ON THE RETIREMENT OF HIS HONOUR JUDGE R F BURKE
COURT OF NEW SOUTH WALES
16 MARCH 2001
RETIREMENT OF JUDGE RAY BURKE
Hon Justice Michael Kirby AC CMG
occasion marks the approaching retirement of Ray Burke.
When, at last, he lays down judicial office,
things will never be quite the same, absent his mercurial
personality from the Bench of New South Wales.
The High Court of Australia will also miss
his grand remonstrances about the errors into which
he feels we have sometimes led compensation law.
It falls to me to honour him because I have
known him for longer than just about anyone in the
Despite my academic career (which
only my legendary modesty restrains me from describing
as brilliant) I found it difficult to obtain articles
Busily, my Aunt Lillian typed out applications
for employment on my behalf. Having no connection with the big families or the legal establishment,
I was rejected by all the large firms. To this day the scars are remembered for I share with Ray Burke
an ancestry traced to Ireland, where grudges are carefully
nourished and never gratuitously thrown away.
Another Irish-Australian, Barry
O'Keefe, was tutoring me in criminal law to supplement
the lectures on that subject given (with barely concealed
disgust) by Mr Vernon Treatt QC, a part-time politician.
Barry O'Keefe suggested that I had made a mistake
by applying to the lawyers of the top end of town.
Instead, he proposed that I start afresh at
the other end of the law's anatomy.
And that is how I found Ray Burke.
The year was 1958.
So he was of the tender age of 28.
I was beginning the third year of an Arts/Law
course at the University of Sydney.
Because my birth date was exactly ten years
and a day behind his, it was never difficult to track
our ages. I
was 18 going on 19.
A solicitor aged 28 seemed decrepit.
And the principal of the firm, Maurice Arthur
Simon, seemed positively prehistoric.
Mr Simon (I never got to call him
Maurie) was a small plump man who huffed and puffed
like a steam engine.
He had a bristling moustache, which added an
unconvincing debonair touch to his otherwise furious
Mr Simon was Jewish.
Ray Burke, on the other hand, was Roman Catholic.
Until I reached university and bumped into
young Murray Gleeson, I had never really met a Catholic.
Ray Burke was to be my master solicitor, for
Mr Simon already had his quota of articled clerks.
He had Frank Marks, for example, and wanted
So it was that I was accepted into
employment at the grand starting salary of £6 a week.
My father and I had to sign the articles of
his part, Ray Burke promised to teach me all the law
he knew. For my part I promised not to steal the postage stamps or the
My father bound himself to accommodate me and
to pay for my clothing and healthcare.
I still have the document.
It was to be the key that opened the door to
my life in the law.
The firm was M A Simon and Co.
Ray Burke was the "and Co".
He was Mr Simon's only business partner.
Indeed he was the only other solicitor in our
small office. We were housed in premises that can only be described as art
The building was owned by an insurance company
which must have fallen upon hard times or, being Scottish,
economised on the décor.
There were pale yellow tiles everywhere.
They ran from the front door into the toilets.
They brought a vomit-coloured quality of gloom
to the place.
But I was soon to find the gloom broken by
the bolts of lightening which M A Simon and Ray Burke
sparked off each other, off clients and (when they
noticed us) off the trembling articled clerks.
Amongst his many saintly qualities,
one which I could not honestly attribute to Ray Burke
was trappist silence or lovable patience. He did not have that quiet whispering capacity that I was later
to cultivate assiduously for myself as I adapted to
a life of inaudible dialogue with senior counsel of
the equity and commercial Bars.
Neither Ray Burke nor M A Simon were quiet
Neither had ponderosity or gravitas.
Each seemed constantly to be looking for a
reason to shout and scream at the other.
In between this ongoing drama, each, in his
own separate way, looked after the interests of the
clients entrusted to his charge.
But M A Simon kept clients to an absolute minimum.
The work of the firm basically
came from the Labor Council of New South Wales.
I can still see the letterhead introducing
each new client.
The logo was a relic of the nineteenth century.
It conjured up heroic images of Marx, Engels
and Lenin and storming the ramparts.
At the bottom of the page was the signature
of Mr Bill Ritchie.
