Tom Hughes QC – Many Sides to A Character

For more that 30 years, Tom Hughes, a scion of a notable Sydney family of high achievers, was one of Australia’s top barristers, renowned, respected and sometimes eared for his dominating presence in the courtroom. Historian Ian Hancock is Editorial Fellow of the Australian Dictionary of Biography and author, most recently, of Tom Hughes – A Cab on The Rank. In an address to the Sydney Institute on Wednesday 13 July 2016, Ian Hughes gave a glimpse of a fascinating Sydney personality.

TOM HUGHES QC – MANY SIDES TO A CHARACTER

IAN HANCOCK

Tom Hughes, born in 1923, will turn 93 in November this year. He has lived a long and full life, and a very significant one, well worthy of a biography – and perhaps, later, having a lawyer as a biographer.

Tom has been totally co-operative and supportive. He gave me full access to his barrister’s fee books, to his intermittent but always frank and intimate diaries, to literally volumes of personal correspondence, to his numerous attempts at autobiography and to his briefing documents. Although there is a substantial public record of Tom’s various lives, the private records fill out, and amend, what is publicly available.

The obvious point to make is that Tom Hughes has undertaken a number of careers and, at times, conducted them simultaneously.

He was a wartime pilot who eventually captained a crew of 11 in Sunderland Flying Boats in No. 10 Squadron RAAF attached to RAF Coastal Command. His principal task in 1944-45 was to patrol the Bay of Biscay and prevent U-Boat interference with the Allied invasion of Europe. He had, what he called, “a relatively safe war”, spending part of it as a tourist soaking up the English countryside and visiting Oxford and the Old Bailey.

In 1949, after graduating in Law at the University of Sydney, he was admitted to the NSW Bar, took silk in 1962 and practised for just over six decades, retiring at the end of June 2012. For some 30 years, he was widely regarded by fellow lawyers as the leader of the NSW Bar and, allowing for provincial prejudices, the leader or a leading figure of the Australian Bar.

He also struck me, a non-lawyer, as very expensive. Take just one year. In 1979, Hughes received nearly $320,000 in fees (worth over $1.5m in 2016), and that is not taking account what was left over from retainers with Packer, Fairfax and other companies. In the mid-1980s, he was charging $3,000 a day; in the mid-1990s, he was asking for $6,000 a day; presumably, Gina Reinhart could afford the $8,500 a day he charged her in 1999.

In 1963, Tom was elected as a Liberal for the federal seat of Parkes, later moving to Berowra on the North Shore. From November 1969 to March 1971, he was the Attorney General in the Gorton Government. Dismissed as Attorney-General by McMahon in March 1971, Hughes retired from politics at the 1972 federal election. He returned, happily, to his great love, the law.

Tom bought a property, “Marsland”, near Goulburn, in 1972, added another nearby property – “Bannister” – in 1988, and now leases another block giving him just over 10,000 acres. Tom likens himself to an eighteenth century English sea captain: his spectacular earnings at the Bar enabled him to follow the practice of ships’ captains who used their prize money to buy English country estates. But he has never been a “Pitt Street farmer”: he got down and dirty, spending as much time as he could becoming what he calls as “a semi-skilled grazier”.

Tom’s other, and less successful career, was to buy and breed racehorses: he produced very few serious winners though he did, like so many barristers, develop a long standing attachment to horse flesh and the track.

Alongside his careers, Tom has lived many lives. He was brought up a Catholic by a deeply-religious father who presided, each day, over family morning and evening prayers, and by an English-born mother, a daughter of a Church England clergyman, who had converted to Rome at the behest of Tom’s grandfather. Tom’s religious beliefs were formal rather than emotional. Pope Paul VI’s Encyclical of 1968 reaffirming, among other things, the Church’s teaching on birth control, merely hastened his loss of faith. Tom returned to the Church, however, in the 1990s, courtesy of the Jesuit priest, Emmet Costello, whom a colleague called the “apostle to the silvertails”.

