About David- by someone who knew him
It was a remarkable career. Before it, there had been nothing like it; because of it, High Court advocacy has forever changed.
A number of things came together to bring this about. The bits-and-pieces are easily picked out. The first was, of course, David Jackson’s superior skill as a lawyer advocate. But that should not be allowed to cloud the impact advantage of his sheer hard work. Then there was the length of David’s career – over 50 years, but length alone does not explain his dominance. His encyclopedic knowledge of the case law was obviously helpful, but it was never going to be enough if not coupled to his uncanny ability to unify ideas. And his advocacy: the pure, smooth, subtle advocacy. Now put it all together – everything was there. It seemed like all the necessary gifts had been given in one place, at one time, to one person.
It is true that there were and are other barristers like David and there are bound to be more barristers like David – that is the way of things. But those barristers will be rare, and they will only emerge because of David’s example.
Some background
David was born in 1941 in Ipswich – a seventh child1. Although he spent the second half of his life in Sydney, it is fair to say that he remained, at heart, a Queenslander.
Law was not David’s preferred career – in 1958 he graduated from Ashgrove College intending to enter officer training at RMC Duntroon, but was rejected due to defective eyesight.2
In 1960 David commenced Arts and Law at the University of Queensland3, focussing on political science in his Arts. In 1964 he graduated among the top of his law class.
An early important influence: While still at law school David was associate to Justice Harry Talbot Gibbs, then of the Supreme Court. This period of his life was obviously important, he spoke of it often.4 David was deeply influenced by Sir Harry’s unfailing politeness, stern calmness, and vast legal knowledge. It was a lifelong friendship; David delivered Sir Harry’s eulogy in 2005.
At the Queensland Bar: David went straight to the Bar, admitted in 1964. He read with Jim Dunn.5 It may come as a surprise to some that he started with crime, personal injury and divorce cases. Remarkably, his first case was for a coaccused in a serious sexual assault trial. His practice grew unusually quickly and became more commercially oriented.
He spoke favourably of only a few of the leading Brisbane counsel of that time: Gerard Brennan QC (the most gifted allround advocate lawyer, especially in crime – obviously superior) and Cedric Hampson QC (clever, inspiring, colourful). He spoke fondly of Charlie Sheahan QC with whom he had an especially close professional relationship, but in a manner suggesting he felt Charlie was a better advocate than lawyer. He disparaged several other leading barristers, excusing some as war veterans with drinking issues. Among his contemporaries he spoke highly of the abilities of Bill Pincus (an able but hard man), Bruce McPherson (a poor advocate but fine lawyer), Tony Fitzgerald, Glen Williams, and Geoff Davies. He always admired Naida Haxton – Queensland’s first female barrister.
Some observations on Queensland judges: Apart from Harry Gibbs, the only judge receiving high praise was Roslyn Philp (an intellectual man, would not have been out of place on the High Court). He respected others – Jim Douglas was mentioned in this respect. Some judges he liked but left him wondering: Chief Justice Charlie Wanstall (pleasant, but incapable of moving the Court toward modern practices) and Chief Justice Wally Campbell and Justice Ned Williams (both more interested in horse-racing than the law). Others he disliked: Chief Justice Bert Mack (poisonous, vicious, barely competent) and Justice Peter Connolly (comments not printable).
Taking silk: David was always ambitious and always in a hurry. He applied successfully for silk in 1976 aged only 34.
His practice boomed. He was briefed in all the big Queensland cases and inquiries (he claimed that the inquiry into sand mining on Fraser Island paid for a new home). Several of his cases ended up in the Privy Council and they were great memories for him – of the British judges, quirky practices, and – of course – dining at the Savoy Grill.
Constitutional law: Constitutional briefs came early and often. In the 1960s—70s the position of Solicitor-General in Queensland was usually held by a senior public servant in Crown Law and advice and court work farmed out to the private Bar. A single senior barrister informally discharged the role as a de facto S-G. From the early 1970s David was junior counsel, first led by Sir Arnold Bennett QC, later by Charlie Sheahan QC.6 By happy coincidence, Sheahan was called to the Bench at the same time David took silk and David took over Queensland’s constitutional work.
