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Farewell Justice David Ashley


Cite as: April 2012 86 (04) LIJ, p.27

Justice David Ashley retired from the Court of Appeal of the Supreme Court of Victoria on 1 February 2012. Among the speakers was LIV president Michael Holcroft. This is an edited version of his speech.

I appear on behalf of the LIV and the solicitors of this state to pay tribute to your Honour’s service in the law over many years.

Your Honour was educated at Melbourne Grammar School and at the University of Melbourne. You graduated with an honours degree in law and served articles with Don Chisholm of the firm Maddock Lonie & Chisholm – now Maddocks. Your Honour had the experience, as an articled clerk, of assisting in major common law cases, and working with and seeing counsel of the highest calibre.

Your Honour worked as the assisting articled clerk with William Crockett QC leading Barry Beach in the case of Tremain v Jones and Lilley – a major personal injuries motor car collision case in which the damages verdict was, at the time, the highest recorded in Victoria.

Shortly after completion of articles, you read with Barry Beach. And Mr Justice Crockett was the senior puisne judge when you came to the Court, and for your first several years on the Court.

The asbestos and mesothelioma cases in Western Australia are notable, not only in their ground-breaking results, but also because they are an extraordinary example of the joint commitment and dedication of your Honour as senior counsel with your instructing solicitors.

The journalist Ben Hills wrote in his book Blue Murder: “You could hardly cast an odder couple than David Ashley and Peter Gordon – the broad-ribbed, ruddie-faced “Westie” from the wrong side of the Maribyrnong River and Ashley, the lean elegantly dressed barrister . . . son of a doctor, honours degree . . . pictures of stud livestock from his country property decorating the walls of his Chambers”.

Your Honour was fully engaged with your instructors in the preparation of those cases. On Easter Sunday 1987, you flew out in the chartered planes with your instructors and a team of photographers, engineers, industrial hygienists and other experts to inspect the mine at Wittenoom. The mine had been closed since 1967 and the gates were chained shut.

It was “the lean, elegantly dressed barrister” – on this occasion, elegant in his moleskins – who observed, in the rather formal way your Honour has of putting things, that “the gap in the gate doesn’t seem prohibitive to entry” – and in you all went.

Having spent a tense day inspecting the deadly Wittenoom mine, you all later relaxed and unwound at the Roeburn International Hotel/Motel in the north-west coastal town of Port Sampson. After an extended evening of “unwinding”, it was your Honour who was up at 5.45 the next morning, banging on doors to get everyone up and into the charter planes so as to get back in time for you to get your connecting flight back to Melbourne. And, even then, you only made it by virtue of a “tarmac transfer” – the charter plane taxiing alongside the regular flight, and your Honour racing directly across from one to the other.

Throughout each of the Western Australian trials, your Honour spent the whole of each week in Perth – and each Friday there’d be the rush to the airport to make the 6pm flight – the next flight being the red-eye, midnight horror.

Your Honour was not a good passenger in those drives to the airport – “Get past him!” “Go through! Go through!!! It’s only just yellow!”

Your Honour and your instructing-solicitor driver were both nervous wrecks – until you got to a particular set of lights by a time that you could be confident of catching your flight. At that point, the Mr Hyde aggressive back-seat driver became, once again, the urbane Dr Jekyll Queen’s Counsel calmly discussing the progress of the case.

When you won the first Australian common law damages in negligence for mesothelioma in the 1985 Victorian case of Pilmer, you thought that was going to be the end of it – that all those asbestos cases that had been around for years would settle. Pilmer wasn’t the end; it was just the beginning.

Your 1988 LIJ article on the August 1988 judgment in Heys and Barrow concluded with: “Some day it will all end”.

More than 23 years later, one of your Honour’s last cases – sitting with Justices Nettle and Redlich – was a James Hardie appeal in a mesothelioma case. And there’s a special leave application against your Honours’ 22 December 2011 judgment dismissing that appeal.

It is a measure of your commitment to your clients – and your instructing solicitors – that you even offered to decline the offer of appointment to this Court. The offer came on the eve of trial in the first case, worldwide, of a haemophiliac suing the Red Cross and others in negligence for HIV contracted from infected blood product – a massive case in which your Honour had been one of the lead counsel.

With characteristically scrupulous propriety and, if I may say so, generosity, your Honour offered to your instructing solicitor that, if he felt that his client’s case would be inappropriately prejudiced by your eleventh-hour withdrawal, you would decline the offer of a place on the Court.

Your Honour’s passion for justice remained with you throughout your years on the Bench. You never lost that passion. Your Honour has been an outstanding barrister, an outstanding judge, both in the Trial Division and in the Court of Appeal.

On behalf of the LIV and the solicitors of this state, I wish your Honour and your wife Jenny all the best in your retirement.


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