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Maxwell’s House

Cover Story

Cite as: (2005) 79(9) LIJ, p. 18

Solicitor. Silk. Rhodes Scholar. Government adviser. Civil rights campaigner. New Court of Appeal president Justice Chris Maxwell brings impressive credentials to a court showing some growing pains.

The Victorian Court of Appeal has gone about its appellate business largely unnoticed since its inception in 1995.

Certainly, a public inured to media reports of court proceedings involving the grisly, the quirky and the famous has had little need to focus its attention on a court renowned for its intellectual rigour rather than sensational cases.

It is also a court relatively few legal practitioners have direct contact with as the hearings it holds each year number only a few hundred.

The Court of Appeal, housed in a sandstone building on Lonsdale Street and tucked behind the majestic arms of the Supreme Court, has a character that reflects its one and only president to date, Justice John Winneke: dignified, learned and respected.

So it was with some surprise that the Court of Appeal became the centre of attention – even if for just a few days – in mid-July with the retirement of its popular president and the appointment of barrister Chris Maxwell QC as his replacement.

Like his predecessor, Justice Maxwell was appointed a judge of the Supreme Court and president of the Court of Appeal straight from the Bar.

He was tapped on the shoulder by Victorian Attorney-General Rob Hulls ahead of other well-respected legal figures that were reportedly considered, including Court of Appeal Justices Geoff Nettle and David Ashley, and barristers Neil Young QC and Mark Dreyfus QC.

It is in no small part due to Justice Maxwell’s high public profile and career of outstanding achievements that the Court of Appeal had its brief time in the public sun.

Speaking to the LIJ on 14 July – two days before he was due to begin his new position – Justice Maxwell said he approached his latest appointment with great enthusiasm and some nervousness.

The former federal government adviser, Rhodes Scholar and Liberty Victoria president said the nervousness stemmed from “stepping into the unknown”.

However, he was quick to point out that the unknown in this case was not whether he could perform the tasks of a judge, but rather the nerves that appear whenever one moves into a new role.

Certainly, there is little doubt among leaders of the legal profession that Justice Maxwell has the attributes to be a successful jurisdictional head.

On announcing the appointment on 5 July, Mr Hulls praised Justice Maxwell’s character and ability and said he expected him to “continue to make an outstanding contribution to Victoria’s justice system”.

Law Institute of Victoria (LIV) CEO John Cain described the appointment as “inspired”.

“He has excellent credentials for the job, including a very diverse practice at the Bar,” Mr Cain said.

“He has got a nice balance between the hard black-letter law issues, as well as social justice issues. I think he will provide outstanding leadership in the Court of Appeal.”

Liberty Victoria president and fellow barrister Brian Walters SC said Justice Maxwell’s characteristics of legal acumen, a clear understanding of human rights and rare courage made him the perfect choice to replace Justice Winneke.

This is high praise and is beyond the usual platitudes trotted out for an appointment to the Bench. When asked whether the expectations may be too high, Justice Maxwell said no one’s expectations were higher than his own.

“I view the positive reception as an encouragement to trust my judgment and approach things as I always have: trying to call it as I see it, play it straight, talk direct.

“I don’t feel too heavy a burden of expectation because I suppose I feel confident enough now that if I put my mind to it, it should work out.

“What matters ultimately is my own expectation that I will set myself realistic goals and I hope that in the process I will satisfy what a lot of people want to be the future for the Court of Appeal.”

Justice Maxwell takes over the running of the Court of Appeal almost 10 years to the day since the court first sat.

Justice Winneke, a confessed opponent of the Court before he was appointed its first president, did a remarkable job establishing and consolidating a well-respected court. It is now Justice Maxwell’s role to improve on what has been left to him.

He made it clear that the plan he comes up with will be a mixture of “my own ideas and the ideas and aspirations of others”. Any change he made would be done for the good of the Court and not for the sake of change or to give the appearance of reform.

“I’ve got ideas, but I’m very much wanting to listen and learn and consult in the next six months before I say anything definitive about my goals and my vision for the Court of Appeal.

“It seems to me it would be entirely presumptuous to propound any kind of view like that now. Obviously, as a practitioner I have my own thoughts about that.

“I do intend sometime early in the new year to say something publicly about where I see the Court of Appeal going because I think it’s useful for the Court to be as articulate as possible about strategic direction and so forth.”

What his consultation will find is a court struggling under a large backlog of cases that have caused a significant blow-out in delays, despite concerted efforts over the past two years to tackle the problem.

According to Court of Appeal figures to the end of the 2004/05 financial year, delays to hearing date were:

  • eight months for an appeal against sentence;
  • 14 months for an appeal against conviction; and
  • 15 months for civil appeals.

In his speech at his welcome to the Court of Appeal on 25 July, Justice Maxwell said these delays were average figures and that some appeals took much longer to be heard, including up to two years for civil cases.

Speaking to the LIJ, he said these delays were not acceptable to the Court, the legal profession or litigants.

“Identifying the solutions is my number one project.

“I am keen to explore the extent to which it is possible to be more efficient and productive with existing resources. To the extent it is not, one will move in to the always difficult area of discussing resources with government and that’s very much on my agenda.”

LIV immediate past president and LIV representative on the Supreme Court Rules Committee Chris Dale said the main reason why the backlog of cases had increased was the nature of modern litigation.

“The easy cases are winnowed out of the system because people can’t afford to litigate them. They settle and they settle earlier because of techniques like mediation. “So the hard cases are the ones that are tried. If they are hard to try they’re hard on appeal as well.”