He was the mysterious triage officer who handed
out the work to M A Simon and the other law firms
on the Labor Council list.
How Maurice Simon came to be on that list is
something of a mystery.
Never once in my presence did he display the
slightest intellectual or emotional sympathy for the
Ray Burke on the other hand, was in those days
a stalwart supporter of the workers. These were the times when the worker's house was divided.
The Anti Communist Labor Party had arisen in
the wake of the failed referendum to ban Communists,
that took place fifty years ago this year.
Later that party was renamed as the Democratic
Labor Party (DLP). I was never quite sure whether Ray Burke embraced allegiance
to that party.
At the time, it seemed likely to me that he
as Catholics saw Masons under every stone, Protestants,
like me, saw DLP-ites 'round every corner.
In a desultory way I would tackle
him from time to time about the errors of the Church
of Rome. But
he would have none of my heresies.
These were the days, long before ecumenism.
Either you were a Catholic or you were condemned
to eternal hell fire.
Simple as that. Our one-sided debates on theology led me to the opinion that
Ray Burke was perhaps willing to concede that I might
make something of my professional life.
But it was ultimately utterly pointless, because,
as a Protestant, I was condemned to eternal damnation
This was not a particularly sound
foundation upon which to establish a warm personal
rapport between a master solicitor and a clerk. But it was part and parcel of the attitudes of that time.
Eugenio Pacelli was the Pope.
Norman Thomas Gilroy was the Cardinal.
In the New South Wales Labor movement, St Mary's
Cathedral was "headquarters".
In this map of the world there was not much
room for a Luther-admiring Protestant of the Anglican
Looking back, it seems astonishing
now that sectarian bias reached so late into the century
in Australian life.
So it was probably very good for the soul of
the future Judge Burke that he was required to spend
three years in the austere company of a Protestant
It was certainly good for the articled clerk.
Mind you, the experience must have been so
traumatic that no similar experience was thereafter
Woodward, Pat Grimes, David Coleman and Michael Fawkner
came straight out of "headquarters".
Indeed, the only exception was Frank Marks,
my contemporary as an articled clerk, who Mr Simon
selected, doubtless to give the firm a cosmopolitan
and religiously tolerant illusion.
Pat Grimes did not help things by setting up
a branch office of the Federated Clerks' Union and
displaying a big photograph of his heroes, Pope Pius
XII and B A Santamaria, in his office.
Our premises were so small that
we were thrown into uncomfortably close daily contact,
one with the other.
Three windows opened out into O'Connell Street.
Across the street, in gold letters, was emblazoned
on a window the name of a truly respectable legal
firm, Windeyer Dive and Company.
Sanity, I thought, as I shook my head, looking
across the divide, at the neat lawyers at Windeyer
Dive with their waistcoats, gold chains, eyeshades,
cardigans and leasehold remainders on the other side
of the street.
Sadly, number 26 O'Connell Street
with its pale yellow tiles is no more: another victim
to developers' dreams.
Yet in my mind's eye I can see quite clearly
my own little office which I shared with Frank Marks.
It abutted Ray Burke's and there was no door
I interviewed my clients and learned the rudiments
of the legal life, I could hear Ray Burke in the adjoining
office talking to clients and shouting across the
telephone at a barrister who had missed a mention
before the fearsome Justice Manning or who had the
temerity to press for his fees in a compensation claim
that "he" had lost.
Most of the work we did in those
three years was in the Workers' Compensation Commission.
As I was to find, a busy day in the compensation
list, with an adjournment, three mentions, a costs
certification, two motions and four hearings was a
splendid preparation for a special leave day in the
High Court of Australia.
Occasionally at M A Simons,
we would venture into the Supreme Court or the District
and Equity were lost empires.
Rare indeed were the visits to the Matrimonial
Causes list. It
was as if our corporate Roman convictions did not
really approve of that type of work.
Perhaps, more to the point, in those days,
divorce, like crime, did not pay.
These were also days of a smaller,
even tiny, legal profession.
Old courtesies were still observed that have
long since atrophied.
