Philip Ernest Powell – euglogy

The SHSOBU reprints with kind permission, the eulogy delivered by Philip Powell’s daughter, Melissa Powell

The Honourable Philip Ernest Powell AM QC was my father. It is my great privilege today to tell you a little about Dad’s life, and to share some memories with you.

Philip Powell Uni (1)  Dad was born on the 9th of November in 1930 to Sylvia Albina Keeling and Edward George Powell. Dad was born and bred in Vaucluse and lived at home with his parents and his older sister Patricia until he was married.

Grandpa Powell’s family owned a prominent piano company and Grandpa Powell was a piano tuner himself by trade. This probably had something to do with Dad’s love of classical music and his rather embarrassing habit of conducting the orchestra or performers himself from his seat in the audience every time he watched a particularly moving musical performance.

Dad was an exceptionally brilliant scholar. He was a voracious reader with a phenomenal, photographic memory. From 1942-1946, he was educated at the academically selective Sydney Boys High School.

Philip Powell Spycatcher Case (1)During this time, Dad was an enthusiastic member of the Eastern Suburbs Athletics Association, where he excelled in hurdling. He was also actively involved with the youth group at St Michaels Anglican Church, Vaucluse.

Dad graduated from the University of Sydney with a Bachelor of Arts and a Bachelor of Laws, which he received with first class honours. During this time, he was also awarded the Equity Prize.

Dad was admitted as a solicitor of the Supreme Court in 1954, and then to the bar, only one year later, in 1955. As a young graduate, he initially worked for Dudley Westgarth & Co, whom he mischievously referred to as the Deadly Dustcart & Co.

At this time, chambers were in short supply. When Dad came to the bar he was fortunate to initially be able to share a room with Douglas Staff at Chalfont Chambers, later moving to the newly completed Wentworth Chambers.

In 1985, the Honourable Justice Michael Kirby gave a speech titled Rambles and Recollections of the 12th Floor Wentworth. He noted:

Philip Powell had a large room. There was always coffee brewing. He was always ready to devote an hour to explain the mysteries of Equity, with generosity and patience.

I remember vividly that he had a book – a sort of modern Domesday Book. In it was recorded the precise date upon which every judge would turn 70 and would, for statutory senility, be forced to retire. That was a book of opportunities.

In due course, one of them was seized by Powell. It is a sobering thought to reflect upon the fact that somebody now, almost certainly, has him (and me) in just such a book.

From 1956-1962 my father was a Teaching Fellow in the Law School of the University of Sydney. During this time, he was Editor of the 13th and 14th editions of the classic text, Yorston and Fortescue’s Australian Mercantile Law.

Dad took silk as a Queen’s Counsel in 1970 and was also appointed a QC for the Australian Capital Territory in 1972.

He became a member of the New South Wales Bar Council in 1972, and was subsequently appointed as Treasurer and Vice-President.

Apart from serving as a member of the Barristers and Solicitors Joint Examinations Board for fifteen years, and as representative of the bar on the Barristers Admission Board, he was a member of the Executive of the Law Council of Australia and of the Executive of the Australian Bar Association.

Dad had an extensive practice in all jurisdictions, including the appellate field. In fact, he was seen by many at that time as the leading silk in industrial matters for the State of New South Wales.

The primary focus of his years at the bar was trial work in commercial and equity suits. It was in the course of Dad’s practice at the bar that the principal characteristics of his contribution to the law first emerged.

Those characteristics included a meticulous attention to detail, not only of the law, but of the facts, and a mastery of the intricacies of legal procedure and history. Dad acquired an encyclopaedic knowledge of old and technical law relating to procedure and to the history and evolution of equitable doctrine.

With his all-round experience in both the common law and equity jurisdictions, it was inevitable that Dad would make a valuable contribution towards the work of the Supreme Court of New South Wales. He was appointed as a Judge in the Equity Division of the Court in April 1977 at the age of only 46, and as a Judge of Appeal in October 1993.

Many members of the bar who appeared before my father as a trial judge came to admire his learning and attention to detail, though they would not necessarily have always described the experience as a pleasure.

