The Honourable Peter Applegarth AM has been a solicitor, barrister, academic, Queensland Law Reform Commission chair and Supreme Court judge.
Throughout his distinguished career, he’s watched the profession evolve, but throughout he has adhered to an important mantra: stop and think.
He explains why in this month’s edition of The Callover podcast.
What drew you to the law?
Well, I think probably at high school, I was drawn to it because its intellectual attraction. It personally fitted my personality, and there was a social aspect. Intellectually, I was doing maths and science, modern history, and I saw law – the little that I knew about it because I didn’t know any lawyers – as a nice combination between a kind of science, a rules-based discipline and the humanities.
My heroes at the time – this is in the early ’70s – had been lawyers, the reforming politicians. Prime Minister Whitlam (and) Premier Don Dunstan in South Australia were making enormous changes to society for the better.
You were appointed to the Supreme Court in 2008 and served on the bench for 16 years. What were the biggest changes you witnessed within the courts throughout your time as a judge?
Well, I guess not only as a judge, but over my longer career as a lawyer and a judge. I think the biggest of those changes is the loss of advocacy. When I started, at the bar and for a long time when I was at the bar, written submissions were tiny; people engaged in oral advocacy.
Judges were taken through the cases, and there was a lot more oral advocacy and less written advocacy. I wrote a paper in 2011 called The Rise of Documents and the Disappearance of Witnesses; with the advent of technology, we have so many documents to review. And it’s just mind numbing for junior lawyers to have to do document review, even with the assistance of artificial intelligence.
I think the second one would be the loss of court craft, because with the rise of mediation, many barristers and solicitor advocates don’t go to court much, and they don’t have the skills to properly examine witnesses or cross-examine. That’s not a criticism, but it’s just a fact. A fact of life.
And I guess another change is the loss of the generalist advocate. People like Cedric Hampson could run a criminal trial, do criminal appeals, do everything. And he was just one of many. I think over time, both in the solicitors’ branch and at the bar, there’s been increasing specialisation.
I think the final and probably the most important change is the greater role that women play in the profession, and the greater diversity of the profession. I when I started in law, it was very much an Anglo-Saxon, male domain. And there’s been enormous changes for the better in Queensland. We’ve got a good record of appointing women judges and the record shows we’ve had outstanding women judges. I’ve been really fortunate to be in their company for 16 years as a judge.
How can we check ourselves sort of as we’re going through our daily work?
Well, I think the mantra is stop and think, because we’re under a lot of time pressure, whether you’re doing high-end, commercial work, multi-billion-dollar litigation, we don’t have a lot of time to think. And if you’re doing legal aid work, you’ve got a whole lot of clients rattling through, and you’ve only got a little time to give them advice.
So it’s really just going back in, interrupting that intuitive decision making, stopping and thinking, what’s missing here? Does this narrative make sense? Is it supported by the contemporaneous documents? How can it be? And so when we see decision makers and we read judge’s reasons, you see that process.
The judge has to give reasons as to why they accept or don’t accept certain bodies of evidence. And that’s the deliberative process, that the judge is taking days or weeks to write the judgment. And similarly, if you’ve got to give a quick advice, oral or in writing, you don’t have all that time to deliberate. But that’s why it’s not a bad thing, even under time pressure, to just stop and think.
What now is the role of the written submission? And how can advocates best use them to complement their oral submissions?
Apart from identifying the issues, the principles should be structured in a way that they say to the judge ‘these are the findings of fact that I’d like you to make. For these reasons, these are the orders I’d like you to make’.
And, good written submissions help judges to make decisions in busy courts. But in longer cases that are reserved, they’re also essential. Some submissions are just far too long and poorly organised. And there’s just a huge burden and there’s something to be said for having page limits, as we do in the Court of Appeal, High Court and the like.
How do you do that when you think you’re on a losing case?
Well, I think whether you think you’re on a winner or you think you’re on a loser, you have to apply the same techniques of persuasion and … sounding like you care.
But you don’t overdo it with inflammatory, overblown rhetoric … there’s a kind of restraint that has to be exercised. But having a bit of feeling, modulating the voice, speed of delivery, emphasising key points – all these are part of advocacy, and I think from my experience, over decades, there’s not one form of good advocate.
Good advocates come in all shapes and sizes. Some people go on like they’re some orator from ancient Rome or something. Some have a conversational style. Chief Justice Gageler I had the benefit of seeing in the High Court a few times as an advocate. He had a rather conversational style, a suit, his personality, and the High court judges respected him. He didn’t raise his voice. He was himself.
And I think I’d advise any advocates, young or old – I wasn’t a great advocate so I’m not saying this based on my experience as an advocate, I’m saying this based on my experience as a consumer of advocacy and a witness of advocacy. – you have to, of course, develop skills that are based on people who are good, good mentors, good advocates you’ve seen.
You have to comply with rules and practices and procedures and ethics, but within those constraints, you shouldn’t just be copying someone who you saw who’s got a big, booming voice.
Looking back, is there anything you wish you’d known about decision making before becoming a judge?
Well, just about everything, I guess. Yeah, I think I, like everyone, thought of judges as just purely rational decision-making machines. They’re not, they’re humans. We’re all human, and we fall into cognitive errors.
I can’t say that I necessarily practised what I preached, but when you’re tired, you’re just bound to make poor decisions. So we just have to understand that we have limited mental capacity, and there’s nothing wrong with stopping as a judge, going outside, refreshing, even for a couple of minutes.
And that’s just part of the bigger mantra, which is ‘stop and think’. And that applies, I think, to everyone.
What is one piece of advice you would give to your younger self as he commenced his legal career?
Well, there’s many pieces of advice. I think one is embed exercise, even walking, in your daily routine. I never really did that. Be more engaged with friends and family. You just have to switch off. I never developed that technique.
I think another thing is try to avoid imposter syndrome. I’m guilty of this. I’ve throughout my decades thought “I’m not worthy. What am I doing here? How could I be senior counsel? Oh, my God, they’ve made me a judge”.
People should think, objectively, “There’s no reason why I shouldn’t be where I am. Even though there are people a lot better than me in this area, I’m not that bad”. But we tend to think “I’m out of my depth here. What am I doing here? I’m going to be found out for being wanting”.
Listen to this episode of The Callover.
Share this article