SPECIAL SITTING TO WELCOME
THE HONOURABLE SAMUEL JOHN DOYLE
ON HIS APPOINTMENT
TO THE SUPREME COURT OF SOUTH AUSTRALIA
Court 8, Sir Samuel Way Building
Friday, 5 February 2016 at 9.30am
Mark Livesey QC
1.
May it please the Court.
2.
It is a great honour to represent the Bar at this morning’s ceremony.
3.
Your Honour has been a fine servant of the South Australian Bar, assisting as secretary
between 2008 and 2010, and more recently as Vice-President. We are very sorry that
you will not be in a position to succeed Mr Andrew Harris QC as President later this
year. It has been said that whilst you would have made an excellent President, you will
undoubtedly make an excellent judge.
4.
Federally, you have served on the Media Law and the Competition and Consumer Law
sub-committees of the Law Council of Australia
5.
I have known your Honour for the better part of 20 years, and have never been other
than impressed by your intelligence, capacity for sustained hard work at a high level of
competence, your loyalty, innate fairness and fine sense of humour.
6.
Having said those things, I was concerned about what else could usefully be added this
morning.
7.
Frankly, my concern was only reinforced when I spoke to your father. The only
positive comment he was prepared to make was that he regarded you, at least generally,
as ‘methodical’.
8.
I kept digging, and to my relief, got past the rather anodyne compliments we all
associate with you. You know the sort of thing: ‘he’s such a good lawyer’, ‘he’s really
nice’.
9.
In fact, I was surprised at just how eager a number of many were to provide a great deal
more, well, information. I regret to say that there are large numbers of people who are
thoroughly fed up with your persistent capacity to make them look bad by comparison
with you.
2
10.
This phenomenon is of long-standing. As the second of five children to Marie and John
you are said to exhibit classical ‘middle child syndrome’ traits. Since you were a
toddler you have been seen to placate, negotiate and mediate. All with great tact,
compassion and intelligence. These skills were no doubt of great benefit in a large and
busy family, and they will undoubtedly be of use to you in your own family, as well as
on the bench over the next 27 or so years.
11.
Nevertheless it is only right to point out that middle child syndrome, whilst not actually
a "clinical disorder"1 has its genesis in the child’s feelings of exclusion,2 and, according
to the authors Gore and Kotin, without any "clear role" in the family,3 the child must do
more to get attention.
12.
Now, of course, there’s nothing necessarily wrong with attention-seeking.
13.
Performing the important role of family mediator is one by-product.
14.
Excelling at school and university is another. Few could hope to emulate your
Honour’s outstanding achievements at St Ignatius College, and later in law at Adelaide
and in the BCL at Oxford. At both you were awarded first class honours.
15.
At University your meticulous preparation was legendary. Yours were the best notes.
There was a keen secondary market for them. They were even colour coded: red for the
ratio and green for the obiter. Perhaps your fellow judges and the State reports editor
could consider switching to colour.
16.
These meticulous habits have remained with you. You are frequently seen sporting a
very fine pencil case which accompanies you to Court and the two or three cafes at
which you seem to conduct your busy practice. I’d always assumed your habit of
working in cafes was part of a careful plan to avoid the telephone, but it does seem that
this may simply be more attention seeking.
17.
But being noticed amongst the talented Doyle clan requires more. And this is where it
gets interesting.
18.
At University you were an integral part of the Gerard Stone Appreciation Society. For
the uninitiated Dr Gerard Stone was for a time a 5AA midnight to dawn radio
announcer who took talkback radio calls. You and other undergraduates circulated a
list of random words or phrases before the show and marked each other on calls made
to the hapless announcer. The more ridiculous the topic, and the more innane words
and phrases used, the higher the score. A premiership table recorded that you were
frequently near the top.
1
Guarendi, Raymond N. (1985). You're a Better Parent Than You Think!: A Guide to Common-Sense
Parenting. Prentice Hall Press. p. 83. ISBN 0-671-76595-7.
Bracy, Earl E.; Alexander, Tyesha (2013). The Middle Generation Syndrome: (A Throw Away Society).
Dorrance Publishing. pp. 145–146. ISBN 978-1-4809-0008-0.
