Monday, July 4, 2011

Some moments from the life of Roddy Meagher - RIP

3 July 2011 marked the close of the colourful life of Roderick Pitt Meagher AO QC, universally known as “Roddy”, former justice of the NSW Court of Appeal, legal scholar best-known for the leading text on equity jurisprudence outside of England (and perhaps within), avid collector of art, and benefactor to the arts.

What follows is a collection of favourite episodes from his life along with a number of quotes, and while one would not necessarily endorse the sentiment in them all, one recognises the beauty and wit with which they are expressed:

A recently-retired Federal Court judge, while still at the junior bar, once sought advice from Meagher, asking: ““My gown is looking a bit tired but it still has some life in it.  I was wondering whether I should get a silk gown now, on the basis that I will be able to wear one of those soon - or would that be a bit presumptuous?” to which Meagher reportedly replied:  “If I were you … I would buy two more of those polyester ones”.

During the course of a criminal trial in 1997 John Laws named the accused, said that he was “absolute scum” and was guilty of the murder with which he was charged.  In an appeal involving the penalty imposed on Laws for the obvious contempt of court Meagher, in dissent, said:

“[In respect of Laws] the fine should likewise be $250,000. To fine him $20,000 (or even $50,000) is ludicrous. It is the equivalent of a slap on the wrist. It would operate as a deterrent neither to him nor to any one else. It would not hurt him. It is about the amount he would spend on a small cocktail party: it is a cost he would not feel. It would not pay for a fraction of the costs of the aborting of one trial and recommencing another. I regret to have to say so in plain language, but in my view it would be a reproach to the Court and an insult to the public. It would be a reproach to the Court, because it is the Court’s duty to make appropriate, and not risible, orders. It would be an insult to the public, because the public would think that if you are rich enough and powerful enough you can get away with anything.”

Meagher was once trying to hide an expensive painting from his wife and gave it to Nick Carson to look after.  The painting remained with Carson for years and eventually Carson resented having to look after it indefinitely.  In the end Carson presented the painting to Meagher as a birthday present, meaning not only that Meagher could not say a thing about it but also that Meagher was henpecked by his wife into buying a very nice piece of art for Carson’s next birthday.

Meagher was fond of being unaware of outer suburbs of Sydney.  In one case he described land as being “situated at Bossley Park (wherever that is).”  This prompted Keith Mason, who agreed with Meagher’s judgment, to quip:

“I have had the benefit of reading in draft the reasons of Meagher JA. 

“I also have the benefit of having access to a street directory. Accordingly, I do not share his Honour’s customary doubts about the location of well-known Sydney suburbs lying to the west of Darling Point which sit cheek by jowl with his Honour’s customary lack of doubts about most other matters. A useful resource for those who need to locate Bossley Park is By clicking on “map maker” one can find easy ways of getting from, say Darling Point to that suburb. (–_nsw_bossley%20park_nsw.) [URLs in the original judgment]

However, Meagher was surely having a laugh when in another case he referred to a building as being “situated somewhere in Caringbah, a suburb of Sydney apparently in the Manly area.”

One appeal involved a plaintiff who was working at premises in “North Ryde (which we were informed is a suburb of Sydney)”.  In that case he succinctly described his conclusion that the plaintiff should have succeeded in his claim before Master Harrison in the following terms:

“Both defendants … argued strenuously that neither of them were in any way negligent, and indeed that neither owed Mr Wilke any duty. The Master acceded to their submissions. She held that Mr Wilke had nobody but himself to blame for his misfortune. I must say that, at first blanch, this strikes me as more than a little odd. For a manager (to use a neutral term) to expect a workman to do his job on a narrow beam twelve feet above a concrete floor in a hurry and for extended hours without having some obligation to see that the workman is in some way protected from falling is to indulge in an extreme form of Gradgrindism.”

The reference to Gradgrindism is of course a reference to the notorious headmaster in Dickens’ Hard Times who named his children after utilitarians and was concerned only with filling his pupils with hard, cold, facts but who becomes emotionally-aware when his daughter has an emotional breakdown.

The use of obscure language and literary references has been seen by some as an affectation, but as a classical scholar it came naturally to him.  One can never forget Meagher’s defence of the Macedonians:

“The trial judge found that Mr Videski exaggerated when he gave his evidence. On this slender, and one would have thought unexceptionable observation, his Honour develops an elaborate, and distinctly xenophobic, rodomontade. His Honour says that Mr Videski only exaggerated because he was a Macedonian, all Macedonians are untrustworthy exaggerators, in this respect they do not resemble Anglo Saxons, and judges ought be reeducated unless they appreciate these truths. One cannot permit such sentiments to be uttered without protest.

