21 Questions: The Honourable David Habersberger QC

Law School Profiles

1. From Melbourne Law Student to Supreme Court Judge, how would you describe your journey in the law?

A lot of luck, and lot of hard work. But on the whole, extremely enjoyable. I really enjoyed my time as a barrister and as a judge. In terms of luck, the bar is a strange place. There were people starting off at the same time that I did, who seemed to be talented, and for some reason they just didn’t get briefs. And if you don’t get briefs, you don’t earn any money and you can’t stay. Obviously it takes time to get started. The Tasmanian Dams case was also a huge break for me. I’m sure that that was just a bit of luck, in terms of being available to start work when required. 

2. You graduated with an honours degree in Arts (Political Science) in 1968 and a first class honours degree in Law in 1970. What is your favourite memory from studying at Melbourne University?

My best memory from law school was my mooting experience. I did it internally in my second and third years and thought it was great fun. Through my role as counsel, I decided that I wanted to be a barrister. I loved it.

That then led to intervarsity mooting in my last two years of law. This was a annual competition between law students from Australia and New Zealand, which rotated around capital cities and law schools. It’s interesting to look back on the two teams I was in. Most of the members went on to become QCs and Judges.

3. What attracted you to working in the law?

When I left school, I was very interested in international relations, but as soon as I started the introductory legal subject, it just grabbed me. I enjoyed the intellectual challenge and the way the lawyers went about arguing and deciding the cases. I found the whole process fascinating and knew that it was what I wanted to do.

4. What did you learn from carrying out clerkships with the Department of Labour and National Service and the Commonwealth Attorney-General’s Department?

At the Department of Labour and National Service, I learnt that I did not want to be public servant and that I wanted to be a barrister. However, it was a great introduction to the real world. I realised that it was tough and working was not easy compared to being a university student. The job involved being a conduit between factories and people looking for work. It was a real eye opener at how hard it was for some people to find employment.

In my position at the Attorney General’s Department, I was really just debt collecting for the Commonwealth. It was interesting, you would have files that you would have to look at on that particular day. Every month you would look at the file again, send another letter, or decide to take proceeding. It was a good introduction to basic legal work, which I had little understanding of as a student. We didn’t have the contact between the profession and the law school like we have these days.

5. In 1972, you were an associate to Chief Justice Barwick. What is the day in the life of an associate at the High Court like?

Being an associate in the High Court was a fantastic experience as you are exposed to advocacy of the highest order and you work closely with the judge. You get an insight into how he or she, although they were all ‘he’s’ in those days, went about their work.

But today it’s very different so I thought instead, I would talk more about what the day was like for my associates at the Supreme Court. They would be responsible for exhibits and transcripts during a trial. Before or after court, they would do some research for me. We used to talk a lot about the case or judgment I was working on. I found it very helpful to clarify ideas from talking things through.

When I was in charge of a list, such as the commercial list or the probate list, the associate was a lot busier. This is because lists would have a regular directions day, and the solicitors would be constantly on the phone to the associate about whether their matter would be listed and so on.

The associate would also proofread my judgments, looking for factual or grammatical errors, as well as errors of reasoning. I would encourage them to voice their opinions, although I didn’t necessarily agree with them.

We would talk about the advocacy in court, discussing why the barrister didn’t ask this question or how they argued their points. I think that they found that interesting.

6. As junior counsel, you appeared in The Commonwealth v Tasmania (the Tasmanian Dam Case). Can you describe what it was like to work on such a significant case?

It was a wonderful experience. I represented the Hydro Electricity Commission, which was very influential in Tasmania at the time. I got to work alongside leading silks like Bob Ellicott who was a Federal Court Judge for a short time and a former Commonwealth Attorney-General and Solicitor-General. As well as Murray Gleeson who later became Chief Justice of the High Court. On the other side, there were people like Michael Black, who intervened for the Greens, and later became Chief Justice of the Federal Court, as well as Mary Gaudron, who was the NSW Solicitor-General at the time. There was an incredible array of talent.

We sat at the main court room in the High Court in Canberra. The bar table was enormous, there were so many counsel we couldn’t all fit at the table. It was full on. I think the case went into a third week which is most unusual in the High Court.

One of the most interesting things when I think back was the day that the court delivered its reserved decision. I was briefed to go to Brisbane, where the High Court was sitting, to hear judgment. The courtroom in the Queensland Supreme Court was large, but it was absolutely packed, with people sitting in the aisles. The tension was incredible. We all had our little road maps, because there were so many different issues and seven judges. Sir Harry Gibbs, who was Chief Justice, made that all unnecessary by announcing at the start that the Commonwealth had ‘won’. It was really a significant moment of constitutional law and great to be part of it.

