Effective appellate advocacy: the ideal and the reality: explored through the advocacy of Sir

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Effective appellate advocacy:
the ideal and the reality - explored through
the advocacy of Sir Garfield Barwick in
constitutional law cases
Ashley Tsacalos
SID: 200402244
A thesis submitted in fulfilment of the requirements
for the degree_of Doctor of Philosophy,
The University of Sydney
2012
2
Abstract
This thesis involves an examination of the elements of effective appellate advocacy in terms of the
ideal and the reality in the context of Sir Garfield Barwick's advocacy in constitutional law cases,
particularly, the Bank Nationalisation Case and the Communist Party Case. The fundamental
question which the thesis aims to answer is: whether Sir Garfield Barwick's reputation as one of
Australia's greatest appellate advocates, especially in constitutional law cases, was justified. The
analysis of Barwick's advocacy in these two cases also examines whether the ideals of appellate
advocacy are achievable.
To be in a position to determine whether Barwick's reputation as a great appellate advocate was
justified, it is necessary to establish a framework of appellate advocacy through which to conduct
such an assessment. The framework or methodology established is the result of a critical exploration
of the elements of appellate advocacy as well as the ideals of appellate advocacy and this is then
contrasted to appellate advocacy in reality. The elements are divided into three categories, namely:
preparation, presentation and personation. Throughout the thesis, the assessment of Barwick's
advocacy occurs against the elements and ideals of appellate advocacy, referred to as the 'three
category analysis'. A significant part of this thesis is dedicated to undertaking a critical exploration of
the elements and ideals of appellate advocacy.
This methodology is then used to assess Barwick's approach to each category generally before being
extended to assess Barwick's appellate advocacy in reality in the context of the Bank Nationalisation
Case and the Communist Party Case.
The thesis concludes that Barwick's reputation as one of Australia's greatest appellate advocates was
justified following the Bank Nationa/isation Case and despite the result in the Communist Party Case.
3
Preface
The inspiration for this thesis was a burning desire to understand why Sir Garfield Barwick became
•
known as one of Australia's greatest appellate advocates. It was a question that no one had
previously attempted to answer or analyse in any substantive or comprehensive way. How is it that
someone can apparently excel in the field of appellate advocacy yet we know little about how they
earned this reputation and whether it was justified?
Gaining an understanding of whether Barwick's reputation as a great appellate advocate was
justified would also reveal the key elements and ideals of appellate advocacy. These are important
to identify for the purposes of assessing Barwick's appellate advocacy as well as understanding
modern day appellate advocacy in that they continue to apply to appellate advocacy today despite
the different environment in which such advocacy is conducted.
The thesis commences by examining the origins of advocacy and the differences between trial
advocacy and appellate advocacy. It then progresses to examining Barwick's early years at the Bar
before embarking on a critical exploration of the elements and ideals of appellate advocacy based on
three categories, namely, preparation, presentation and personation. At this point, this
methodology is then used to assess Barwick's approach to each category before being extended to
assess appellate advocacy in reality by examining Barwick's appellate advocacy in the Bank
Natiana/isatian Case before the High Court and Privy Council as well as his appellate advocacy in the
Communist Party Case.
The critical exploration of the elements and ideals of appellate advocacy within each category draws
upon material from judges, former judges, barristers, academics and legal commentators (including
interviews with judges, former judges and renowned barristers undertaken with ethics approval) as
well as the author's own views, and synthesises this material for the purposes of both identifying and
formulating the elements and ideals of appellate advocacy. The observations made by such persons
also assisted in terms of analysing Barwick's appellate advocacy generally and his appellate advocacy
in the relevant cases.
The thesis is my own original work.
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Acknowledgments
This thesis, like all of them I'm sure, has been a journey. John Lennon famously said that 'life is what
happens to you while you are busy 'making other plans'. I would revise this to 'life is what happens to
you while you are busy completing a PhD'.
I am indebted to my parents for their endless sacrifice and enduring love and support without which
none of what I have achieved would have been possible. I can never repay you. To my wife, you
have allowed me to pursue this dream of mine to the end and showed great patience, love and
understanding throughout. You may now have a great problem on your hands-me with a little
more "free" time. To my daughter and soon to be born second child, without realising, you have
both inspired me and given me the steely determination to complete my thesis.
I am grateful to the inspiration of my earlier supervisor, Professor George Winterton. His enthusiasm
for the topic of my thesis gave me confidence and energised me. I cherished each of our
consultation sessions which I found enlightening and informative. I always emerged after each such
session with a renewed sense of passion and enthusiasm. His knowledge astonished me. His bravery
and courage was inspiring. I am sure he would be proud of the final product.
To Professor Helen Irving, who inherited the supervision of me and my incomplete thesis and helped
guide me through the difficulties that inevitably one encounters when attempting to grapple with
such a novel and unique thesis topic. I appreciate your time and patience together with your
willingness to read successive draft after draft. You helped shape the thesis into what it should be to
ensure it makes a valuable contribution to knowledge. I also mention Professor Anne Twomey who
also played a role in supervising my thesis and thank her for her efforts.