Tom’s lives included an ultimately failed marriage to the high-spirited Joanna Fitzgerald, the niece of the poet R D Fitzgerald, and a very happy marriage since 1981 to Chrissie Abel-Smith. In between marriages, he had several relationships. He is the tribal elder of an extended family which includes three adored children, one of whom he refers to as “darling daughter”, and includes his late brother, Robert, whom he admired mostly from afar.

Some of Hughes’ contemporaries at the Bar saw him as “Frosty Tom”: self-contained and distant. Some younger barristers dismissed his declamatory and theatrical advocacy as a relic of a disappearing era. Some of all ages thought the self-styled benevolent dictator who headed chambers was occasionally more dictatorial than benevolent.

Yet this was the same Tom Hughes who has always been generous in supporting charitable causes (including, I might add, the Liberal Party), and has been extraordinarily warm about, caring for and loyal to, his family, friends and acquaintances – indeed, to anyone who happened to be in trouble.

I should like to spend the rest of this talk looking briefly at five of the many areas that I thought needed elaboration in writing about Tom Hughes.

First, it is important to recognise that Tom’s direction in life was partially determined before he was born. Thomas and Maria Hughes and their six children were among 286 Government emigrants from the centre west counties of Ireland who arrived at Sydney in 1840 on board the SS Crusader. The vast majority of adult males were labourers; the vast majority of adult females were either dairymaids or servants. Thomas and Maria were different. In County Leitrim, Thomas was a farmer and Maria ran a shop. As Robert Hughes used to boast and insist, his ancestors were not “bog Irish”.

The first-born son of Thomas and Maria, John Hughes, starting work as a grocer, made a fortune buying and selling property in what is now Sydney’s CBD. Unfortunately, for the material welfare of the Hughes family, John, profoundly Catholic, gave much of his wealth to the Church both in life and in his Will. Tom’s great grandfather, in effect, provided the family with status on the margins of an Anglo-Scottish society, but no commensurate wealth.

Significantly, John Hughes, Sir Thomas Hughes, Tom’s grandfather, and Tom’s own father, Geoffrey, did not regard themselves as Irish expatriates. Three generations of the Hughes family became Australian Britons and Empire loyalists who did not feel deeply for Mother Ireland or spoke about throwing off the English yoke. The First World War was critical in linking the Hughes family to the cause of Empire. Sir Thomas Hughes, a solicitor, member of the Legislative Council and a former Lord Mayor of Sydney, had lost his elder surviving son, Roger, in France in 1916. His second surviving son, Captain Geoffrey Hughes, Tom’s father, won a Military Cross as a pilot with Britain’s Royal Flying Corps. Both men supported conscription in 1916-17. Both regarded the Easter Uprising in Dublin in 1916 as an act of treachery. Devout Catholics, they nonetheless rejected the Irish priests and prelates in Australia who identified with the rebellion and opposed conscription.

Tom, therefore, was born into a family who regarded Australia as home. In fact, he has been to the Ireland of his ancestors just once in his life. Flt Lt Hughes spent a day and a night in Dublin immediately after the end of the Second World War, and after attending a week-long course in Northern Ireland. He recorded the important details of his visit in his war diary. That is, the airman who had been living in a Mess and eating English cooking sat down to a meal of crab cocktail, soup, an enormous steak, followed by Peach Melba and “real whipped cream”. Clearly, Ireland was not relevant to Tom’s sense of identity or of belonging.

The second point I want to make, is that throughout much of his life he benefited from having good connections. His father, Geoffrey, the decorated pilot, became a leading and highly respected figure in the aeronautical world of the inter-war years. He joined the RAAF at the outbreak of the Second World War, and rose to be Group Captain after running a training establishment. His standing and his contacts ensured Tom’s immediate promotion to authority over other recruits when he joined the RAAF in 1942. As Tom did not inherit his father’s skills as a pilot, Geoffrey’s connections had to intervene to save him from being “scrubbed” as a flyer. One connection in England placed Tom in his preferred Coastal Command and its flying boats rather than Bomber Command with its reduced chances of survival.