At his own swearing in ceremony as an Associate Judge of the Supreme Court of NSW, the Hon Justice Philip Hallen stated:

I have been lucky enough to have appeared before equity and probate judges who have mentored me. For a number of years when my career in the equity, probate and the protective areas was developing, the judge whom I appeared before most often was the Honourable Philip Ernest Powell.

My first experience before his Honour, I confess, was not very promising. Early in the case I heard the words, “Never appear in this court again.” I was shocked, I looked at the judge who seemed to be scowling at me.

I looked at the plaintiff who appeared to be about to throw up. I then turned to my instructing solicitor and said, “Did I actually say that out loud?” Luckily, all he said was, “Don’t worry, he didn’t hear you!”

I am glad to say that things improved, at least for me, after that, and for as long as I appeared before his Honour we got on very well. I thank him for all his judicial advice and for what he taught me.

Philip Powell AM (1)My father always displayed the utmost courtesy to legal practitioners, litigants, witnesses and court staff. No litigant or lawyer who appeared before my father ever had any doubt that the intricacies of the dispute that had brought them to the Court, and the detail of their argument, received anything but the closest attention and that all the substantive arguments put to him were dealt with in meticulous detail.

Throughout his judicial career Dad approached his tasks with the appearance that it was a great privilege for him to be allowed to handle the affairs of others. Everyone who appeared before him left the Court knowing that their case mattered.

There were, of course, in such a long career on the bench, a number of cases of considerable public interest and significance – none more so than the Spycatcher trial that took place during 1986-1987.

In this trial, a young lawyer and future Prime Minister named Malcolm Turnbull represented Peter Wright, an officer and assistant director with the British intelligence agency MI5. This was a case that generated significant publicity.

For us children, this was a trial that we found especially exciting, even more so when we discovered that the Spycatcher trial was to be made into a television series. Ed Deveraux was set to play the role of our father. We couldn’t believe it – we had grown up watching Ed Deveraux playing Matt Hammond, the Head Ranger of Waratah National Park in the television series Skippy the Bush Kangaroo!

The Spycatcher trial was reported all over the world.

The New York Times recounted the following:

A five-week trial involving intense British efforts to suppress publication of the memoirs of a retired member of the British Secret Service has ended, with the Australian judge expressing scepticism about the veracity of London’s chief witness.

”Here is a man who would fudge when it suits his purpose,” Justice Philip Powell said of Sir Robert Armstrong, secretary to Prime Minister Margaret Thatcher’s Cabinet. ”Some parts of his testimony I have great difficulty in accepting.”

The UK Times reported in an article titled:

THIS JUDGE IS MORE THAN MEETS THE EYE

His Honour Mr Justice Philip Ernest Powell has been heard to refer to himself during the proceedings as ”just an old colonial”. He is clearly more than that, however.

Mr Justice Powell’s avuncular manner towards counsel for the British Government and Mr Wright is marked by his commentaries on the duel that is going on.

After one sharp-witted exchange he remarked: ”That’s 15-all, ” while the sallies of Mr Malcolm Turnbull, the shrewd young solicitor appearing for Mr Wright, are occasionally mildly admonished. ”That’s yours for the day, Mr Turnbull. ”

Last week, discerning one more of a series of tactical adjustments by the British lawyers, he expressed anger for the only time so far in the proceedings, describing what he said was his ”rising sense of frustration” at these ”serpentine weavings”.

From other remarks, including references to characters in the novels of John Le Carre, it is clear that Mr Justice Powell is well-read in the literature of the secret intelligence world, but his main recreation is gardening.

The Sydney Morning Herald reported:

The MI5 spy case in the Supreme Court has been going on for so long that Malcolm Turnbull has now started recycling other people’s jokes (we use the term loosely).

Yesterday, Justice Philip Powell (who admitted that he was “the only nut in the Supreme Court”) remarked that the area surrounding him, which was full of law books, was becoming as crowded as Piccadilly Circus at 6pm.

Mr Turnbull replied: “You had better watch out for all those spies crawling out from under the statue of Eros.”

This is, of course, the same joke used by Justice Powell some weeks ago. The following exchange then took place.

Justice Powell: There is nothing as bad as having one’s crook jokes regurgitated.