Finally, I thank Sir Garfield Barwick who provided the inspiration for this thesis and whose advocacy
was responsible for my enduring interest.
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Contents
Chapter 1: lntroduction ............................................................................................................................7
1.1 Approach and Methodology ...................................................................................................8
1.2 Outline ...................................................................................................................................1 3
1.3 The Purpose of Advocacy ...................................................................................................... 18
1.4 Appellate Advocacy Versus Trial Advocacy ...........................................................................2 4
1.5 The Elements and Ideals of Appellate Advocacy .................................................................. 31
Chapter 2: Barwick's Early Years at the Bar ........................................................................................... 34
2.1 Going to the Bar ....................................................................................................................3 5
2.2 Taking Silk ..............................................................................................................................3 8
2.3 Early Constitutional Law Cases ............................................................................................. 42
Chapter 3: Preparation ...........................................................................................................................s o
3.1 The Power of Preparation ..................................................................................................... 50
3.2 Knowing the law, knowing the procedure ............................................................................5 1
3.3 Knowing the court-gauging support ...................................................................................6 0
Chapter 4: Presentation .........................................................................................................................6 5
4.1 Conceptualise the Case and the Relevance Base .................................................................. 65
4.2 The Opening ..........................................................................................................................7 1
4.3 The Reply ...............................................................................................................................7 4
4.4 Watch the Bench and Judicial Questions ..............................................................................7 5
4.5 Focus on the Substance, Elegance is a Bonus .......................................................................8 5
4.6 Flexibility, Discretion and Tact ..............................................................................................8 8
4. 7 Explain Policy and Principle ...................................................................................................9 5
4.8 Cite Authority with Care .......................................................................................................9 7
Chapter 5: Personation ........................................................................................................................1 02
5.1 Courage ...............................................................................................................................1 02
5.2 Honesty, Respect and Candour ...........................................................................................1 05
5.3 Emotion ...............................................................................................................................1 09
5.4 The Extras: Voice, Words, Wit, Presence and Memory ...................................................... 113
Chapter 6: Barwick's Approach to Preparation, Presentation and Personation .................................. 120
6.1 Barwick's Approach to Preparation .................................................................................... 120
6.2 Barwick's Approach to Presentation ...................................................................................1 35
6.3 Barwick's Approach to Personation ....................................................................................1 50
6
Chapter 7: Barwick and the Bank Nationalisation Case in the High Court .......................................... 160
7.1 Preparation for the Bank Nationalisation Case .................................................................. 161
7.2 Presentation and Personation in Chief in the Bank Natiana/isation Case .......................... 177
7.3 Barwick's Opening ...............................................................................................................1 78
7.4 Barwick's Submissions or;~ Characterisation ........................................................................ 182
7.5 Barwick's First Attack-What is Banking? .......................................................................... 187
7.6 Barwick's First Attack-In Reply ......................................................................................... 196
7.7 The High Court's View on Banking ......................................................................................2 05
7.8 Barwick's Second Attack-Section 92 to the Rescue .......................................................... 206
7.9 The High Court's View on Section 92 ..................................................................................2 24
Chapter 8: Barwick and the Bank Nationalisation Case in the Privy Council. ...................................... 235
8.1 Preparation for the Special Leave Application .................................................................... 235
8.2 Presentation and Personation for the Special Leave Application ....................................... 237
8.3 Preparation for the Bank Nationalisation Case in the Privy Council .................................. 245
8.4 Presentation and Personation in the Bank Nationalisation Case in the Privy Council ....... 250
8.5 The Privy Council's Decision ................................................................................................2 70
8.6 The Aftermath .....................................................................................................................2 76
Chapter 9: Barwick and the Communist Party Case ............................................................................. 278
9.1 Preparation for the Communist Party Case in the High Court ............................................ 278
9.2 Presentation and Personation in the Communist Party Case in the High Court ................ 285
9.3 The High Court's Decision ...................................................................................................3 15
9.4 The Aftermath .....................................................................................................................3 26
Chapter 10: Conclusion ........................................................................................................................3 28
List of Cases ..........................................................................................................................................3 37
List of Interviews ..................................................................................................................................3 42
Appendix A ...........................................................................................................................................3 43
Appendix B ...........................................................................................................................................3 45
Appendix C ...........................................................................................................................................3 47
Appendix D ...........................................................................................................................................3 50
Appendix E. .......................................... :. ...............................................................................................3 51
Bibliography ..........................................................................................................................................3 53
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Chapter 1: Introduction
"The law is a mystery and those that have mastered its intricacy have indeed great power in their
hands and great responsibility."
Sir Garfield Barwick, 19951
'Your Honour, Barwick for the appellant'.
From the 1930s and until the 1950s this was a common phrase heard in the High Court of Australia.