When Tom was admitted to the Bar in 1949, his father and family friends helped him with contacts, and with getting chambers as well as briefs. Later, when he went into politics, the Liberal Party headquarters in Sydney ensured his pre-selections. When he left politics, lawyers like Bill Deane made sure he found chambers in Phillip Street.

Tom Hughes’ connections protected him or set him up but, like the servant of St Matthew’s Gospel who traded the five talents his master gave him to create five more, Tom succeeded in his careers because he built upon his inheritance and outside intervention. He has been a prodigious worker all his working life: punctual, punctilious, thorough, giving of his very best for every client, while capable – win, lose or draw – of shutting down once a case was closed.

The third area I want mention is the way in which Tom managed to separate his professional and personal lives. There were long periods in the 1970s when the uncertainties in his personal life might well have damaged his professional career. He did not allow them to intrude. For almost the entire decade after he was divorced, he enjoyed relationships with younger women, each of whom he saw as a potential life partner. He was desperate to replicate the marriage of his adored parents.

Throughout this time, one relationship maintained a presence in Tom’s life even when she was not present. On meeting Kate Weigall in 1971, Tom found her to be a “great beauty”, “off-beat” and “my first great love”. He encouraged and supported her career in the law, wooed her with passion and persistence, and tried to persuade her to settle with him. Kate did not, or could not, respond as he wished, which was probably just as well. Tom’s young “darling daughter” was one who saw that Kate and Tom simply did not “belong”. But their association had consequences, one of them led to Hughes walking out of 11 Selborne Chambers in 1977 when he encountered widespread opposition on the Floor to his decision that Weigall should have a place there.

Importantly, however, for all the angst and unhappiness Tom recorded in his diaries, the 1970s was the decade when his standing as a barrister literally zoomed.

The fourth area concerns politics.

The Liberal Party wanted Tom Hughes for Parkes in 1963 because, at least notionally, he was a Catholic in a seat where Catholics formed a significant minority. Les Haylen had held Parkes for Labor since 1943. With the support of John Carrick, the Party’s General Secretary, and John Howard, the 24-year old president of the local Liberals, Tom won the preselection despite announcing that he had no intention of living in the electorate. Apart from anything else, he did want to move house and family to a marginal seat he could lose at the next election. Joanna had her own objections: her view was that if you want boring, try Earlwood.

Tom conducted a campaign against “Left-Wing Les” that he later described as “crude, rude and thoroughly aggressive [and] obnoxious”. There was the one-off publication, the Parkes Examiner, complied by Hughes, Howard and Clyde Packer, and printed by the Packer press. It carried a cartoon drawn by Robert Hughes depicting Haylen and Chairman Mao, arms around each other, dancing the so-called “Peking Two-Step”.

In Parliament, Tom, the “Cold War warrior”, became a combative backbench supporter of the National Service Act and of Australia’s military commitment in South Vietnam. Howard rightly described him as “right out of national security central casting”. Less noticed, this grandson of a strong supporter of the anti-socialist free trader, George Reid, argued for effective trade practices legislation so that free enterprise would be truly free, and opposed attempts to regulate the price of wool, thereby placing Tom in sharp opposition to Malcolm Fraser.

By the end of 1969, with the Gorton Government planning a withdrawal from Vietnam, as Attorney-General Hughes had responsibility for dealing with breaches of the National Service Act and came under pressure from his own side to crack down on demonstrators and draft resisters. He infuriated conservatives by refusing to act on politically sensitive issues where cases might not stand up in court. When introducing the Public Order Act he said it was to “clarify, to simplify and, in important respects, to mitigate the severity of the law concerning assemblies of persons in areas of Commonwealth legislative responsibility”.