Another thing I took out of the case was the importance of the rule of law. Here, we had two governments fighting about what they could and could not do. Ultimately when the court decided no, you can’t dam the Franklin, as a society we just accepted it and moved on with life. Rather than going to war, the issues were argued out and the case was resolved by legal principles.

A final highlight of the case was that when we had gone to Tasmania to obtain some witness statements, we were flown in a helicopter up the Franklin river to the site of the proposed dam. There was a great gash on the bank where the forest had been cut down and the workmen’s huts had been built. On the other side, were all the greenies with their tents. Apart from that, the scenery was magnificent.

7. In 2001, you were invited by the Attorney General to become a Supreme Court Judge. What was your first reaction?

It was very exciting. I was 55 and I had thought that I was probably just about too old to be appointed. When the Attorney-General asked me, I said I would like to talk it over with my wife on the weekend. But there was never any doubt, and first thing Monday I rang back and said I would accept. It was a huge privilege and honour. It came at the time when it was good to have a change in my career.

8. Did you model your judicial approach on any past judge you respected or did you try approach things in an independent manner?

I can’t say that I had any one particular judge in mind. I had obviously seen a lot of judges in action so I knew the criticisms of judges in the past. I tried to be pleasant to counsel and witnesses, but sometimes frustration got the better of me if I thought time was being wasted on irrelevant issues.

9. What differentiates a good lawyer from a great lawyer?

Hard work and inspiration. Most lawyers work hard, but the great lawyers just have that knack of seeing the problem and being able to either cross examine really well or put their argument really well. Great lawyers adopt a creative approach, and conceptualise a case and come up with brilliant ideas. You need the brain power to work it out. In advocacy, there is a phrase ‘sorting out the wheat from the chaff’, meaning you need to get onto the good points and not get bogged down on irrelevancies. Concentrate on your best points and don’t get diverted onto small or irrelevant matters.

10. What case that you have worked on or judged has resonated with you the most over the years?

Apart from Tasmanian Dam, a case I enjoyed as much as anything was appearing as counsel for the chief electoral officer in Varty v Ives in 1986. This was a case about an election in the Nunawading province in the State Upper House, where at the end of the count, Rosemary Varty of the Liberal Party and Bob Ives of the ALP were tied. The chief electoral officer put the two names into a hat and pulled out one name, Ives. This gave the new Labour government a majority in the Legislative Council. The case was heard by a Supreme Court Judge sitting as the Court of Disputed Returns. On reexamination, if some of the votes could be challenged, then that might have altered the result. As counsel for the chief electoral officer, I was in the middle of the fight between the two political parties.

There were a number of problems with the votes. Apart from anything else, the chief electoral officer got into a lot of strife when he admitted that after he pulled the name out of the hat, he found four more votes which hadn’t been counted. He was a very honest and dedicated man, and he thought that if he now said I have four more votes, people would be suspicious. So he destroyed them. He thought he was doing the right thing for the integrity of the system. This admission alone meant that the result was declared invalid, although the Judge held that picking a name out of a hat was a proper way to resolve the apparent deadlock. A by-election was then held which Rosemary Varty won.

11. If you could make one thing mandatory at MLS to make students better lawyers, what would it be?

All law students should spent at least a week each year shadowing a barrister or solicitor to help them get an understanding of what law is like in practice. These types of experiences help with your study by putting things into context. Although it’s hard to arrange, if I could wave a magic wand, I would say everyone should have a great week learning from professionals.

12. If you could snap your fingers and overturn any HCA decision, would you do it and what would it be?

Perhaps I would have come to a different result in some of the dual citizenship cases. Although the wisdom of the seven judges combined is always going to be better than anything than I could change.

As a judge, you have to decide according to law. There is room for flexibility. I don’t think everything is clear. Statutes, facts and precedent can be viewed in different ways. But you do have to try and put your personal preferences aside and try to reach the result you think the law should reach. It’s hard, sometimes you have to give a decision you wish you really didn’t have to.

13. If you could be the CEO of any company, what would it be?

Save the Children. I do like to think we can do better in these areas and this would be a company that would be great to work for.

14. If you hadn’t pursued a career in the law, what would you have done instead?

I would have tried out for the diplomatic service. Or, I think I would have enjoyed being a secondary school teacher. Doing social studies at school is what first got me interested in international affairs. I would have liked to have taught politics or history.

15. What books do you recommend all law students read?

Law students should read all the classics like War and Peace or Thomas Hardy’s works. Another book I have just finished reading is All the Light We Cannot See by Anthony Doerr. A very moving book.

People who are interested in being a barrister should also read legal biographies. There is a great biography of Barwick CJ by David Marr and Phillip Ayres has also written a biography of Owen Dixon. I find legal biographies very interesting.

