed it.

There was a hush as we waited for the conference to start. It crossed my mind that John Young probably found nothing unusual about a hush in his presence.

Young QC reached for his brief across a wide white blotter, his hand extending from a snow-white cuff and navy sleeve. These were the days before briefs came in ring binders. This weighty roll, tied with pink tape, had a look and diameter similar to a barber’s pole. A heavy staple pushed through a metal star and the staple ends pressed down on either side held its contents together. Young QC slipped off the tape and, to refer to the brief’s contents, began to unfasten the staple. We waited in silence. His long white fingers manoeuvred the stubborn staple. Then, with the effect of blood miraculously appearing on the forehead of a holy statue, a bright spot of red appeared on the pad of Young QC’s thumb. It stood out, brilliant against his hand, cuff and blotter as it swelled and began to drip. Without a moment’s loss of sang froid, he watched the sang chaud with contempt. Then, without looking at the solicitor, Young QC slid the brief back across the desk to him, and, in his Oxford accent, addressed to the clients his opening words of the conference: “I was never a solicitor long enough to learn how to work those things.”

It seems now that the format of this remark was not novel for John Young. In his obituary for Sir John (see Victorian Bar News, no. 146, Summer 2008) Michael Collins Persse reports Sir John explaining: “I never did learn to polish my boots properly” since at Sandhurst officer cadets had people to do it for them.

After my “blooding”—and his—I was briefed to appear with Young QC in a case fixed to be heard in early November. Once again, it was a difficult matter, just as one would expect of a brief for this leader. I bent myself to the wheel on a useful public holiday, Melbourne Cup Day. Surrounded by books, I believed I had come up with something that might help and, full of enthusiasm, rang my leader at home to pass on the good news. Young QC’s first response was to say, in a gentle voice:

“David, you don’t follow horses, do you?”

“Can’t say I do, really. Why?”

“It’s just that the Melbourne Cup started at the moment you rang.”

Embarrassed and apologetic at being so out of touch, I was about to terminate my call at once but the former mounted Guards officer and lifelong horse lover assuaged my concern in kind tones and insisted that I continue with what I wanted to report.

Next, I was Young QC’s junior in a case heard in Hobart. After the first hearing day in the old Supreme Court with its unique semi-circular blue baize Bar table, Young QC proposed that we go for a walk. It was winter, and as we set off, it was about to become dark. My leader wanted to walk to Battery Point, which could be reached from our accommodation by walking along the historic and lovely Salamanca Place. That place runs beside the docks, separated from them only by a line of dock sheds. It was, however, also physically possible to reach our destination via the docks themselves, just on the other side of the sheds. It was that way that Young QC wished to go. The difficulty that I saw with that choice was the obvious presence of signs strongly forbidding unauthorised entry to the wharf area past its high, cyclone wire fencing. The gate in the fence happened to be open but there were a number of stevedores about, apparently with not much to do and quite likely, I feared, to think that two “suits” trespassing in their territory could be a juicy target for abuse. I drew my leader’s attention to the signs and suggested walking by Salamanca Place. John Young did not seem to notice the signs and gave only the briefest of grunts in response to my remark.

With all the unawareness that I had seen as he emerged from the Owen Dixon lift, Young QC strode through the gate and onto the wharf. We walked along its length, Young QC swinging an unfurled umbrella that flapped against his long legs as he strode. As a bit player in this march-through I was a poor substitute for Aickin QC but Young QC had the presence to carry the occasion on his own. The stevedores watched from the doorways to the sheds, just as hushed as if they were barristers outside a lift, without any sign of restiveness. Perhaps they thought John Young owned the wharf. He gave the impression that he did. For me, the gathering darkness of the day’s end showed a headstrong man who was entirely lacking in self-doubt.

Young QC’s 1973 appearance for Alan Humphrey Croxford, Chairman of the Melbourne and Metropolitan Board of Works, before a Victorian board of inquiry showed him in yet another light. The board of inquiry investigated certain land transactions by Croxford in his home locality. There were allegations of misuse of his position. This was a fact-driven, witness-heavy investigation and Young QC’s role for Croxford seemed far from his usual type of case. In the event, in the course of his successful defence, Young QC pulled off a forensic strategy that would have made his Sandhurst lecturers proud.