In my first days as an articled clerk, Ray
Burke accompanied me to the Supreme Court to introduce
me to Mr Deputy Prothonotary Cyril Herbert. At that time it was customary for a master solicitor to take
the clerk on a courtesy call to symbolise the apprenticeship
that articles of clerkship involved.
I can remember walking up an endless flight
of stairs to a tiny attic room in the old Supreme
Court in King Street where Mr Herbert received his
lectured me gently in the traditions of honesty, diligence
Mr Herbert's admonitions were reinforced
by Ray Burke. He told me fearsome tales of solicitors with whom he had experienced
"If you break your word", he said,
"it soon gets around and nobody will ever trust
Images of a horrid exile from the newly entered
kingdom of the law were conjured in my brain.
Ray Burke was then, and has remained ever since,
a person of total honesty. If, as a solicitor, he gave his word, he held steadfastly to
in those days a lot depended on oral agreement and
the standards of modern time charging, we were doubtless
But in terms of efficient and economical deployment
of lawyerly time, we could beat the modern systems
of management consultants hands down.
Not only was Ray Burke's office
was filled with smoke.
In those unenlightened days there was no concern
about the billowing effects of tobacco and passive
smoking on poor clerks, denied a window. I remember vividly the day that his first child, Judith, was
recall my own twenty-first birthday in 1960.
My father still has the birthday card, emblazoned
with a key, with the signatures of the other participants
in our tiny office.
In addition to the gang from headquarters
and the principal dramatis personae, there were the secretaries Pamela Hopkins (who
worked for Ray Burke) and later Jean Auchterlonie;
Priscilla Sawtell who worked for Frank Marks and me.
And Marie Burke, an attractive deep-voiced
sultry woman who tried to work, if that is the word,
for Mr Simon.
Whereas the rest of the firm had to get cases
prepared, Mr Simon conceived of himself as a kind
of legal entrepreneur.
His was the task of ingratiating the firm with
Mr Ritchie and the Labor Council.
Nowadays he would doubtless be called a "managing
I thought of him as constantly circling for
a takeover attempt on competitor firms.
Watch out Dawson Waldron!
Take cover Minter Simpson!.
In all truth, M.A.S. did not seem to do much
work at all, like most managing partners I suspect.
My greatest dread was when he would
return from a liquid lunch with Mr Ritchie and confront
me repetitiously with Polonian advice on my future
progress in the legal profession (he was convinced
it would be modest) or tackle me about the missing
biscuits that I had "stolen" to keep body
and soul together on the weekends as I laboured on
the clients' files. I never allowed these rebukes to worry me too much for I was
articled to Ray Burke.
And I had read the fine print of my contract.
I had made promises about not stealing postage
stamps and stationary.
There was absolutely no mention of biscuits.
the late 1950s and early 1960s the Workers' Compensation
Commission was a special place.
The building in which it was housed is still
there in Hunter Street, Sydney. Its courtrooms were palatial by the standards of most courts
of the State in those days.
There were only four judges.
The Chairman was Theo Conybeare, a punctilious
stickler for detail.
The "members" were Judge Rainbow,
a robust pragmatist, Judge Dignam one-time Ambassador
to Ireland and Judge Wall, a gentle, serious man with
Judge Burke, who was eventually
to succeed to a place on the same Bench was interested
in the law.
He instructed me, as he had promised, in the
intricacies of the Workers' Compensation Act 1926.
He took his law seriously.
He appeared to revel in its ironies, inconsistencies
He taught me a lesson that I have never forgotten.
Compensation law is about people.
That is why it is so important.
It is about the survival of families.
It is where many ordinary citizens see our
great edifice - the law - at close range. I have never been able to look down on this area of the law.
And objectively it is more important (and more
technical) than many of the fashionable parts of the
law's mansion - such as the big commercial cases
that are often no more than glorified debt recovery.
As important as Ray Burke's instructions
on the law, were his accurate assessments of the proclivities
of the judges.
For Theo Conybeare, the big point of every
case was the onus of proof.
Sometimes to us, who appeared in the interests
of the worker applicant, it loomed like the globe
which Atlas had to carry.
