by Antonio Buti
Tom Gray had a natural aptitude for science. One day, in Year Eleven, he came home from school and announced that he wanted to study medicine. However, he was to change his mind as he observed his older brother John’s agreeable lifestyle studying law. John had selected his course by throwing a dart at a university syllabus pinned to a dartboard, and it seemed to have worked out well for him. He was going to country races on Wednesdays, playing poker on another night and partying often, which was sufficient incentive for Tom to choose law over medicine. John Gray would go on to establish the legal aid service in South Australia, becoming the first legal aid solicitor in that state. Their sister became a physiotherapist in Queensland, working with children with disabilities and marrying a member of a well-established Brisbane legal family.
True to his form at high school, Tom did not extend himself in his first year of law school at the University of Adelaide in 1963. But he did well enough at partying. He must have had plenty of like-minded fellow students: the dean of the school held the opinion that Gray’s graduating year was the worst class he had witnessed. In spite of this unflattering assessment, Gray’s cohort was to produce many Queen’s Counsel and judges. Gray went on to do honours, one of only three from his year to do so, the others being John Mansfield, who became a Federal Court judge, and Nick Dyki, who practised law before heading to the corporate world.
On graduating at the end of 1968, Gray was accepted to read law at Gonville and Caius College at Cambridge University, and was also offered articles by the Adelaide firm Genders, Wilson and Bray. The thought of getting straight into court work as a junior litigator won out, and he would stay with the firm until the end of 1981. Not long after Gray joined, two of the firm’s partners, Dr John Bray and Andrew Wilson, were appointed as judges, with Bray going on to be a long-serving Chief Justice of the South Australian Supreme Court. The firm had a large litigation practice, handling considerable civil work before the Supreme Court. So Gray was blooded early on in his career into litigation work, and he loved it. He was also very good at it: incisive, analytical, quick on his feet and always well prepared.
By 1982 Gray was ready to branch out on his own, going to the independent bar of Adelaide. It was to be expected that a natural advocate like Gray would go to the bar, where his practice could widen from that offered in-house at Genders, Wilson and Bray. His talents and work ethic shone through and he was elevated to silk, becoming a Queen’s Counsel in 1984 at the age of only thirty-eight. During his time at the bar, Gray appeared in many cases in the Northern Territory. These appearances sharpened his focus on the recommendations of the Royal Commission into Aboriginal Deaths in Custody when dealing with Aboriginal parties in cases before the courts.
He clearly made an impression on young counsel who followed him at the bar. At a special sitting of the Supreme Court on 25 February 2016 to mark the retirement of Justice Gray, Chief Justice Kourakis would speak of his reputation as a fierce litigator. But it was his capacity to seize upon innovative points to develop his legal argument that inspired young advocates, Chris Kourakis among them, who were to follow him. The Chief Justice would recall, ‘As I ploughed through the state reports looking for legal arguments to improve the factually impoverished cases I often ran, I noticed that the high-flying corporate silk of the eighties had successfully taken innovative points in many cases in my areas of practice, both before and after he had taken silk. That gave me and, I am sure, others some heart in running what are probably best described as the marginal cases which are often left in the hands of young practitioners.’28
Another of his colleagues would later call up the iconic South Australian contribution to Australian Rules football, the checkside punt, as a metaphor to define Justice Gray’s ability to find an innovative and enterprising way to make a legal point when opponents had blocked a direct route to that goal.29 For those unfamiliar with Australian Rules, this kick can be described as dropping the egg-shaped football onto the boot in such a fashion as to be able to kick goals around corners. As a young man playing football Tom Gray honed his skills with the checkside punt. During his time in law he also kicked a lot of goals, through intellectual agility and discursive originality.