There was plenty of constitutional work coming out of Queensland. These were the days of Joh Bjelke-Petersen and Queensland was taking an aggressive position on State rights. The courts were filled with challenges by Queensland defending some (often hare-brained) political position pushed by Bjelke-Petersen – think about the Queen of Queensland case and Koowarta. At this time David formed some close and long-term friendships with the leading barristers from the other states – Maurice Byers (whom he called Boris Myers), Tom Hughes, Murray Gleeson, Michael McHugh, Daryl Dawson.
David spoke highly of the juniors he had in those Queensland days, but especially Paul de Jersey, Margaret White, Patrick Keane and Susan Kiefel – each of whom, as David put it, went on to take a ‘some position in the public service’.
A diversion – the ACT Supreme Court: Many will know David was briefly a judge of the Federal Court, but most will not know this was only a sequel to an earlier flirtation with a judicial appointment.
In 1985 Sir Richard Blackburn announced he would soon retire from the Supreme Court of the Australian Capital Territory. The reputation of that Court under Blackburn was high. By then David was suffering a case of the barrister blues. At only 44 years he felt as though he had already done most of those things he wanted to do as a barrister and he and Monica had become unsatisfied with the way things were in Queensland. He was looking for new challenges. An approach was made and David and Monica leapt at it. They travelled to Canberra to book the girls into a school and found a home they could rent in Red Hill for six months.
Then, one Saturday, David read a newspaper article announcing Jeff Miles’s appointment as CJ of the ACT. No-one in the ACT had the courtesy to let David know. It became a longstanding joke for him, even when the position recently came free – Do you still think I have a chance? Do you think they will give me a call?
Another diversion – the Federal Court: The ACT debacle opened another door. David soon received a call from Sir Nigel Bowen (a wily move by Nigel; he knew I was at a weak point) asking him to join the Federal Court based in Sydney. He accepted and was appointed in late 1985. David was delegated to the Constitutional Commission as chair of the Judicial Advisory committee.
The family enjoyed the move to Sydney, but David found the work of a judge undemanding (it is not that hard; you normally have two well prepared barristers guiding you – much easier than writing an opinion). The real problem was the salary: David was always well-paid for his work at the Bar and had built a lifestyle around that (my family are highly accomplished spenders – ends weren’t meeting). The sale of a house at Brisbane prices followed by the purchase of another at Sydney prices did not help. After only two years he resigned and returned to the Bar.
A return to the Bar: David chose to remain in practice in Sydney and thought it appropriate to purchase the chambers of the barrister replacing him on the Federal Court, Marcus Einfeld QC, at 14 Wardell. Obeying a quaint Queensland practice, he took the other barrister at his word and neither checked nor negotiated the purchasing price. He later believed he had paid twice the true market value.
In 1988 he purchased Murray Gleeson’s double room on Seven Wentworth7 where he remained until 2002, moving to New Chambers to an enormous room with breathtaking harbour views. His chambers created quite an impact – and that was the way he liked it.
Achieving High Court dominance: From about 1988 David dominated appearances in the High Court. The dominance continued until only a few years ago. For years David was appearing on one side or the other in about a quarter of all High Court hearings, in about half of the really important ones, and in 90% of the major constitutional cases. It is true that other barristers had, over time, appeared in the High Court often – Dixon and Starke are examples from the earlier days; Barwick in the mid-century. But they were usually briefed in cases which had originated in their home states.8 The idea that one barrister would appear quite so regularly was unprecedented.
A key factor was the removal of the general right of appeal and its replacement with the requirement the appellant acquire special leave. Special leave applications could have been designed by David to enhance his income. An advocate needs quickly to crystallise a crucial legal point in a persuasive manner. Nobody will ever be better at this than David. In twenty softly spoken minutes he could take command of the courtroom. It was rare that he did not have three applications in any Sydney special leave list and usually had four (once when he had six applications, he still managed to complain that one was at legal aid rates). And he would also have two or three applications in the list when the High Court sat elsewhere.
