Ceaseless enquiry

Review
Excursions in the Law
by Peter Heerey
Desert Pea Press
$59.95 hb, 282 pp, 9781876861131

What’s on a judge’s mind? Litigants and advocates would love to know. Former judge Peter Heerey answers that question in his latest book, a compendium of writing over many years, covering a vast array of topics and in myriad forms.

Heerey displays his abiding affection for his Tasmanian roots with an essay on the Tasmanian member of the group of authors of the Australian Constitution, Andrew Inglis Clark. He then shifts into high gear with commentary on the famous case of Professor Orr of the University of Tasmania, who was sacked for having a sexual relationship with an eighteen-year-old student. Orr challenged the dismissal. His case, somewhat amazingly, ended up in the High Court, which dismissed his appeal.

Heerey’s interest in legal history is keenly felt in his writing about barristers, and the Victorian Bar in particular. The Victorian Bar commenced its roll of barristers in 1900. Nearly 5,000 lawyers have signed that roll, promising to practise law as specialist advocates, including Sir Owen Dixon (no. 117) and Sir Robert Menzies (no. 155). Peter Heerey was no. 810 in 1967. He went on to have a distinguished judicial career as a Federal Court judge, commencing in 1990, until his compulsory retirement (at age seventy) in 2009. He has since returned to the Bar, limiting his involvement to mediations and arbitrations.

It is a fact of judicial life that our judges separate themselves from their peers at the Bar and the day-to-day workings of the Bar (though the judges who were barristers remain members of the Bar). They do so in order to maintain independence as decision makers. Heerey nevertheless continued his personal interest in the Bar as an institution, as reflected by his compendious knowledge of the history of the Bar, and his interest in the more colourful among its members. He also displays a great interest in the traditions of the Bar, including the mysterious but worthy practice of Silks giving red bags, in which to carry robes, to impressive junior barristers. He records how the same bag can sometimes be passed through generations of recipients, and have an auspicious lineage in its own right. 

As an author of judgments, Heerey was well known and much admired for the precision and clarity of his text, a skill on display in his present writing. He did not waste a word, while at the same time covering all bases. We see that here. He presciently observes that judgments are essentially directed to the losing party. He also takes on the chestnut of ‘readability’, observing that ‘readability is in no way inconsistent with legal sufficiency’. Judges are not necessarily naturally gifted as writers, such that the continuing education which judges undertake includes training in writing by well-known writers, including Helen Garner, Chris Wallace-Crabbe, and Eva Sallis. 

A book of Heerey’s collected works would not be complete without poetry. He is a poet of wit, and here he uses verse to display affection for certain of his peers and also to dip his lid to some of the more esoteric conventions of legal practice, such as the rule of evidence which derives from the case of Briginshaw v. Briginshaw. Surely this work is unique as the only poem dedicated to this befuddling case.

He also writes with insight on Robert A. Caro’s significant biography of Lyndon Johnson (the fourth volume of which he reviewed in ABR in November 2012), as well as a biography of Justice Antonin Scalia by Joan Biskupic, and provides a comment on Abraham Lincoln as an unlikely patent lawyer. There is a certain irony in Heerey’s comment on Lincoln, given that Heerey made a particular mark in patent law as a judge though he had no particular background in this field as a barrister.

A section of the book is devoted to law and literature, including a detailed examination of the case of Shylock v. Antonio, which has so troubled commentators on The Merchant of Venice, and which he reveals might have been resolved in the modern age of Australian law in terms of possible breaches by Antonio of the Australian Consumer Law through Antonio’s invention of various scams to avoid repaying Shylock’s loan.

Heerey also comments on the comparative impact on judges of oral and written submissions, with the tendency in the modern age of litigation for the significance of oral submissions to be diminished in favour of writing. He cautions against that shift, observing that effective oral argument can change outcomes. If nothing else, it can provide advocates and judge with a genuine chance to engage with one another in open court and not merely to become embroiled in the desk warfare that he considers has become the hallmark of appellate litigation in the United States, where oral submissions, before nine judges in the US Supreme Court, are usually confined to thirty minutes for both sides.

There is plenty of engagement on show here from a mind full of ceaseless enquiry. The book is a testament to the foolhardiness of the provision in the Australian Constitution (introduced by referendum in 1977), which has resulted, as Heerey well demonstrates, in many of our best legal minds being lost to the bench at what can be the alltoo-premature age of seventy.

First published in the Australian Book Review, November 2014