I was also warned to watch out for cases against
the Commissioner of Railways. The Solicitor for Railways had often briefed Conybeare at the
at all possible we had to try to get such cases out
of his list to escape suspected lingering loyalties.
Alf Rainbow kept his feet firmly
on the ground.
But one soon got an impression that he was
bored to death and had seen it all before.
The key to winning a case before him was to
find some peculiar, but interesting, feature of the
facts or some aspect in the conduct of your client
that made him or her appear a lovable rogue.
Fortunately, with our clients, the rogue part
was rarely a problem.
Bill Dignam, lately an Excellency,
would brook no infractions upon the dignity of his
court or his high person.
Moreover, the applicant had to be cautioned
to look him straight in the eye when the oath was
For Dignam this was a semi-mystical religious
bond forged between the witness and the Almighty.
Heaven help an articled clerk who whispered
or moved during the administration of the oath. To this day I still hold my breath whenever I hear an oath
administered in court.
Colman Wall was the workers' friend
on the Commission. But once the worker was caught out in a lie, he was a friend
no more. Even
irrelevant lies proved fatal.
In all of these idiosyncrasies I was carefully
instructed by my master solicitor. No doubt we too are now the subject of such folk wisdom.
The inside knowledge of the personalities
of the judges sometimes seemed far more important
than the nuanced decisions of law in the cases.
At law school, Julius Stone was hammering home
his realist jurisprudence.
This taught the inescapable influence of the
judges' attitudes and personalities in the decisions
of cases before the courts.
Judging was not a mechanical task.
Often there was no single right decision to
a case. I
had already received this instruction in bucket-fulls
from Ray Burke.
He was a true master in the Realpolitik
of the Compensation Commission.
We may sometimes regret the influence of judicial
personality on decision-making.
But it exists. No one has been able to invent a better system.
And, generally, the right result is reached.
The facts and the evidence control most outcomes.
A knowledge of the law and of the attitudes,
predilections and vanities of the judge was sometimes
as important in bringing home the bacon.
I did brilliantly in Julius Stone's class.
He thought I gathered my wisdom from his book. I never had the heart to tell him that it was actually from
Another lesson Ray Burke taught
me was of the importance of choosing good barristers
and of the impact which a conscientious and persuasive
advocate could sometimes have in rescuing cases from
the brink of doom.
In those days we briefed many wonderful advocates
from whom, with Ray Burke, I was to learn much about
the art of persuasion and good time management. Frank
McAlary, Frank McGrath, Noel Westcott, Tony Harrington,
Neville Wran and Barrie Thorley were much in demand.
They were pitted against big talent on the
Gordon Samuels, Ted Lusher, Jack Slattery,
Jim Baldock, Tony Collins, Adrian Cook and the youthful
Cedric Cahill, who had at one stage been in
partnership with Mr Simon as a solicitor, was briefed
if the case from our firm ascended to the Supreme
he was led by Jim Staunton QC or by Tony Larkins QC,
John Newton QC or Marcel Pile QC.
These were barristers of the old school.
They were nurtured in the days when jury trial
was much more common than it is now. And if the case was truly big, Mr Eric Miller QC himself
was briefed for his unerring skill in lifting each
and every stone in the case. He unleashed a war of attrition against all defendants in which
the motto was:
"Take no prisoners".
Sometimes I accompanied Ray Burke
But generally he left his clerks to assume
their own responsibilities.
He was not a stern taskmaster.
A life in the world of litigation was a happy
and hectic experience working with him.
Very occasionally, as in McLellan v
Bowyer (1961) 106 CLR 95, we ventured together
into the mysterious world of the High Court, then
housed in an annex to the court complex at Darlinghurst.
To M A Simon and Ray Burke an appeal to the
High Court was absolutely a last resort.
It was a sign that all of their beguiling attempts
to settle and compromise the case had come to naught.
The insurer was being "bloody minded".
And the main danger was not that the case might
be lost. In
those days a loss for a worker in a compensation or
damages case in the High Court was absolutely no surprise.
The real peril, as Ray Burke would explain
it, was that you never knew how the High Court would
confound the law and throw confusion upon uncertainty,
wrapped in obscurity.