Gore, Janet L.; Amend, Edward R. A Parent's Guide to Gifted Children. Great Potential Press. pp. 197–
198. ISBN 0-910707-52-9.
2
3
3
19.
You were good enough to make a full confession to Dr Stone some years later when
you invited him to give the main speech at a black tie dinner you organised to raise
funds for St Patrick’s Special School in Dulwich.
20.
Another aspect of your love of the ridiculous was your habit at university of asking
confusing questions of retailers, one example being your usual Hungry Jack’s order:
“I’ll have a whopper, no bun please”.
21.
Another is the habit, now of very longstanding, of interjecting during speeches. It is
surprising your Honour has managed to refrain from doing so this morning. To the
bewilderment of your family and friends the usual phrase, used incessantly, is “Stand
up”. Just why this phrase is used remains a mystery. Particularly as you use it even
when speakers tower over you.
22.
Few realise just how competitive you are. Not in any negative or simplistic way. And,
I hasten to add, you have never used your considerable talents to undermine or belittle
those many of us less fortunate. Whilst you have many natural talents, your success has
been the product of hard work, improving on your strengths and overcoming your
perceived weaknesses.
23.
In this competition has been integral. You enjoy if not relish the prospect of setting
yourself a challenge and meeting it, particularly when pitting yourself against others.
24.
Nevertheless there have been set-backs, including the loss of your first real job.
25.
I first encountered your Honour in the mid-nineties when you were the bespectacled
new associate to the Honourable Bruce Lander QC, then a member of this Court, later a
member of the Federal Court, and now the State’s first Independent Commissioner
against Corruption. The Commissioner is known for many things, including a love of
red wine and plain speaking. One night was considerably longer than most. As usual,
the Commissioner turned up early the next day and set to work.
26.
Your Honour was unaccountably delayed. When you did manage to get to your desk,
just after the usual start time, you were greeted with a note in Commissioner Lander’s
distinctive handwriting: “If you play up, you turn up. You didn’t. You’re sacked”.
27.
Your desire to compete has been apparent in your longstanding interest in and love of
sport. According to your family, this has been despite you having no ability
whatsoever, overcompensated for by fierce determination.
28.
You are a keen supporter of the Norwood and Adelaide Football Clubs.
29.
Your efforts in cricket were punctuated by bruises sustained when, as a slips fieldsman,
you managed only to stand in the path of numerous chances, without ever managing to
get your hands to the ball, before it thudded into your sternum, or some other equally
painful part of your body.
4
30.
As a cyclist you too have joined the large peloton of middle aged men in lycra. Despite
having all the gear – you remain unable to change a tyre and usually resort to taxis in
the event of a puncture.
31.
You are famous for efficiently managing your time. Quite apart from juggling the
demands of a busy, brutal law practice, you are careful to preserve time with your own
family. Friends wanting to jog, swim or cycle are allocated set times when you are
available. Typically 5.30am on a weekday. On weekends you are even more frugal. A
regular interstate golf weekend with school and university friends involves you
catching the last flight out of Adelaide on a Friday night, managing to make the final
part of the opening dinner, and then the first flight back to Adelaide on the Saturday
morning.
32.
We have heard about your efforts in marathons. The mere fact that you have run them
says a great deal about your capacity for preparation, as well as your determination and
desire to compete.
33.
These included your entry into a half marathon in 1996. The night before you rang
your fellow associate, Sam Abbott SC, and suggested that the full marathon was
preferable. As the novice, he agreed. At the start line your preparation was apparent
when you carefully tucked a $20 bill into your shorts. When the gun sounded you and
Abbott made for the head of the pack, after which you were soon parted. Some hours
later he crashed over the line and was wrapped in a space blanket by paramedics. You
sauntered over to offer assistance and, incidentally, helpfully explain that you’d used
your $20 note wisely: after cramp set in you hailed a cab and rode in that to the finish
line.
34.
Much later, your marathon preparation became even more idiosyncratic. As you lined
up for the start of a more recent marathon you were seen to put earphones into place.
You were asked what was on your playlist. Your reply, with a perfectly straight face,
was that you were about to listen to a lecture on Ancient History.
35.