This time, I was at the other end of the Bar table as junior to counsel assisting the inquiry. The terms of reference comprised a set of separate questions each raising, as to a particular transaction, whether (in effect) there had been misconduct in relation to it by Croxford. The evidence led by counsel assisting was detailed and extensive, covering each of the matters for investigation. Finally, that evidence led by counsel assisting came to an end and Young QC announced, to nobody’s surprise, that he would call Croxford.

After the long evidence concerning Croxford’s activities, the tension as he took the witness seat was palpable. Young QC stood up and asked Croxford the necessary formal questions. Then, ostentatiously holding the inquiry’s terms of reference out in front of him, Young QC read out the first of its questions, converting it into a question capable of admission or denial: “Did you …?” Croxford replied with a forceful “No”. Young QC then moved to the second question and repeated the process. So he went through each of the questions in the terms, receiving a denial on each occasion. Young QC then sat down.

There was a disbelieving silence in the room; no mere hush this time. The assumption had been that, presented with the chance, Croxford would go into detail in volunteering his side on the questions that were the result of much public and media speculation. My leader, in particular, who heroically conducted his role seated with a fully plastered broken leg jutting horizontally under the Bar table, was no doubt looking forward to taking some notes for a while rather than continuing to take the initiative. Here it was, handed back to him. It was the role of counsel assisting to get the material evidence out. He could hardly leave it at that. It was he who had, in effect, to elicit from Croxford, an experienced former common-law barrister, the evidence as to his response but without the benefit of any instructions about what to lead. Further, if counsel assisting showed aggression in pressing Croxford on an issue, Young QC was quick to complain that counsel assisting should not depart from an independent role and act like a prosecutor. The entire strategy was bold and brilliant. Croxford was cleared (see Parliamentary Paper No. 40 of 1972-1973).

My last memory, as a junior, of John Young is of being subjected to a searching cross-examination by him. By 1977 Young QC had become Sir John Young CJ. At that time, in order to apply for silk, one wrote a letter in August to the Chief Justice of Victoria seeking an appointment for an interview in September. After that interview, in October the applicant would receive a letter revealing the outcome, for better or for worse, of the application.

Having decided to apply, I had to ask to see the Chief Justice early, in August, since I was not to be in Victoria in September. My request was granted but it meant that, since I was the first interviewee of the year, I was like a canary in a miner’s cage. When the time came, he asked many questions about the contemporaneous Bar.

I had had no idea what to expect in the interview. I had heard that one had to take one’s fee book for the Chief Justice to inspect but I could not imagine Young CJ doing that and did not take it. I found that Young CJ’s chambers were surprisingly cramped and I was surprised at the dimness in which we sat after the broad space and natural light of his room at the Bar. In fact, he did not mention my fee book; his searching questions were enough.

Young CJ conducted the interview in a friendly way, but, at its conclusion, there was nothing relevant about my practice and prospects as a silk that he had not enquired about. One question that I thought a particularly interesting probe was: “Whom do you appear against most?” What better way to ascertain what solicitors thought one was capable of handling? Fortunately, the October letter meant that I did not have to go through that cross-examination again.

Turn now to Young CJ seen in a completely different light. Here, he took a supporting role to his wife, Elizabeth, who was, in this situation, the main player. From 1979, Elizabeth and I were trustees together of the National Gallery of Victoria. There were various Gallery events that involved our spouses and, of course, John Young would come along. This was the first time that I had seen him out of harness, not obliged to play a leading role. I enjoyed seeing him so relaxed and easy on those occasions. It still makes me smile to recall that, talking to them both on the night before a trustees’ meeting due to last all day on a Saturday, John Young, with a rebellious and flirtatious grin, said to my wife: “Right, we’ll go to the flicks.” The word flicks seemed so unexpected from John Young, but I realised it was probably straight out of his British wartime service vocabulary.

Talking of her husband to me one day, Elizabeth passed on to me two admonitions that, she said, John had told her that she should always remember. The first was: “A person is as big as the thing that worries them most.” Hearing this, I recalled his contemptuous look, so long before, at the spot of blood on his thumb. The second was: “Never forget that you weren’t born a day too soon.” That could be a sad reflection, but perhaps it should be understood with Sir John’s remark reported by the Honourable Clive Tadgell QC in his obituary after Sir John’s death on October 6, 2008: “I have been extremely lucky. My luck began the day I was born.”