During this period, Garfield Edward John Barwick appeared regularly in the High Court and
established himself as the leading advocate during his time at the Bar. Throughout the 1940s and
50s, Barwick appeared almost exclusively in both the High Court and the Privy Council.2
Sir Garfield Barwick was renowned as Australia's leading appellate advocate when he was in practice
at the Bar. He was a leading advocate in many of the historically significant constitutional cases that
have been before the High Court' such as the Bank Nationa/isation Case4 and the Communist Party
Case. s Barwick then turned his attention to politics and was the federal member for Parramatta from
1958 until1964. During this time, he was the Attorney-General in the Liberal/Country Party Coalition
government led by Prime Minister, Robert Menzies," and was responsible for many major reforms
including, amongst others, significant reforms to the law of marriage and divorce using a previously
unused constitutional power (s 51(xxi)), as well as trade practices reform and companies legislation-'
He later served as Minister for External Affairs.
In 1964, Barwick was appointed Chief Justice of the High Court. He became Australia's longest
serving Chief Justice, retiring in 1981. During this time, he delivered judgments in more than 1,000
1 Barwick, A Radical Tory: Garfield Barwick's Reflections & Recollections, 1995, Federation Press, Sydney.
2 George Winterton, 'Barwick, Garfield Edward John' in Tony Blackshield, Michael Caper & George Williams
(eds), The Oxford Companion to the High Court of Australia, (2001), Oxford University Press, South Melbourne,
pp.SG-57.
3 During Barwick's time at the Bar, the Federal Court of Australia, the Federal Magistrates Court, the Family
Court and other specialist courts and tribunals did not exist so the High Court would hear a greater range of
cases than it does today. Also, with the High Court sitting in Sydney or Melbourne in those times, the
appearances were dominated by barristers from the Sydney and Melbourne Bars respectively. Since the
opening of the High Court in Canberra in 1980, it now sits predominantly in Canberra but does have sitting
weeks in the major capital cities around Australia as well as conducting special leave applications by video link.
It should also be noted that when Barwick was at the Bar, there were fewer barristers at the Bar comparatively,
including Senior Counsel, and therefore less competition for work (the volume of work was also less).
4 This refers to both Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (High Court) and
Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1950] AC 235 (Privy Council).
s Australian Communist Party v Commonwealth (1951) 83 CLR 1.
6 Later Sir Robert Menzies.
7 Winterton, 'Barwick, Garfield Edward John', above n 2, pp.SG-57. See also Barwick, A Radical Tory: Garfield
Barwick's Reflections & Recollections, above n 1.
8
cases, many of which shaped the Australian Constitution and the Australian legal system generally.
In 1975, during his period as Chief Justice, Barwick was embroiled in controversy following the
constitutional advice he provided to Sir John Kerr, the then Governor-General, with respect to the
difficulties faced by the Whitlam Labor Government in obtaining supply.•
Barwick's career can be neatly divicfed into three stages: barrister, politician and judge.'
This thesis focuses solely on Barwick's career as a barrister up to and including his appearance in the
Communist Party Case. It was during this time that he established his reputation as one of Australia's
greatest appellate advocates.
The fundamental question which this thesis aims to answer is: whether Sir Garfield Barwick's
reputation as one of Australia's greatest appellate advocates, especially in constitutional law cases,
was justified.
The approach and methodology that will be developed to answer this question are outlined in the
next section.
1.1 Approach and Methodology
To address this question will require an examination of the elements of effective appellate advocacy
in terms of the ideal and the reality and an examination of Barwick's advocacy.
The starting point is that Barwick was, as far as is known, universally regarded as one of Australia's
greatest appellate advocates.10 The two major constitutional law cases in which Barwick appeared
were the Bank Nationalisation Case (both in the High Court and the Privy Council) and the
Communist Party Case. Both will be examined in this thesis. The focus in this thesis will be on
Barwick's advocacy in constitutional cases, given the paucity of material available on his advocacy in
other cases, and the fact that constitutional law cases are conducted before a multi-member court.
To determine whether Barwick's reputation as a great appellate advocate was justified, it is
necessary to establish a framework through which to conduct such an assessment. The framework
or methodology that will be established is the result of a critical exploration of the elements and
8 Barwick, A Radical Tory: Garfield Barwick's Reflections & Recollections, above n 1; David Marr, Barwick: The
Classic Biography of a Man of Power, (1992). Allen & Unwin Pty Limited, North Sydney. A brief biographical
account of the life of Sir Garfield Barwick can be found in Winterton, 'Barwick, Garfield Edward John', above n
2, pp.56-57.
9 Former Justice Michael Kirby recalls that he once heard Barwick describe his life as divisible, almost neatly
into four different phases-the barrister, the politician, the minister and the judge: see Jocelynne A. Scutt (ed),
Lionel Murphy: A Radical Judge, (1987), McCulloch Publishing Pty Ltd, Melbourne, p.7 (Foreword by Michael
Kirby, 17 March 1987).