This lecture may have been part of the university course you have been undertaking
with your father, the Honourable John Doyle AC, Tom Besanko and his father the
Honourable Justice Tony Besanko (presently a member of the Federal Court), through
Macquarie University over the last few years. As at today six subjects have been
completed, ranging from Alexander the Great and the Hellenistic Age, to the Worlds of
Early Modern Europe. I am reliably informed that there is keen interest in the
published results, notwithstanding feigned indifference by the two older students.
36.
You at times have been keen to point up failings in your father’s literary style, his over
use of short sentences, and his reluctance to use the footnotes his lecturers expect. The
youngest student well expects your Honour’s own results to slip given this
appointment, ensuring that he will continue to comfortably lead the pack.
37.
One aspect of your Honour’s practice which warrants recognition, is the incredible
variety of matters in which you have appeared. Against the trend now firmly
established, here as well as elsewhere, you have shunned specialisation and a narrow
focus on the most lucrative work.
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38.
After your associateship you worked in the commercial litigation team at Fisher
Jeffries, albeit that you also took on defamation and other cases. This was an
impressive team, which included Skip Lipman and Jason Karas (now of Lipman Karas
with offices in Adelaide, Hong Kong and London), the Honourable Justice
Malcolm Blue, the late Nick Bampton, Nick Linke and Mark Hoffmann QC. Their
cases included the behemoth Duke Group and Southern Equities (or Bond Group)
litigation.
39.
In this environment your skills shone and you were soon regarded as hard working and
able to produce clever written work. I recall being given an outline you drafted for our
appearance in the Bond Paintings bias hearing before the Full Court, and struggling to
see what needed settling.
40.
You made a number of friends who shared your sense of humour, sometimes at your
expense. During this time Judge Lunn QC as Supreme Court Master was terrifying
practitioners with his demand that they advise in writing about the progress of their
cases. One of your colleagues submitted a memorandum in your name, but without
your knowledge, to this effect: “My dad is Chief Justice, pull your head in”.
41.
At Fishers you had a number of High Court appearances, including as junior to the
Honourable Justice Tom Gray in Cheng v R (2000) 175 ALR 338 (a criminal law case
involving a constitutional law point) and in Pilmer v Duke Group (in liq) (2001)
180 ALR 249 (where the controversial question whether a share allotment might sound
in damages was decided adversely to your client).
42.
Later High Court appearances include cases with:
43.
42.1.
Dick Whitington QC in Channel Seven Adelaide Pty Ltd v Manock (2007)
232 CLR 245;
42.2.
Michael Abbott QC in Amaca Pty Ltd v Ellis (2010) 240 CLR 111;
42.3.
Bret Walker SC in State of South Australia v Totani (2010) 242 CLR 1;
42.4.
Marie Shaw QC in Huynh v R; Duong v R; Sem v R (2013) 295 ALR 624
According to Justice Kirby the Manock litigation epitomised why defamation is the
"Galapagos Islands Division" of the Australian law of torts, which had "evolved all on
its own" and "created legal forms and practices unknown anywhere else", with your
pleadings work being described:4
as complex, as pedantic and as technical as anything known to Dickens.
4
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, 294; Ipp, “Themes in the law of torts”,
Australian Law Journal, vol 81 (2007) 609, at p 615; Australian Law Journal, vol 81 (2007) 609, at p 615;
Burrows v Knightley (1987) 10 NSWLR 651, 654.
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44.
Between Fishers and joining the Hanson Chambers in 2002 you were a member of the
team assisting the HIH Royal Commission, where you impressed Commissioner
Neville Owen and Chief Justice Wayne Martin, who as a busy silk later insisted on you
being briefed as his junior.
45.
A clear sign of the respect with which you are held are the briefs for Google in the
defamation litigation in Adelaide and Melbourne, and your role in assisting to work up
the Bell Group appeal.
46.
Along the way you have featured in the Harris Scarfe audit litigation, the Eyre
Peninsula bushfire inquest, cartel cases in the Federal Court and the Sands, Conroy
Meats and Cornes v Molloy defamation cases. You have been counsel of choice in
many cases for Law Claims, defending other lawyers. You have also appeared for
many individual clients in both civil and criminal cases. You recently led your brother
Ben Doyle (of Hanson Chambers) before the Victorian Court of Criminal Appeal in a
successful appeal against conviction.
47.