Hughes had his own confrontations with demonstrators, most notably on Sunday 16 August, when he confronted protestors outside his house in Bellevue Hill. For someone who had been a brilliant middle distance runner in his youth, and once had a single-figure golf handicap, this was his opportunity to show he could hold a cricket bat. One expert was not quite sure about his approach. Jack Fingleton, the former Australian opening batsmen of the bodyline era, sent the following message to the Attorney-General: “Footwork magnificent – cannot be faulted. Grip with bat just a little suspect. Perhaps hands should have been closer together although gap is permissible if stroke is improvised.”

Hughes compounded his felonies in the eyes of the Liberal Party’s conservatives in three other ways. First, he had the temerity to suggest it was time to rethink laws in relation to homosexuality, leading some in the Coalition to regard him as an enemy of Christianity and a threat to Western Civilisation. Secondly, he became the legal arm of Gorton’s determination to give the Commonwealth exclusive authority over the territorial sea as well as the continental shelf, thereby putting Hughes offside with the Liberal Party’s State rights brigade. Thirdly, Hughes led for the Commonwealth in the Concrete Pipes Case where he successfully argued for the extension of the corporations power. Many in the Coalition believed that this power could be used to advance socialistic intervention in the economy.

The “troglodytes” as Tom called them had their revenge. After McMahon replaced Gorton in March 1971, he sacked Hughes as Attorney-General in what Howard called “an act of malicious spite”.

Nevertheless, Tom’s brief spell as a minister had important implications for his legal career. Those in the Labor Party who paid attention realised he was attempting to be a non-partisan Attorney. This approach, together with his marked shift from Cold War attitudes and with the cab on the rank rule, made him acceptable to former political opponents. Among others, he later represented Whitlam, Rex Connor, Neville Wran and Lionel Murphy.

Tom has changed in other ways from the 1960s. He moved to small “l” Liberal positions within the Party’s broad church, supporting Tony Abbott’s moderate opponent for pre-selection in Warringah. He became a republican, convinced that the imperial connection, which mattered to three earlier generations of his family, had outlived its time.

Incidentally, he was heading in that direction long before his son-in-law led the Australian Republican Movement.

Tom Hughes is nothing if not loyal, and is not inclined to namby-pamby language. When, in 2009, Abbott defeated Malcolm Turnbull for the Liberal leadership, Tom spoke his mind in a letter to Robert Hughes. Some of you will already know the words he used: to elect Abbott, he wrote, “is the equivalent of putting the bull in charge of the china shop or the principal lunatic in charge of the asylum”.

The final area I want to discuss is the law.

One feature that stands out is Hughes’ distinctive style of advocacy. Standing erect, immaculately turned out in wig, gown, collar and jabot, with one hand resting on the lectern, his head and body turned side-on to the witness, his stare fixed towards a high point at the rear of the courtroom: his very presence foretold dominance. Á journalist described his style as “declamatory and theatrical, full of hectoring flourishes, airy swoops and lethal pounces”.

Michael McHugh, the former High Court judge, whom Tom considered his best friend at the Bar, reflected a general view when speaking at the lavish and well-attended party organised by the NSW Bar Association to mark Tom’s 90^th birthday. McHugh said Hughes,

embodied the public’s perception of the great advocate – dashing, dominating, charismatic, patrician and handsome – equally at home cross examining a cowering witness or addressing a jury or the High Court or the Privy Council. As an advocate, he was an elemental force of nature. In court, he was a sight to behold with his sculptured jaw, his icy stare at a dissembling witness and his habit of wheeling around to face the back of a court after he asked a question, a habit which a journalist once described as “a menacing pirouette”. When addressing the court, he would stand like a nineteenth century actor, extending one arm in front of him with the other arm behind his robe at his back.