“Alexander the Great was a Macedonian, and Arrian’s Life of him emphasized his honesty and taciturnity. There was no evidence before the Court that his epigoni have changed. We cannot assume that they have. On the face of it they are not the only people who have exaggerated when giving testimony. Occasionally people of undoubted Anglo Saxon stock do so. I should have thought that an unfortunate propensity to deviate from the paths of honesty is something which occurs regardless of ethnicity. Judges are capable of dealing with it wherever it occurs, and from whatever source.

“It would be unfortunate if his Honour were permitted to utter, with the apparent approval of his brethren, sentiments so markedly at variance with the United Nations’ Optional Protocol on Human Rights, not to mention Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.”

This prompted Kirby (then President of the NSW Court of Appeal) to respond:

“In our multicultural society it is imperative that judicial officers should avoid expecting from people of different cultural traditions the same emotional imperatives that have, until now, tended to influence Australian values. For all I know, the behaviour in court of this worker, which seems to have struck her Honour as “exaggerated” or “distorted”, would be perfectly normal for a claimant with back pain appearing in a Macedonian courtroom. Perhaps there it would be considered perfectly natural for a person, facing his or her decision maker, to lay emphasis upon the matters of which that person is complaining.

“This is not (as Meagher JA would have it) to “deviate from the paths of honesty . It is to make discomfort known and not to mask or disguise it because that is thought strategically wise in an Australian courtroom. Perhaps in Macedonia the brave understatement of one’s own case would be regarded as a bizarre psychological manipulation of the contra suggestible kind which one would only expect from foreigners. This is speculation. I only mention it to emphasise that we, the Australian judges of today, must be on our guard against the imposition of behavioural stereotypes.

“I reject utterly the contention that this is itself a stereotype. Human conduct is infinitely variable. But it is certainly influenced by cultural norms. What is in issue here is not the honesty of people of Macedonian origin, like the appellant, who may or may not be the epigoni of Alexander the Great. It is the awareness on the part of Australian judges that people from different cultures may not immediately succumb to the heroic norms of our culture when they come into our courtrooms. … To blow this up, as Meagher JA attempts, to a suggested xenophobia and even racial discrimination on my part is self evidently absurd. However, I shall allow his Honour’s comments to pass taking compensatory comfort from the new found interest of Meagher JA in the international instruments of human rights and their application to Australian domestic law.”

In response to the question posed by “Who or what do you consider overrated”, as well as correcting Richard Ackland’s grammatical shortcomings, Meagher responded “Kirby J”.

Though bound by the pronouncements of the High Court, Meagher did not hesitate to indicate his disagreement.  Of a famous footnote in the writings of Sir Frederick Jordan on the effect in equity of the assignment of property Meagher wrote:

“Great as is the homage we all owe to Sir Frederick Jordan, one must state that the footnote is nonsense. It has, of course, been approved by the High Court on about four occasions ... but that does not convert it into sense.”

In opposition to his love of language and the arts was his distrust of sporting endeavours.:

“Whilst all reasonable people know that any form of physical activity is both unpleasant and dangerous, and probably unhealthy as well; and whilst sport, which is communal physical activity, suffers the added feature of exposing its participants to the perils of tribal barbarism; nonetheless the law has never regarded the playing of sport as contrary to public policy or even unreasonable.”

In giving the speech for the NSW Bar on the occasion of Meagher’s retirement from the NSW Court of Appeal Ian Harrison said:

“It is a great sadness for all of us that the late Justice John Lehane is not here to see you off. Justice Lehane was one of nature’s gentlemen with a delightful disposition. The only time he ever confided in me about things that troubled him was when he confessed that writing a book with your Honour had sent his hair prematurely white. That wasn’t as much a concern to him, however, as the fact that your Honour’s hair stayed youthfully brown. Justice Beazley told me that she thinks the colour of your hair could now best be described as Dorian Grey!”

Meagher once pithily noted that a decision of the NSW Industrial Commission was “clearly wrong. Yet, they had jurisdiction to err.”  Even more pithily, he once said in an ex tempore judgment:  “Mr Hall has said all that could possibly be said on behalf of the appellant, and more.”  He did not appreciate the ponderous submission of counsel, once saying:  “Mr Harrison, I am going to sleep now and I don’t want you to be here when I wake up.” *

There will be more to come in the coming days.

* Since originally posting, I am reminded that Ian Harrison admitted during his own swearing-in speech that he had made this story up.  Rather than delete it, I have left it in, if only because it has a ring of truth about it.

No comments:

Post a Comment