The Hon Murray Herbert Tobias AM RFD KC 1939—2023

NSW Judge of Appeal, King’s Counsel, Barrister

Murray Herbert Tobias died on 10 March 2023 aged 84 years.

His Honour was born in 1939, the son of Joyce and Raymond (deceased) with a brother, Robert. Tobias KC’s pedigree in the law stemmed from his father Raymond, who was an eminent solicitor in Sydney and great friends with the late District Court Judge Aaron Levine.

His Honour studied at the Scots College in Bellevue Hill, then attending the Sydney Law School to study a Bachelor of Laws. Subsequently, his Honour went up to Exeter College Oxford to read a Bachelor of Civil Law (BCL).

His Honour was called to the Bar in 1964 and read with the late the Honourable John Carney. Tobias KC acquired chambers on the Sixth Floor of Selborne Chambers in 1965 where he occupied the former chambers of RJ Marr DFC OAM QC. He conducted a practice at the highest level in general commercial law, land and environment court matters. In chambers he practised alongside David Kirby QC, Michael McHugh QC and TF Bathurst QC, as their Honours then were. He also became great friends with the late the Honourable Brian Cohen QC.

Tobias KC was known for his many appearances before the Land and Environment Court from its inception, with his experience and enthusiasm therein leading many solicitors to dub him the father of that court. His Honour also appeared in many commercial and administrative cases. Mr Robert Benjamin, former President of the Law Society of NSW, observed that his Honour was equally adept at town planning matters as those regarding ‘the mystery of the French fry,’ the latter referring to any mysterious case with novel facts. In hindsight his Honour is better designated as a generalist. His Honour was appointed one of Her Majesty’s Counsel in 1978.

Tobias KC mentored many future members of the Senior Bar, most of whom became judges, including Margaret Beazley – as Her Excellency then was – Sandra Duggan, Jayne Jagot, Angus Talbot, Richard Conti and John Webster, as they then were. He was elected as a member of the Bar Council from 1976 and served as President from 1993 to 1995. His Honour also served concurrently as Senior Vice President of the Australian Bar Association from 1993 to 1995. He had a distinguished record as an elder statesman throughout the 1980s and 90s.

At the encouragement of Sir Laurence Street, then Chief Justice of New South Wales, his Honour commissioned as an officer in the Royal Australian Navy Reserve to devote his legal talents to military law and the Defence Force. His Honour served on the RANR Legal Panel from 1968 and ultimately served on the NSW Naval Reserve Legal Panel from 1993 to 1998. Tobias KC retired at the rank of Captain, at which time his Honour served as a Judge Advocate and Defence Force Magistrate.

His Honour was appointed as a Member of the Order of Australia in the 1998 Australia Day Honours for service to the legal profession, particularly through the NSW and Australian Bar Associations, and to Military Law.’ His Honour was also bestowed the Reserve Force Decoration for his years of service to the RANR.

On 28 April 2003, his Honour was appointed directly to the New South Wales Court of Appeal from the ranks of senior silk. In the Court of Appeal, he sat alongside Justices Handley, Sheller Mason, Beazley, Hodgson, Young, Giles, James, RS Hulme, Simpson, Hidden – as Her Excellency and their honours then were – and his great friend the late the Honourable David Ipp. Additionally, he served under two presidents of the Court of Appeal, Justices Mason and Allsop.

He presided on matters from native title, equitable estoppel, procedural fairness, legal professional privilege, workers compensation, unconscionability, as well as the whole gamut of environmental law. From time-to-time his Honour also sat on the Court of Criminal Appeal.

Throughout his career, Tobias KC was most concerned about maintenance of professional standards. He served for about four years as deputy and then presiding member of the Legal Professional Admission Board, replacing the Honourable Justice Windeyer in 2008. During that period of time the institution and profession benefitted from his deep commitment to maintaining ethical standards, ensuring competence of practitioners, and preservation of independence.

His Honour retired from the Bench on 25 March 2011 in a valedictory sitting in the Banco Court attended by a great many of his colleagues, from former readers and members of the Bar, to sitting and retired members of the judiciary.

Tobias KC was lifelong friends with his Honour the late William (Henric) Nicholas QC with whom he later sat on the Bench of the Supreme Court, among other members on the Sixth Floor. Together in that number of friends were the Honourable Peter McClelland KC (who was an erstwhile opponent) and Bruce McClintock SC who was also an old sparring partner. Tobias KC notably shared a thirty-two-year-old Macquarie Dictionary with Nicholas QC when they were in chambers together and was relieved to regain access upon entering Judges Chambers in Queen’s Square. His Honour had a self-admitted aversion to technology but was a master with a highlighter. Tobias KC was a budding golfer, always participating in the Ken Hall Classic alongside his partner the Honourable RN (Angus) Talbot, no matter the score.

In 1969 he married Colleen Grumley and they had four children: Belinda, Bradley, Luke and Gabrielle. Colleen predeceased Tobias KC by a year. He was also grandfather to Thomas, Harrison (a barrister), Olivia, Elsa, Toby and Arlo. JJ Garnsey KC, a friend of some decades recalls his habitual and invariable kindness as a colleague in chambers, and as a personal friend. The Honourable Justice Slattery AM AM(Mil) RAN gave a eulogy at Tobias KC’s funeral.

Tobias KC was a great exponent of a competent practitioner who practised across the board, from the most complicated criminal law matters to those clearly in the province of civil law. He was adept at administrative law and local government cases. He was also no stranger to significant appeal cases at different levels. He gave voluntarily and freely of his time to junior practitioners and he was most solicitous of their career development. Tobias KC was a fine judge in the NSW Court of Appeal and will be remembered as a learned and gentlemanly figure of the Bar and the Bench in NSW. BN