In late 1999 South Australian Attorney-General the Honourable Kenneth Griffin offered Gray QC a commission to the highest court in the state. It was an honour, which Gray accepted, though with some apprehension. He had a vibrant practice at the bar and it was a wrench to leave it. But, aged in his early fifties, if ever he was to go to the bench, this was the time, while he still had the drive and energy to succeed. He reasoned that a well-planned career would embrace fifteen years as a junior, followed by fifteen years as a silk, and culminate in fifteen years on the bench. Moreover, there was the issue of fatigue at the bar. Gray observed that many barristers over the age of sixty seemed tired. They appeared to rely too heavily on their juniors in preparing for their hearings. So, although it was difficult to leave the bar, he knew that it was now or never.
Now, in 2004, five years into his judicial appointment, he sits here in the comfort of his judge’s chambers, surrounded by bound legal decisions and legal textbooks, and ponders what appears to be the overly complex statement of claims for Bruce Trevorrow. He recalls some of the cases in which he has acted for Aboriginal clients and where as a judge he has had to decide on the fate of Aboriginal plaintiffs and defendants. Just one year earlier, he had brought down a significant judgment in a case with an Aboriginal defendant, Mr Scobie, a traditional Pitjantjatjara man who had lived between Port Augusta, Coober Pedy and the Anangu Pitjantjatjara lands. Justice Gray decided it was important to hear from the community from which the defendant came. So, for the first time ever, the Supreme Court heard a case in the regions, at Fregon on the Anangu Pitjantjatjara lands.30 The case was a Crown application against Scobie for preventive detention on the grounds of tendencies to paedophilia, particularly when under the influence of alcohol.31 Scobie had acquired a brain injury from sniffing petrol and had drug and alcohol addictions.
Conscious of the recommendations contained in the report of the Royal Commission into Aboriginal Deaths in Custody, Gray was keen to develop a program to address the ‘interests of community protection and Mr Scobie’s rehabilitation’. The case was before the court for more than two years. At times Justice Gray was critical of the services offered to Scobie, which he thought often failed to comply with the Royal Commission recommendations. He thought Scobie ‘was overlooked by a system designed for non-Indigenous offenders’. He wanted to change that. So, through discussions with the Director of the Prisons Department, and with the cooperation of community elders, he helped implement a program that allowed Scobie to be returned to his local community. Community elders assured the judge that Scobie would ‘obey the blackfellas’ way and the white man’s law’.32 Years later, at the special sitting of the Supreme Court to mark his retirement, Justice Gray would describe this as ‘to my mind truly … restorative justice’.
Justice Gray is enthusiastic about the concept and theory of restorative justice, which seeks to establish procedures and programs that aim to repair the injuries caused by a wrong, and assist the victim, the perpetrator and their communities to find lasting solutions to complex issues and conflict. The Scobie case was a reflection of his determination to take seriously the Royal Commission report and recommendations. He saw Scobie as an opportunity to turn the concept of restorative justice into action.33 With his bold judgment, Gray could serve both justice and the need to protect society, and help to reduce Aboriginal incarceration rates. While he understands how important Aboriginal traditions are and he will respect them, this is not a judge who can be swayed by emotive pleading, unsupported by facts and authoritative legal argument. His actions in the Scobie judgment are testament to that.
Reflective interlude over, Gray returns to Bruce’s file. This case is different: a Stolen Generations case, a first for him. The statement of claim asserts ‘that the defendant through its instrumentalitie
s acted illegally, improperly and in breach of duty of care’. It pleads a number of causes of action—misfeasance in public office, wrongful imprisonment, breach of fiduciary duty and breach of a duty of care—as well as claims of denials of procedural fairness. The State of South Australia denies there had been a denial of procedural fairness or that the pleadings in relation to the general practice of the state instrumentalities at the time of Bruce’s removal have any relevance to the plaintiff’s claim. The State seeks orders from the court to strike out these paragraphs of the lengthy statement of claim.