Former Chief Justice Sir Anthony Mason explained some of the means at Hughes’ disposal: the “arresting, even archaic, language”; the “imposing presence and voice, evocative of the image of an aristocratic Guards officer”. Ian Harrison SC, later a President of the Bar Association and a judge of the Supreme Court, delivered a witty and creative “roast” at the celebration of Hughes’ 50 years at the Bar. Harrison observed that Hughes’ technique of cross-examining witnesses by standing side-on, and staring towards the back of the courtroom, “has unintended consequences. Members of the public gallery often break down and answer his questions”.

Tom’s technique, his style, came about because he did time in the rough and tumble of petty sessions and the district court in the 1950s. He learnt by getting his ears boxed in the lower courts by senior juniors, and by observing the best of the barristers of the 1950s. More importantly, he settled on what actually worked for him.

Tom also developed very clear ideas of what qualities an advocate should possess, and they reflected to an extent the strong moral compass he inherited from his father: honesty, integrity, courtesy towards the judge and one’s opponents, a work ethic. Hughes was especially taken by Sir Owen Dixon’s notion that advocacy “is tact in action”, which he interpreted to mean “the intuitive perception of the right thing to do or say and adroitness in dealing with persons or circumstances”.

Hughes was not just concerned about codes of personal behaviour. He respected the processes of the law. Cases should not be decided outside of the evidence. Trials and appeals should be conducted according to the rules. Dyson Heydon believed that Hughes “liked the integrity of the process”. Tom’s diaries and letters are full of commentaries about judges who failed to meet his high standards. Hughes said of one judge that it was impossible to say anything laudatory about someone who “was cordially disliked because he was ill-tempered, discourteous, suspicious and slow”.

It should be stressed, as Mason did, that, unlike some exceptional advocates, Hughes “was also a good lawyer”. For that reason, “he was at home in any court, including the High Court where he argued constitutional questions with great ability”. Hughes had made his own contributions to precedent and statutory interpretations. He was also an all-rounder who could occupy several places as a specialist, and before specialism became the norm.

One of the striking features of Hughes’ career is that it belongs to a period of time. He was perhaps the last of the traditional barrister class. It was hard enough for him when the big legal firms decided not to take defamation issues to court, or when he had to move chambers again to get himself more cases in commercial law. The really hard part was the arrival of mediation and of changes in the way of doing business, and its accompanying jargon. One of Ian Harrison’s fictional flights had perhaps the intended consequence of demonstrating that his subject appeared to stand apart from, as well as above, the modern Bar.

I thought I’d check . . . to see if he was keeping abreast of state-of-the-art contemporary forensic concepts. I asked Tom “What do you understand by the term case management?” “My boy, that’s what the porter at the Dorchester does with your luggage when you arrive.” I thought I’d take a chance. I said “Well, what about differential case management?” Tom replied: “That’s just an instruction to the porter not to get my bags mixed up with those of my wife.”

Like his theatrical performances in the court room, Hughes had a great sense of timing in being President of the NSW Bar Association between 1973 and 1975. Serious questions were being raised about the Bar Association acting as a closed shop for self-regulation, a version of a medieval guild. Questions were also being raised about the two-thirds rule and the requirement for a QC to be accompanied by a junior. But this was the time for asking questions; the time for imposing answers came later. No one worried much then about accountability and, as for appointing silks, Hughes and few senior QCs organised all that by consulting each other and making a list of recommendations. A President could, at that time, have a chat over a drink to settle ethical issues with difficult barristers.

The world Tom entered in 1949 had survived into the 1970s, sufficiently so to allow him to focus on being a fully occupied working barrister. And, though the world around him would change, he remained, in the words of the current CEO of the Bar Association, an elder statesman and ‘an icon of the Bar’. The Hon. Tom Bathurst, who had been one of the leading commercial silks in Australia, wrote to Hughes on 9 June 2011 in response to Tom’s letter congratulating him on his appointment as Chief Justice of NSW:

Like many of my contemporaries I sought to model myself on you not only in relation to your outstanding forensic and legal abilities but also the dignity, honesty and integrity you brought to any matter in which you appeared. The profession has every reason to be grateful to you.