By William Birnbauer
Seven years ago I wrote a profile of Victoria’s chief justice, John Harber Phillips, but the comments of several Supreme Court judges and senior barristers were so critical that the article apparently would have “scandalised the court” if printed. It never saw the light of day because undermining public confidence in the courts is a serious offence.
John Phillips retires today after 12 years as chief justice and 45 years in the law. Opinions of Phillips, a careful, urbane man with a passion for music, theatre and history, are still divided. But maybe that’s not surprising in a field as cliquish as big-city law.
This week I went back to the transcripts of the interviews I did in 1996 with 13 Supreme Court judges and many senior Queens Counsel, and saw them in a new light. Many of the criticisms, by people not prepared to be identified, appeared snooty and waspish.
The critics said Phillips had made no significant rulings when he was a Supreme Court judge between 1984 and 1990. Phillips was not respected by other judges. He was no legal luminary. He’d confined himself to criminal trials and appeals. His 1991 appointment as chief justice was a complete surprise.
“I bet it was,” Phillips now says with a wry smile. A humble man, he avoids commenting on his own performance, preferring others to do so, even suggesting people to call. And after a career in criminal law, where facts speak louder than words or emotions, he never hurries to make a point or varies his monotonous style of delivery.
So when I raise the old criticisms again, his response is compelling. In 20 years, only one of his judgements had been overturned in the High Court. Not a bad record, he notes.
“I’ve never pretended to be a master of constitutional law or corporations law,” he adds. “I think there’s a segment of the profession who were surprised (at his appointment) because, according to their lights, I was not the ‘right sort’. I had never been to a public school.
“I was, worst of all, a criminal lawyer. I never had a practice centred around the big end of town. I didn’t move easily within the Melbourne establishment … so I just wasn’t your traditional chief justice.
“That segment had never accepted my appointment. And that’s all right.” Later, he says sotto voce: “We forgot to include among my aspects of disqualification for chief justice that I barrack for Collingwood. You’d better put that in.”
John Harber Phillips is Irish Catholic and an expert and author on Ned Kelly, which probably confirms his status as “not the ‘right sort’.”