Watching David on those special leave days was a real joy as he masterfully weaved his way through one argument in a case about the tax deductibility of foreign investment expenses, then get up to present the next one on the content of the duty of care in product liability, then the next one on equitable estoppel. It was all done seamlessly, apparently effortlessly, concisely, dispassionately, smoothly. It was truly inspiring. David set a new standard.
High Court dominance: It is now difficult to compile the list of cases argued by David in the High Court – mainly because there were so many of them and they go back to the late 1960s. Using various search engines, it appears David presented the argument to the High Court in over 400 cases. To this could be added a thousand special leave applications.
Statistics do not tell the whole story. The real story is that these were not ordinary cases: David Jackson appeared in many of the most important cases ever decided in this country. And he did it across every conceivable field of law. It is impossible to start naming the cases because once a start is made it is impossible to stop. Perhaps some gauge for his contribution can be gained by looking at the reading lists in the course outlines published by the law schools – those lists are dominated by cases argued by David.
Why was David not appointed to the High Court? This is difficult to explain. There is no doubt that he was the outstanding candidate – David was Australia’s pre-eminent lawyer for twenty years, respected by all. He had been sounded out, time after time, but the appointment was never made. Outwardly he revealed no disappointment and in later years he betrayed no bitterness, but it must have hurt. Sometimes he would wonder out loud about the wisdom of particular appointments, but spoke rarely of chances lost and when he did only cryptically – I suppose it was a matter of poor timing on my part.
A prediction David made: Maybe because of his own experience, David was reluctant to make predictions whether a particular person might end up on the High Court. An exception was Stephen Gageler who, even when a junior, David freely predicted would serve on the High Court and become Chief Justice. David would have been pleased by recent events.
Manner of private expression: David was polite to all. It was his personal habit (not just an advocacy technique) that he always let the other person finish what they were saying – a trait learned from Harry Gibbs.
Maybe as part of this, it was a stylistic feature of David’s speech that he rarely expressed things in strong terms – but, if you knew the code, that understatement carried its own impact. So it was that the highest praise of an opponent or a judge was that they were ‘able’. A truly stupid judge or opponent was ‘a little slow out of the blocks’. A barrister regarded as untrustworthy was ‘careless’ or, if really out of line, ‘a trifle sharp’. Those with self evident drinking problems were ‘thirsty’. All manner of disparagements were disguised as compliments – a description of your submissions as ‘comprehensive’ was, in fact, a withering criticism that you were tedious, and if he told a junior their draft ‘had the advantage of brevity’ it meant they had missed the point. If some draft ‘needed further work’ he was really saying it should be scrapped.
Work habits: David’s ordinary working day would start around 7.30 am and finish between 5 and 5.30 pm. Things have been said that he worked late into the night, but that is wrong. Even on the eve of a High Court appearance he would work no later than 6 pm, leaving plenty of time to dine.
He was a six day a week worker. Even toward the end he would come into chambers on the weekend, usually in the morning and often complain, even on a Saturday morning, that no-one else was to be seen – ‘where are the young people – this place is a ghost town’.
David was never underprepared for a case; he allowed plenty of time to prepare his cases – days were spent getting arguments ready. (Many might say that he could do this because his clients could afford it, but he did this in his pro bono work as well). David presented his oral arguments from a carefully prepared script. That script was the product of multiple drafts, usually seven drafts, often more than ten drafts.9 The purpose was not only to cover the issues, but to get the argument just right. The order in which arguments were presented was a matter of careful tactical choice. Authorities were selected with an eye to the likely composition of the Bench.
Manner of presentation: There were no courtroom theatrics with David. His presentation was dignified, his accent polished, his delivery at a measured pace. His voice was soft and at times it was actually a little hard to hear what he was saying, but all that meant was that those listening focussed more. He gave an impression that he was unfolding a story, resolving a mystery. It was all so smooth.
His generosity: David’s happiest moments were while entertaining, playing the host, showering gifts on family, friends and colleagues, organising a party or a simple get-together. He had so many friends and he was always eager to make more. No expense was ever spared, the best wine, the best food, the best company.