It is fortunate, as I am sure you will agree,
that things have changed so much since those far-off
first judicial appointment was in 1974, a little more
than a decade after I had left M A Simon and Ray Burke.
It preceded his judicial appointment by eight
years. I therefore never had the pleasure (for that it would have
been) to appear as an advocate before Judge Burke.
When, after a sojourn in the Law Reform Commission
and other places, I took my seat in the New South
Wales Court of Appeal in 1984, quite often his judgments
would come to that Court.
As I read them, I could hear him speaking in
his own characteristic way.
He disdained many of the tedious conventions
of judicial opinions.
Typically, he would rush straight to the essence
of the matter in contest.
Or he would reflect on the peculiarities of
the case or the inconsistencies of appellate legal
instruction on the point for decision.
I have been told (I am sure that it is quite
false) that he would deliver ex tempore reasons, staring at a pencil as if waiting for inspiration.
After two weeks hearing a native title appeal,
I long for that magic pencil.
As I would read Judge Burke's reasons,
I realised that nothing much had changed in the interval
since our professional parting of the ways.
If I were to classify him, I think his judicial
reasons were most similar to those of Judge Rainbow.
They were direct, forcefully expressed and
Unlike Judge Rainbow I never got the feeling
that Ray Burke became bored with his life as a judge.
To him the puzzles of judging continue to be
just that. Puzzles
Ironies in resolving conflicting testimony.
Dilemmas in elucidating uncertain principles
of law. Wry
humour revealed by the cavalcade of human foibles.
Total honesty, above all, to himself.
Reluctantly obedient to binding legal principle.
But never excessive deference.
And sometimes robust criticisms of the legal
centurions put in charge.
If one word shone through his opinions
it would be honesty.
Honesty in a judge is a wonderful quality.
It comes with the three essential elements
of the judicial life.
These are reflected in the international statements
of human rights.
They are found in the principles of the common
are probably implicit in the Australian Constitution
have been practised over eighteen years by Judge Burke.
Professional competence and diligence.
after a lifetime in the law, most of it devoted to
the specialist field of workers' compensation, Ray
Burke is about to lay down the judicial mantle.
He will be missed. His life has been blessed with professional success.
More importantly, he has shared it with a loving
wife, Patricia, and with his family.
His life has been touched with great personal
tragedy that his friends have shared with him.
But through it all he has been given strength
by the faith he learned at "headquarters".
More significant than his instruction to me
about the law, about evidence, about client psychology
and even judicial idiosyncrasies was the instruction
he gave about the integrity that is central to our
functions as lawyers.
In most countries of the world
you cannot go to a judge and be sure that he or she
is uncorrupted, is competent, independent and impartial.
But in Australia these are still the norms.
They are true of the best that the legal profession
offers, not only on the Bench but through all its
When he is freed
from judicial restraints, Ray Burke will probably
feel entitled (even more than in the past) to dissect
the humble writings of his one-time clerk.
And to blame the old gentlemen and lady of
the High Court for mucking things up.
Do so, Ray Burke.
It is your entitlement as an Australian citizen.
Until now, you have been under the disciplines
of office, (although that burden was for you, I realise,
from such disciplines you can set your lively intelligence
loose on larger puzzles and greater mysteries.
Frank McGrath on his retirement returned to
Williams, on his, pursued philosophy.
Who knows where Ray Burke's imagination will
Wherever that may be, his friends
will be close by with helpful advice and criticism,
just as lively as that which he dispenses.
In the regular reunions of the M A Simon Old
Persons and in the boisterous and ever-growing academy
of lawyers trained in the demanding personal and professional
disciplines of the Compensation Court, his name will
long be honoured and his work acknowledged.
As his one-time articled clerk,
as a colleague in the law, as a fellow judge and as
a citizen, I express thanks for Ray Burke's life of
devoted service to the community.
If I close my eyes it seems but yesterday that
I was working with him in that little office in Hunter
Street, living off the boss's biscuits but never stealing
the postage stamps or the stationary.
Ramon Francis Burke.
Judge and citizen.
Servant of the law but of no man.
An Irish-Australian who was basically agin'
adapted himself to the law's ways.
And who made sure that the law did a bit of
adapting as well.