Mr Turnbull: Well, just as the Queen can do no wrong, judges cannot tell bad jokes.

Justice Powell: Flattery will get you everywhere.

Mr Turnbull: I hope so.

My father’s judgment in the Spycatcher trial was subsequently affirmed twice on appeal, making a significant contribution to the law on confidential information.

A few years later, in 1991, the Sydney Morning Herald reported another of my father’s trials under the heading:

FACING TOUGH JUSTICE WITH WIT UNDER THE WIG

The article read:

In the drab world of the State’s equity courts, where there is no prerequisite for humour, Justice Philip Ernest Powell is seen as something of an enigma.

Bewigged and bespectacled, he has presided over some of this decade’s toughest civil cases. He is strict, sometimes curt, but has an irresistible wit, with which he sprinkles the law.

When he presided over the celebrated Spycatcher case four years ago, he was described in the overseas media as a cross between Rumpole of the Bailey and Justice Cocklecarrot, a judicial wit created by a London columnist.

Now he is overseeing a case which will have a greater impact than the Spycatcher trial. The decision he has foreshadowed handing down on Monday could decide which way the balance of power lies between the parliament and the judiciary.

The case has cemented the judge’s reputation among his colleagues for being conscientious and hard-working. Two nights running, the case kept Justice Powell, said to be at work by 7.15 most mornings, back in court late. Once he returned to his courtroom after 9pm to hear an urgent application from Westpac.

The next morning, he was back, littering his vocabulary with the sometimes florid language for which he is famous: Who was the “deep throat mark two” distributing the secret Westpac documents by fax from Belgium?

He then used a gold-mining analogy to put his point that, although the media organisations argued the Westpac letters had been so widely published it would have been an exercise in futility to continue the injunctions, “there’s still gold in them thar hills”.

He is said to be a former intelligence officer. During the Spycatcher trial he earned notoriety in the British press with such remarks as: “You don’t understand what weasel words are because you don’t have a dirty mind like mine.”

Another of my father’s judgements charted a course through the quagmire of artistic temperament, when he admitted to probate the will of the infamous artist Brett Whiteley, in the form of a document that could not be found after his death, had been witnessed by only one person, and had last been seen fixed with sticky tape to the underside of a kitchen drawer.

Day after day the people of New South Wales were entertained by the intricacies of the Wills Act and the endless possibilities of informality in will making.

Even though the will had gone missing after Brett Whiteley’s death, my father accepted that it had existed, which resulted in an earlier will being revoked. Such controversy!

In another trial in 1985, my father ruled that the Archibald Prize should be retained in perpetuity by the Art Gallery of New South Wales. In response to a challenge after the death of Gladys Archibald, the last surviving beneficiary of J F Archibald, Dad decided that the prize could continue as “a good and charitable bequest”.

He rejected the submission that the Archibald Prize had become so irrelevant that it “was like giving a prize for cave painting”. Dad ruled that “those who came but to stand and stare must learn something”.

My father’s extensive and varied judgments made numerous contributions over a wide range of issues, including:

  • identifying the signs of a de facto relationship in the then new legislation
  • provision for widows under the Family Provision Act
  • the locus standi of a beneficiary to sue to protect an interest in an estate
  • the testamentary capacity of a person who suicides after making a will
  • and the requirements for undue influence affecting a will

As is usual, the overwhelming proportion of cases that came before my father were not of wide interest or public importance but were of high significance to the parties involved.

My father served for a long period as the Judge in the Protective jurisdiction of the Court and then as the Probate Judge of the Court. In both spheres, his judgments, many unreported, decisively developed the law.

The requirements of the Protective jurisdiction include expertise with psychiatry and a personal touch for those with a disability. On many occasions my father came down from the bench, sat at the bar table with the disabled person and patiently explained what was happening and why.

At the time of his retirement, Dad’s judgments in the field remained a substantial resource. Under the category of Mental Health, the Australian Digest set out sixty judgments of the Court from its inception in 1824. At that time, twenty of those judgments (or one third) were my father’s.

