Speech by the President to the St Thomas More Society

President’s Address to the St Thomas More Society

By Judge Gerard Phillips

President, Personal Injury Commission of New South Wales

24 August 2023

Life in the Law

I am delighted to be here tonight, see some old friends and meet some new ones.

I thank Michael McAuley and the Society for their kind invitation for me to speak to you all here tonight on the topic of Life in the Law.  And yes, you can have both a life and work in the law.

I am shortly coming up on 35 years in the law, firstly as a solicitor and now as a judge. So, my remarks come from my observations of the practice of the law and the people I have worked with, other solicitors, barristers, judges and most importantly clients. I am sure these observations are not universally true of life in the law, but they do reflect my experience.

To begin, all of us who work in the law must acknowledge what a tremendous privilege we have been given. It is a privilege to practise law and that should not be taken for granted. You are part of an honourable profession and your behaviour in everything you do must reflect that status. With that privilege comes great responsibility – to your client, your colleagues and above all to the Court. Remember, being entrusted with a client’s legal problem is a significant responsibility.

For me that starts with humility, which is one of the building blocks of character. St Augustine said it best when he wrote “Lay first the foundation of humility... the higher your structure is to be, the deeper must be its foundations.”

If you intend having a long career in the law these are the types of things you need to think about. The profession in this city is in my view small, whatever name and reputation you create for yourself will get known. I will give you an example – always keep your word to another practitioner. This is a fundamental rule you cannot break because trust, once lost, cannot be regained. Whatever advantage you might gain in one matter by not observing this rule will never be worth it. Remember you will always at some stage need a favour or indulgence from an opponent. You are less likely to be granted that indulgence if your behaviour does not warrant it. Bad behaviour will not go unnoticed or unpunished.

Same goes when you are appearing in the courts or tribunals. If you say you will do something or are ordered to do something – do it. Nothing irks a Judge more than a long winded explanation about why a case is not ready. Judges have long memories for these types of things.

I would draw your attention to a speech given by the Chief Justice of NSW, The Hon Justice Andrew Bell SC at an admission ceremony in Newcastle earlier this year. He said this "I wish to emphasise the importance of civility. Aspects of the law, especially if you are involved in the litigation side of practice are confrontational. It is essential that you maintain your detachment, balance and good humour, remembering at all times that you are members of a profession and not a business. “I wish to associate myself with these remarks. They should be the guiding star for all lawyers.

In this regard, I note the presence of a number of young lawyers here tonight. I would say this to you, your ethics are not up for grabs. You should be wary of any senior solicitor or barrister who encourages you to act contrary to the principles I am talking about tonight. Your paramount duty is to the Court – not the client or the commercial interest of the client or the  firm you work for.   The fact that you are at a St Thomas More event tells me that you are already interested in the ethical imperative and dimensions of legal practice and I think that is a wonderful thing. Don’t let that go during the years ahead. Acting ethically is actually acting in the best interests of your client.

Also observe practitioners who you think are good, that is good lawyers with high ethics. You cannot be a good lawyer without both. They may even be your opponents in cases.

Work out why they are good at what they do. Part will be the hard work they put in, but a lot will be how they conduct themselves which gives the client confidence and makes others trust them and their judgment. My experience was that if you ask someone in the law who is successful why that it so most people will tell you and be very generous with their time. When I became the national head of the employment practice group at K & L Gates I did just that. I had a coffee or a drink with the heads of what I thought were the best employment practices in the city. They were very generous with their time and were very encouraging. I could pick up the phone and ask them because I had developed a good relationship with them having practised in cases against their firms over the years. That advice was kind and indispensable.

I would also say this, be prepared to have a go at different things. Whether it is a different area of the law, or if you are a solicitor perhaps developing your advocacy skills. But have a go. But when you do this, you must be thoroughly prepared. As Sun Tzu said, “conquerors estimate in the temple before war begins”, they consider everything.  This you must do.

Years ago, in the late 1980s, I went to Hay in the far west of NSW to prosecute a group of shearers on behalf of the union.  What had they done? They had sheared sheep on a Sunday contrary to the Pastoral Industry Award, then a commonwealth industrial award. Now I was a solicitor and was appearing as the advocate. To say that the local magistrate was incredulous at this action would not give full faith and credit to what I assume he was thinking, which was probably “How in God’s name can this be against the law in 1989?” I reckon everybody sitting in the court thought the same thing.

But I had a good mentor at the firm who I bet had been in the same predicament before. I had prepared the prosecution but I had been warned to be ready to explain in as plain terms as I could why this offence existed. What was the wrong it was designed to deter. And not make it sound so technical that nobody could understand it. So, I led the Magistrate through it and after 5 minutes you could see he was getting interested. He didn’t like it but I had his attention. When I finished, he asked 2 questions, question 1, is it an offence, the answer YES and I then took him to the relevant provision that showed this. Very short , direct , confident response. Question 2, if this offence is proven why can’t I discharge the defendants under s 556A? (today’s s 10 dismissal). The answer sealed it - “Your Worship this is the defendant’s 3^rd offence on this very charge, they are well aware of their obligations in this regard.”