Memories of Tom Gray’s childhood intrude again. How different his childhood had been from that of Bruce Trevorrow. Bruce, taken away from his parents at such a young age, having troubles at school, returned to his mother without preparation, moved from one institution to another, lapsing into petty crime. Young Tom Gray, living a comfortable and secure life, surrounded by loving parents and siblings, breezing through school, enjoying a trouble-free childhood. He had the childhood that should be everyone’s birthright, for Indigenous children no less than for others. When he was at university, he recalls, Aboriginal issues did not reach into consciousness sufficiently even to be thought of as distracting. Yes, the 1967 referendum passed while he was at law school. But in the afterglow of that success, very few stopped to ask whether it did actually resolve entrenched inequality. That reality revealed itself to him directly only when he went to the bar and then to the bench. This is his take on neutrality. Paternalism leads to pity. Pity without purpose leads nowhere. It does not win court cases. Stay on the issue, find the law and make sure it works for all.
Justice Gray holds a number of hearings over various matters dealing with the statement of claim, and on 12 November 2004 brings down his decision dismissing the State’s appeal to strike out parts of it.34 He especially notes that the pleading that Bruce’s removal from his family was general practice at that time ‘has been the subject of extensive particularity’, with Bruce’s legal team having to rely on the documentary evidence the State provided them. The matter of what documentation Bruce’s legal team can rely on is to become a major issue as Richardson and her counsel seek to move the case towards trial. Justice Gray also is determined to move the matter forward. In this, his determination is to be tested.
Chapter 12
THE BARRISTERS
Bruce knows vaguely what is going on in Adelaide. Joanna Richardson calls every once in a while to tell him, but all this legal manoeuvring doesn’t mean much to him. They took him away from his mum and dad, from his family; they have wrecked his health, his life. They know it. He is right to sue them. The court must see it. So why can’t they just get on with the trial? Why is the state government still arguing with him?
Justice Gray wants what Bruce wants: to get on with it. But he knows that the State will vigorously defend the claim. Admit it owes Bruce compensation and it may open a floodgate through which a torrent of similar claims could rush. The State’s right, and indeed its duty to the citizens of South Australia, is to prevent such a flood. Justice Gray’s obligation is to give it the same right as the court extends to Bruce—the right to argue its case in the knowledge of all relevant facts. He must ensure that neither party inhibits the process by denying the other party access to material to which they are entitled. Nor must the court grant a party access to material that legal privilege ought to protect. In an adversarial trial, there will always be such legal manoeuvring. It is a necessary safeguard to justice.
Nevertheless, Gray is keen to keep the pre-trial process moving forward as best he can. At a directions hearing on 1 April 2005, he suggests that before further directions hearings, the parties jointly review files under contention, to which the State has referred in an earlier affidavit. Bruce’s legal team, of course, would have to comply with a confidentiality agreement. Richardson can’t hide her impatience. Since 2003, when the State last filed its updated List of Documents, she has been trying to access more documents, only to have the Crown Solicitor’s Office frustrate the discovery process.
The judge can understand her impatience. However, he has his own constraints. No conscientious judge wants their judgment to finish up in the appeals court because they made an error of law. It is not just a matter of professional pride, it also delays the dispensing of justice. Trite though it may be, the legal truism that justice delayed is justice denied does have consequences for those whose lives are on hold while the appeals process runs its course. Bruce’s life has been on hold for nearly fifty years.
Richardson is feeling pressure. She knows that with every delay, the risk increases that those who can testify to events of fifty years ago will no longer be available. This has happened with Martha Davies. In early June 2004, she applied to have Martha, then eighty-five years old, give evidence in court before the trial. Martha was suffering from many serious medical conditions and time was running out for her to be capable to give evidence. An order was made that Richardson provide an affidavit of Martha’s proposed evidence; however, her doctor decided that she was now too impaired to give reliable testimony. She has long-term memory loss and has suffered a decline in her mental function due to her age and medical condition, including stroke and circulatory impairment. To Richardson’s dismay, Martha, who had been such a significant part of Bruce’s life, is no longer available.