Dad’s command of the English language was a singular delight of his judgments. One of the most important contributions that a superior court makes to the administration of justice is the clarification of the law in such a manner as to ensure that clients are able to be advised with assurance. Clarity and lucidity of expression is, for that reason, a primary judicial virtue. My father unquestionably had that capacity.

Whilst the length of my father’s sentences, often with numerous subordinate clauses, would sometimes leave a reader breathless, the journey was always assisted by the deployment of punctuation with precision and in abundance. These sentences were (and still are for some) a pleasure to read, but not always so by the litigants and practitioners referred to in them.

In 1990, my father commenced one judgment with the following:

At long last, after a delay of the better part of five months, which has been brought about by what I can only describe as blundering incompetence on the part of the Plaintiff’s advisers, this application is in a condition in which it can finally be disposed of.

Notwithstanding the delay, and the incompetence, which have marked the application’s stumbling and erratic progress to this stage, the Plaintiff’s counsel submits that the Plaintiff should have an order that the whole of his costs of the application should be paid out of the Defendant’s estate.

The litigants in a partnership dispute over a pharmacy were greeted with the following opening sentence on Valentine’s Day in 1984:

After listening, for the whole of the morning, to the evidence, and arguments of counsel, in this matter, I am reminded of nothing so much as the learned gentleman whom Gulliver met on his voyage to Laputa, and who had spent eight years upon a project for extracting sunbeams out of cucumbers which were to be put into phials hermetically sealed, and let out to warm the air in raw inclement summers: I am amazed that, in this proceeding, so much time, money, and intellectual effort has been expended upon a question which has so little relationship to reality.

This single sentence contained eleven commas and one colon.

On hearing of his passing this week, the president of the Sydney High School Old Boys Union, Paul Almond wrote:

I am very sad for the loss of your father. While I did not know him, I did appear before him in Court. He was a formidable lawyer with very strongly-held values. A rare combination in my experience.

In 2002, my father reached the compulsory retirement age for judges of 72 years. I have no doubt that had he been eligible for a longer stint at the bench, he would have done so, more than willingly.

It is probably clear by now that the law was my father’s life. It really was everything that he lived for. Since a very young age, he had told everyone in his family that he wanted to be a lawyer. He was driven.

It was therefore a great honour for him in 1996 to be recognised as a Member of the Order of Australia for his service to law.

Dad married my mother, Hildegarde in 1960 and they had four children together, Melissa (me), Richard, Rosemary and Simon. To be honest, we really didn’t see much of our father when we were growing up as he was so focussed on his legal career.

I do have memories of him though sitting in his study on weekends surrounded by books, books, endless books. His library was enormous. He always insisted on buying hardback books – no inferior cheap paperbacks for him!

Dad was an absolute perfectionist, without a doubt. He set high standards for himself and he always expected the best of himself and others. I was fascinated to watch as he wrote the most amazing bank cheques – always using his blue fountain pen and always with all of the lines ruled meticulously straight with a ruler. Freehand would just not do!

Without a doubt, I have actually gained part of that very same perfectionist streak from my Dad, and I know that I have even passed that on to my daughter Georgia – although I do hope that I have managed to gain a better work-life balance. And in this day and age, I don’t certainly write cheques!

In what little spare time he had, Dad was a very keen gardener and always had a great fascination with camellias. At one stage he was even intent on joining the Camellia Research Society. It seemed particularly fitting then, when our family bought a block of land in 1970 on which to build our new home, that it was situated in Waterhouse Ave, St Ives. The street had actually been named after Professor EG Waterhouse, the acclaimed camellia expert. Dad lived in that very same house for more than 43 years.

Given Dad’s love of and commitment to the law, it seems fitting to conclude with the words of then Chief Justice James Spigelman on the occasion of my father’s retirement from the bench in 2002:

Your Honour’s predilection for precision is, you should know, much admired. You always stayed on the right side of that fine line between precision and pedantry. The clarity of your Honour’s expression will mean that the judgments you delivered in your long period of service on this Court will stand the test of time. On behalf of all of the Judges of the Court I thank you for your contribution to the people of this State and to the law.

I couldn’t have put it any better.

Thank you Dad for everything that you gave to the law and for everything that you gave to your family.

You will never be forgotten and we will always be eternally grateful.

Rest in peace.