My opponent, a good fellow from the Bar who was not an industrial lawyer, asked for time to get instructions and an hour later I had a set of guilty pleas. My guess is his clients had not told him about the priors.  His clients had sat there and listened to what I had said and the Magistrate’s questions, probably reached the view the game was up and were ready to take some advice.

So, for me the lesson was this, have a go. The partner asked me would I do this, including the advocacy and I said yes. I was not ready, but was prepared to do what I needed to get ready. Two, when I stood up at the Bar table, I was prepared and was confident that on this arcane subject, I knew more about it than anyone in court that day. Preparation gives you confidence.

When I look back, if I had not be able not explain why the case was being brought, I would have quickly lost the bench and then the case. By “why” I do not mean which section of the award was alleged to have been breached, that’s the easy part. The “why” is “why” is this an offence, what behaviour is it aimed at deterring and why is a union prosecuting it?

After all the cases I did over the years I still remember that one, not because of the result, which was a very modest fine, but because of the whole experience and what it taught me. The big learning that day was be prepared, be confident in your ability, have a go, read the Bench and answer the Bench’s questions directly.

And it meant that the partner then trusted me to go out in the bush and prosecute various matters before the local magistrates. By gaining his trust my career advanced. And it was professionally very satisfying.

The other tip I would give you all is this. If you stick at the law and work diligently at it, you will get better and clients will want to use you. The very best marketing for work you can do is this, do the work you currently have as well as you can. This gets noticed.

I would also say this, the law is about people, whether they are the folks you work with or against, the clients, witnesses in cases, anyone. Learn how to work with others. Treat them how you would like to be treated. If you work in a firm you have to be able to work in a team environment. I always had a core group of barristers I briefed and I treated them well. They worked well with my team and clients. Their values or better still their virtues corresponded with mine which was very important. I never had an ethical issue with a barrister.  And I always made sure they got paid. Doing this meant that barristers liked getting briefs from me and the counsel I wanted to use thus made themselves available. This benefited my clients.

But I would read widely outside the law. It’s a good break from the discipline of the law but if you read good books, it will give you an insight and knowledge of life more generally that will help you out. I mean we all have to write literate advices that can be understood by non-lawyers. Reading widely can only benefit this core skill. Because bear in mind, in the law, language is everything. The ability to communicate clearly in the written word is critical. The ability to argue or better still, to persuade is critical. To do this you need to have a literate and wide vocabulary. You acquire this by reading.

But you have to have interests outside the law, it’s better to be a well-rounded person with some experience of other things. Don’t let your interests lapse or not keep up with your friends, the law will consume your life if you let it.

I must say I never imagined I would be a judge, very few solicitors are ever appointed to the bench. But it was the result of 30 years’ practice here, interstate and in the UK. I always said yes, I was prepared to have a go but also did the best I could do in each case. Lots of new skills to learn, judgement writing being but one.

So, you never know where the law will take you, but be ready.

The practice of the law as I said is a privilege but if you put the effort in, it can be very satisfying and can lead you to all sorts of interesting things. When I had the good fortune to be a partner at K & L Gates I served for a time on its global board, which meant I was exposed to how the law was practised in jurisdictions around the world but especially in the US.  It was a fascinating time and it made me a better informed lawyer.

Now as a Judge and the President of the Personal Injury Commission, I can put all that experience to work for the citizens of this state that are in need. We deal with disputes in workers compensation and motor accidents law. Being formed in the middle of a once in a century pandemic was probably not the best timing but we have completed the various foundational activities necessary to establish a new tribunal. Last year, (2022-2023) we finalised over 17,000 disputes across both Divisions which was a tremendous effort.

The renovation is completed. The rules and practice directions are working and we will soon be developing new ones dealing with page limits. The new IT platform has been very successfully launched in the motor accidents division and the feedback has been very good. Next year we will deploy it in the workers compensation division. Probably the best thing is we have had is a good run at operations free of pandemic restrictions and all our numbers are heading in the right direction. We have broken the back of the motor accident medical examination backlog, it was 4,658 odd, now it’s down in the 400s. We are now working on reducing waiting times for appointments. And this will improve over the next 6-9 months to land where we would like to see it.

I know a lot of you in the audience tonight practice in the Commission. Please bring the various principles and virtues I have discussed tonight along with you when you appear in the PIC. Be courteous to our staff and members. Be courteous, honest and firm with your opponents.  If you do this, you can expect to do well for your clients. (It also helps if the facts on your side too)

Good luck to you all and enjoy your evening.