News Archive

An important family law test case, Stanford v Stanford , was heard in the High Court in September last year. It concerned the powers of the Family Court to make orders distributing marital property following the death of one's spouse.

A notable aspect was that, of the various counsel appearing in the case, four (Michael Berry, Richard Hooker, Grant Donaldson and I) were or had been members of the Law School's teaching staff. Undoubtedly this two-way interchange presents an opportunity to bring specialist academic knowledge to bear on complex cases and to develop novel legal principles. In turn this provides collateral benefits for the teaching of Law at this University.

Appearance by faculty members in High Court litigation is by no means novel. In fact, I had appeared earlier in 2012 in another high-profile and somewhat controversial appeal involving a long-time Australian citizen and pensioner, Charles Zentai, in which the High Court ruled that Mr Zentai's extradition to Hungary for an alleged war crime in 1944 was unlawful.

My various associations with UWA extend back for more than half a century first to when I became a law student in 1960, and for me the advantages of combining teaching and practice were demonstrated by some of my early lecturers. These included Ronald Wilson QC, Francis Burt QC, John Wickham QC and John Toohey QC. They practised at the highest level of their profession but were able to impart with great clarity the principles of the subjects that they were teaching. All of them later achieved high judicial office.

When I became a full-time lecturer in 1974, the Chancellor of the University, Sir Laurence Jackson (also the Chief Justice of Western Australia) indicated that it would be preferable from the University's point of view if law staff who intended to practise should do so as barristers rather than consultants to a law firm. In that way members of the University staff who had special expertise in a particular subject could make it widely available, rather than confining it to a few privileged clients. Accordingly, I joined the Perth independent bar that year and have effectively remained a member since. Soon after, I found myself in the High Court in 1976 as junior to the State Solicitor General, and later High Court judge, Sir Ronald Wilson QC.

Following this, I appeared with a young Perth lawyer, Robert French, who was a part-time tutor in constitutional law. The younger French was forging for himself a formidable reputation at the bar and progressed rapidly to become a distinguished Federal Court judge, and in 2008, Chief Justice of the High Court of Australia. We appeared for a prisoner in Fremantle jail, Peter Wilsmore, challenging the right of the State to deprive him of his vote. Although unsuccessful, French's argument in the High Court marked him out as a "coming man".

Later cases in which I appeared include a challenge brought by one of my former students, Jim McGinty (who had won the Blackstone prize in constitutional law). With a fellow Opposition Member of State Parliament, Geoff Gallop, McGinty challenged the State electoral system which allowed great discrepancies between the values of votes in different electorates.  Another was the Native Title Act case in which I acted for a group of aboriginal plaintiffs. Notably, in that case another member of the law school staff, Professor Richard Bartlett addressed the High Court on his vast knowledge of comparative native title rights.

From all this, I draw several conclusions. First, combining academic teaching with practice allows one to understand law from both its theoretical and practical perspectives. Secondly and inevitably, practice as a "university" barrister means that one is usually briefed only in the most difficult and novel cases. Because of this on some occasions, opposing counsel have disparagingly sought to dismiss one's arguments as "purely academic". The perfect rejoinder to such claims was given by Sir Francis Burt CJ when he reproved counsel by saying: "Mr X, the argument might be academic but the question for the court is whether it is correct."

Finally, appearing in these cases has an ironic twist. Students attending my lectures do so with some expectation that, having been involved in a major test case, I must be able to authoritatively expound its main points and arguments. In many cases I have to confess that I am not able to do so as I am just as bemused and confused as my students by the Court's reasoning!