That your Honour has managed to achieve so much is impressive. That you have done
so maintaining the respect and admiration of the judges and barristers you have
appeared before, with and against, is remarkable. Will Houghton QC of the Victorian
bar is an example. He has been good enough to travel to Adelaide today for this special
sitting. Indeed your sister Rachel Doyle SC, a member of the Melbourne Bar, is often
told by your leaders, juniors and opponents how impressive, easy and ‘low key’ you
are: “He’s not at all like you, Rachel”.
48.
Not all silks have been grateful for your assistance. One Saturday before a hearing in
which you were led by the legendary Tom Hughes QC, you arrived to work up the
matter, after school sport, and cheerily asked Tom how his morning’s work had been
going, to which he responded icily: “solo”.
49.
This marks a deeper issue: your commitment to your family. You undoubtedly owe a
great debt to your family. You have been superbly supported by your wife, Susannah,
with whom you are blessed with four daughters, Lucia, Phoebe and twins Imogen and
Jemima. Today is undoubtedly a very proud moment for you all.
50.
Nevertheless your efforts for your family have not gone unnoticed. You regularly put
yourself out, assisting with the myriad duties required with your children, as well as the
needs of your parents, your siblings and their children. There has even been the
occasional foray interstate to assist a sibling in need.
51.
These efforts have borne real fruit, and loyalty in return. One example bears repeating.
One day you were stationary in traffic. You touched the screen of your mobile phone.
Immediately you noticed blue uniforms in a police car nearby. The flashing lights
came on and you pulled over. To your surprise the officers were not much interested in
your preparedness to debate the finer points of the Road Traffic Act 1961 and Justice
Gray’s interpretation of it in Burns v Police (2007) 249 LSJS 61; (2007) 48 MVR 149.
7
52.
It has to be said that your discussion gave the officers ample grounds to impose the
usual fine. You received a traffic infringement notice. Whilst that would not ordinarily
have been a matter of note it was, unfortunately for you, at a time when your parents
had agreed to collect your mail. The official looking letter was accidentally opened by
your mother. Interrogation followed. The confession, when it came, was along the
lines of an admission that you had only touched the screen of a mobile phone to see
whether your wife had called. There was, you maintained, no intention to use the
phone and certainly no risk of danger to anyone.
53.
These submissions impressed no-one. However they did prompt your daughter Lucia
to write a letter to the Police Commissioner. Whilst a splendid example of her loyalty
and faith in you, it is fortunate that it was never sent: it’s unlikely that you would have
been assisted by a letter threatening the officers concerned, and signed off by “the
daughter of the man who used his phone”.
54.
Your Honour has a real knack for becoming implicated in awkward situations. There
are many examples.
55.
As is now common, your Honour was required to submit to a blood test in connection
with an insurance application. To your relief, the nurse offered to see you in chambers.
Your door was open as members walked past, to and from their rooms. As blood was
being drawn, and as your face lost all colour, you mentioned your queasiness at the
sight of blood. Particularly your own blood. Unfazed, the nurse instructed you to lie
down on the floor of your room. You did so obediently, but on your back with your
hands and feet outstretched into the air.
56.
To this day you maintain that she instructed you to lie down in the “beetle position”.
57.
You have always denied that she used the words “the foetal position”.
58.
It is difficult to know whether the reticence of the members of Jeffcott Chambers to
discuss this incident is a sign of their loyalty to you, or simply an indication of just how
bizarre is the behaviour routinely seen in that part of Gouger Street.
59.
Your Honour loves parties. Over the years there have been many. Indeed, there is one
tonight for Susannah. Your love of parties is matched by your enthusiasm on the dance
floor. For decades now no-one quite knows how to categorise your idiosyncratic dance
action. Some claim that it resembles a disabled Cossack. Others describe a snapping
crocodile or a man confused between break-dancing and silent mime. All of these
descriptions were used when, in a florid red suit, you scared the children at your own
birthday party a few years ago.
60.
Perhaps the red suit was prescient. Who knows, it may even catch on amongst your
fellow judges in the criminal court.
61.
Justice Doyle, it is a privilege to welcome you this morning. You have been one of the
real stars of the Adelaide Bar. News of your appointment has been extremely well
received. You start your new career with our very best wishes. Congratulations.
62.
May it please the Court.