Losing Martha is not the first of her disappointments and it will not be the last. After withdrawing permission for the ALRM to access documents held at the State Records office, the State is now seeking to claim legal professional privilege over some documents that Richardson has already pleaded into issue, which would mean the court could not consider them. This could be a major setback to Bruce. Not only do these documents go to the substance of his case against the State, they also helped Richardson seek, and win, an extension of time to amend the statement of claim. Now, realising the increased importance of documentary evidence of events that happened so long ago, the State is playing tough. Richardson claims that, by giving her access to the records, the relevant Department officer had waived privilege and she is now free to use the information she obtained to build her case. She has not obtained approval through trickery, she says, because there was no current or anticipated litigation at the time.
Many of those involved in events fifty years ago are no longer available. Some are dead; others are too old or infirm to testify. Without access to relevant documents, Bruce’s team faces a challenge to mount a cogent legal argument. As the case edges closer to trial, Justice Gray, too, faces challenges in deciding what documentation to admit.
It is with enormous relief that Richardson is able to welcome on board her legal team Julian Burnside QC. Burnside, a highly credentialled QC from the Melbourne Bar, is an especially important catch, and it has not been easy for Richardson to win him over. He has a very high profile that extends beyond the legal profession. In 2004 the National Trust of Australia elected him as a Living National Treasure, and he is well known for his patronage of the arts and for his advocacy of refugee rights. Born in 1949 and educated at the prestigious Melbourne Grammar School, he studied law at Monash University and joined the Melbourne Bar in 1976, taking silk in 1989. Until more recent times he has specialised in commercial law and has attracted almost as much public recognition as a couple of his more notable clients, Alan Bond and Rose Porteous in her bitter dispute with Gina Rinehart over the estate of Rinehart’s father, Lang Hancock. In Burnside’s words, they represented ‘the big end of town’.
Because of these associations, it came as something of a surprise when, in 1998, he agreed to act for the Maritime Union in its industrial relations battle with Patrick Stevedores, which was determined to break the industrial might of the union on the waterfront. The issue went to the High Court of Australia, with the union successful on most of its arguments. Burnside insists that the legal issues, not the political dimensions, were what attracted him to the case in the first instance. Nevertheless, the case convinced him of the i
mportance of union representation for industrial fairness and justice in the workplace. Richardson and Bruce are to benefit from Burnside’s enlivened need to become more involved in human rights work. Yet his involvement in Bruce’s case seemed unlikely at first.
In 2000 Richardson had contacted Burnside to see if he would give a legal opinion on the merits of Bruce’s case, which she needed to support her application for Commonwealth funding. He declined, telling her he was too busy.35 His advocacy for refugees and criticism of the mandatory detention of asylum seekers arriving in Australia had led him to establish, with his wife, artist Kate Durham, Spare Rooms for Refugees and Spare Lawyers for Refugees, providing free accommodation and free legal representation for refugees in Australia. Burnside and his wife have been housing refugees in their home for over fifteen years. Nevertheless, Burnside needs to continue his commercial litigation—his ‘bread and butter’ work—to be able to continue his human rights work, which he often takes on at reduced fees or pro bono.
In the meantime, Richardson has seen barristers come and go. It seemed that if a barrister sat in the red chair in Richardson’s ALRM office and agreed to be involved in the Trevorrow case, there was a good chance that promotion was on its way. Robyn Layton, the first counsel Richardson briefed, left to take up an appointment to the Supreme Court of South Australia. Andrew Collett was the next to sit in that red chair. He stayed only until he took on the role of counsel assisting an inquiry into the abuse of children in state care in South Australia. Gordon Barrett QC came on board but only briefly, as he was appointed to the District Court of South Australia. Next was Sydney Tilmouth QC, with whom Richardson had worked on the Gray case. He stayed only a bit longer because he, too, gained appointment to the District Court. In parting, however, it was he who had suggested she contact Burnside. This had encouraged her to persevere with Burnside because she knew he had a high opinion of his Adelaide colleague. That Tilmouth thought the Trevorrow case had merit might have just tipped the balance in Richardson’s favour.