Also lawyers should read Rumpole of the Bailey by John Mortimer. He was an English silk, novelist and playwright. A great television series was made about Rumpole, a run of the mill criminal barrister at the Old Bailey in London.

As a slight tangent, all students should read the disclosure guidelines for applicants for admission to legal practice. Reading that should tell you what you know already – don’t get in trouble with academic misconduct or fraudulent behaviour, such as cheating Centrelink. The guidelines will tell you that when you come to get admitted you must make full disclosure of any misconduct. Candour is a very important thing.

I mention this because I am a member of the Victorian Legal Admissions Board and we see too many cases of applicants who did not appreciate at the time the serious consequences such misconduct could have on their wish to become a lawyer.

16. What are your favourite legal cases and why?

As counsel:

Buckenara v Hawthorn Football Club (1988)
Buckenara was a football player who came over from Western Australian to play for Hawthorn. However, then the West Coast Eagles were formed. He wanted to go back but he was on a contract that had another year to run. He argued that the Hawthorn officials had said they wouldn’t hold him to his contract. I was counsel for Buckenara and we lost. Although he had to stay, he got to play in a premiership team. It was a great case for football lovers.

Bell v Transport Accident Commission (1998)
The reason why this one sticks in my mind is that a a junior barrister brought me in to argue in the Court of Appeal about the interpretation of the Transport Accident Act. Immediately after we won, the government changed the Act to remedy the gap in legislation. It’s strange to think that you’ve done a case that has resulted in legislation being changed.

As judge:

Levy v Watt (2012)
A case concerning a stolen Rupert Bunny painting which had come into the hands of a third party. The facts were fascinating and the dispute also raised interesting legal questions.

Y v Austin Health (2005)
This was a very emotional case about a couple who tried unsuccessfully to have children over the last eighteen months but then the husband suffered a massive collapse. The wife came to court when he was at death’s door. She sought an order than upon his death, permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from his body to be stored for a possible subsequent attempt by her to become pregnant.

There were conflicting authorities from around Australia as to whether you could or should make such an order. Some judges had said no, because you are not meant to interfere with the bodies of deceased persons. Other judges had such an order was appropriate. There was legislation about the kind of procedure and one question was whether this legislation applied to the situation.

My decision was a holding decision. I said I would allow it. My view was that if you don’t allow the procedure to take place, and you later have the legal argument and decide it was lawful, it’s too late. If you allowed the removal, the legal argument could occur once emotions had calmed down and without time constraints. I really admired the young woman. It was a traumatic situation.

17. Law students are accustomed to reading legal judgments, but not writing them. How did you tackle this difficult task? Did you think about the law students who may have to read your judgments when you were writing them?

I hand wrote my judgments. I thought it was better for thinking through the issue but it made it a slow process. First, I would assemble the facts and go through the transcript and evidence. Often once you’ve done that, the answer to the problem becomes fairly obvious. Otherwise, you can go on to analyse the legal issues.

Of course you are conscious of the audience. There is pressure on Supreme Court Judges because they know their judgments are going to be read by a lot of people – the parties, practitioners and students. You try and make them clear, logical and not too boring. It’s hard. You don’t want to be frivolous. You try to stick to the facts.

I once made a reference to Shakespeare which I enjoyed. In the case, a daughter had fallen out with her generous father, and whilst he had previously favoured her over the brother, he patched it up with the son and cut his daughter out of the family trusts. She sued. It was a bitter and lengthy dispute. At one stage I quoted King Lear: ‘How sharper than a serpent’s tooth it is to have a thankless child!’

18. What is something that is currently legal, but won’t be in 20 years?

Negative gearing. My second suggestion is advertising for gambling on television and at sports grounds. But I suspect that it more wishful thinking.

19. Is working in a real life courtroom anything like how the TV shows portray it?

Depends on the show but most are nothing like real life in Australia. Although the ABC’s Silk is quite good. My suggestion is go to court, don’t watch it on television. It’s not the same because you cannot condense into 5 minutes what could take 3 or 4 days.

Court can sometimes be quite dramatic. When I was appointed, I had this fear that I might nod off on the bench but it’s fascinating, you’ve got barristers, witnesses and clients, all performing like in a play. A Judge can see it all.

20. What do you like to do in your spare time?

I like to read history, novels and biographies. I go the the theatre, cinema, football and travel. And of course, I love to spend time with my grand children.

21. What do you think is the single most important piece of advice for law students?

Study hard but leave enough time for family and friends. Study hard, play hard.

Cases:

Varty v Ives [1986] VR 1

Buckenara v Hawthorn Football Club [1988] VR 39

Bell v Transport Accident Commission [1998] 3 VR 288

Levy v Watt [2012] VSC 539

Y v Austin Health [2005] VSC 427

 

Amy Clements

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