Hobbies: David had few hobbies and none were serious. His work was his hobby. Outside work he was always reading history, especially military history and twentieth century British history. He enjoyed cooking and prepared elaborate meals for family and friends. His real pastime outside work was fine dining or, really, dining at any time, anywhere, with friends and family.
Sporting interests: David had little general interest in sport; he keenly followed Test cricket, but never expressed much enthusiasm for other sports.
Politics: David read three daily newspapers and was deeply fascinated with Australian and international politics – yet he rarely spoke of his own politics. He claimed to be a liberal conservative (a habit which, I suppose, I inherited from my parents). He was never right wing. For example, at the last federal election David was very concerned about the conservative candidate and vowed to vote independent. Maybe because of his early experiences as counsel for Queensland, David remained something of a state’s rights advocate.
Religion: Although a lifelong Catholic, David never spoke much about religion. Many of his close colleagues were surprised his memorial service was held at St Mary’s Cathedral. His religion was important to him; he did not make it important for others.
Plans for retirement: Like most barristers, David spoke often and longingly of retirement – and then did nothing about it.
Friendships: Given he was so gregarious and such a generous entertainer, David collected a remarkably large and diverse group of friends. He worked on maintaining them. It is impossible and invidious to list David’s friends – but one friendship stood out. David met Ian Gzell10 when he started law and they remained closest friends until Ian died in late 2022. They had been born only a few months apart. David’s move to Sydney was probably the spur for Ian to follow. They lunched regularly and well;11 they spoke every few days; they never had a fight (although David would persistently rib Ian over his choice of hats). In a typically understated way, David was able to explain why they were so close – Ian is a fellow with no hangups.
Family: David and Monica were happily married over 50 years. On the day of their wedding, David made a written promise – ‘flowers and champagne, the only way to go’. And so it was. They raised three wonderful daughters – Catherine, Dominique and Louise, and shared four grandchildren.
I have never known a man who spoke so often, so respectfully, and so genuinely lovingly of his wife as David spoke of Monica. BN
ENDNOTES
1 David’s father Leonard was twice wounded while serving on the Western Front; in 2018 David travelled to northern France to see the places where his father had served and was wounded.
2 Although, in a later casual encounter with the ophthalmologist in a Brisbane street, the doctor recanted his diagnosis. The ‘what ifs’ are obvious.
3 Commenced after a misspent year studying Engineering.
4 Stories were invariably recounted while mimicking Sir Harry’s rather strong old-fashioned Australian accent.
5 James David Dunn: 2/15 AIF 1941-48 serving mainly in New Guinea; admitted as a barrister 1950; QC 1966; Supreme Court judge 1974-83.
6 Charles Dean Sheahan QC: b 1915; Second AIF 1941- 45; admitted to the Bar in 1947; QC 1966; Supreme Court judge 1977-1985 – father of John Sheahan KC and step-father of the Hon Justice Paul Finn.
7 Upon Gleeson’s appointment as CJ of NSW. The agreed price, incidentally, reflected a fair market value.
8 There is a partial tabulation of occasions upon which barristers appeared in the High Court in the Oxford companion, but it is limited to those barristers subsequently appointed to the High Court. In any event, counts undertaken from earlier days are hard to compare with the statistics collected after the restriction of the original jurisdiction and the removal of the general right of appeal.
9 This was an elaborate process involving successive drafts on different coloured paper, scissors and sticky tape. Until they had seen it more than once, his juniors were surprised by seeing Australia’s leading appellate advocate hunched over, cutting and pasting away. The outline of argument had to be typed because David’s handwriting was truly appalling – a fact which he never accepted even though he often had trouble reading it himself.
10 Ian Vitaly Gzell AM KC judge of the Supreme Court of NSW 2002-2013. Based upon an occasion in the 1970s when Ian’s name was mispronounced, David always referred to Ian as Iron Gee Zell – a joke of which David never tired.
11 While Ian was hearing the long-running James Hardie prosecution they made an agreement to suspend relations because David had delivered the report providing the basis for the charges. David became concerned that, if Ian did not turn a judgment around quickly, several of their favourite restaurants could go broke.