It is a notion backed by Justice Winneke, who in one of his final interviews before retiring told the LIJ in June that the Court was “constantly fighting increasing lists” because of the increased complexity of trials.

Justice Maxwell said he was not yet in a position to explain the backlog, but said he would investigate all possibilities.

One possibility Justice Maxwell raised was that one of the Court’s greatest strengths – its intellectual rigour – may be a factor in the backlog and delays.

“I have always thought the Court of Appeal was a tremendously conscientious court. You never go in there and feel that your argument has been ignored or treated superficially or carelessly.

“Whether, in these days of expensive judges and precious court time one can afford quite as much exploration of points is something I want to investigate because I am very concerned about the delays.

“I am interested to tease that out a bit. I tend to think that with good written outlines, which are of course obligatory, it should be possible to make the very labour intensive and costly oral argument stage a bit more streamlined than it has been, without any real loss to the quality of justice being administered and with some considerable benefit to the throughput of cases.

“That’s a hypothesis which I’m wanting to test.”

Mr Dale said the Court had been well aware of the backlog problem and had tried various ways to combat it.

Over the past 18 months the Court of Appeal, with the backing of Supreme Court Chief Justice Marilyn Warren, has inducted members of the Supreme Court’s Trial Division so that three appellate courts could run concurrently.

The result has seen a steadying in the rise in delays.

However, such campaigns place enormous strain on the judges of the Court of Appeal, of which there are currently 10.

The Supreme Court’s Annual Report on the 18-month period from 2002-2004, which was tabled in state Parliament on 20 July, paints an honest picture of the workload on Court of Appeal judges.

“The workload of the Court of Appeal continued to be relentless and punishing and is likely to remain the case with the present complement of Judges of Appeal,” the report reads.

“The continuing availability of assistance from Judges from the Trial Division is essential for current outputs to be maintained. If there is to be any improvement, a large number of permanent judicial personnel will be required.”

The report goes on to make a barbed reference to the state government’s stringent efficiency targets, saying the Court was “not a ‘business unit’ of government”.

Such a strong and publicly rare reaction gives a glimpse into the psyche of the Court at that point.

On his retirement from the Court of Appeal in March this year, Justice John D Phillips told the leaders of the profession assembled to farewell him of his concern at the way the independence of the Court had been eroded by government restrictions, especially financial.

He spoke about how the Department of Justice gave direction to the Court on financial matters such as the raising of court fees and how the judges’ computers were part of the department’s network.

“What is evolving is a perception of the Court as some sort of unit or functionary within the Department of Justice, a perception which is inconsistent with this Court’s fundamental role and underlying independence,” Justice Phillips said.

These are issues Justice Maxwell will have to deal with, but his response to them will not be made public until the beginning of 2006.

In the meantime, he has the task of fitting into a new role that is further complicated by him being a judicial outsider.

He said the warm welcome he had received from the Court’s judges before he began his appointment allayed any fears of a backlash against his appointment.

“They might well have been a bit taken aback to have a junior person and an outsider imposed on them,” Justice Maxwell said.

“Instead I have found them encouraging, supportive, very keen to pass on the benefit of their own experience, keen to help me make the Court better and stronger in the future.

“So in that sense my trepidation is falling away because I am finding that that is not as much of a disability as I might have feared.”

There is little doubt that much of this warmth comes from a respect for what Justice Maxwell has achieved during his varied, brilliant and sometimes controversial career.

He was educated at Melbourne Grammar School and graduated with honours from the University of Melbourne in 1974.

The following year he was the Rhodes Scholar for Victoria. In 1977 he gained a Bachelor of Philosophy from Oxford University.

In 1978 and 1979, Justice Maxwell was a barrister at Lincoln’s Inn in London. He returned to Melbourne in 1979 to begin a short stint as a solicitor at Phillips Fox.

In 1981 he took up an opportunity to be the principal private secretary to ALP Senator Gareth Evans and held that position when Senator Evans became federal Attorney-General in 1983.

Justice Maxwell described his time in federal politics as an “extraordinarily important experience”.

He left Senator Evans’ office to go to the Victorian Bar and it was here he quickly built his reputation as a brilliant advocate and often a champion of causes that affected the marginalised and voiceless.

He was junior counsel for the Commonwealth in proceedings upholding the legislation protecting Queensland’s Daintree Forest and Tasmania’s Lemonthyme World Heritage areas.

He was the counsel assisting the Mental Health Review Board in its inquiry into the certification of Garry David in 1990 and was counsel for the Women’s Electoral Lobby in successfully opposing an attempt by Catholic bishops at the High Court to re-establish the ban on providing IVF services to unmarried women in 2001.

He was junior counsel for the State of Victoria in the Tricontinental Royal Commission and in the state’s negligence action against the former auditors of Tricontinental.

Arguably the most important case he was involved in was as counsel for Liberty Victoria in the Tampa proceedings against the federal government.

The case stemmed from an incident in which the federal government refused to allow the Norwegian tanker MV Tampa to drop off on Australian soil 433 asylum seekers it had picked up off the northern coast of Australia on 26 August 2001.

The stand-off led lawyers and civil liberties group Liberty Victoria, of which Justice Maxwell was president at the time, to take up pro bono the cause of the asylum seekers.

The decision to argue the rights of the asylum seekers attracted public scorn and private praise from parts of the legal profession.

The High Court eventually dismissed the asylum seekers’ application to be processed on the Australian mainland.

However, a second legal fight emerged when then federal Attorney-General Daryl Williams began proceedings to recover about $200,000 in legal costs from Liberty Victoria and Melbourne solicitor Eric Vadarlis.

Liberty Victoria and Mr Vadarlis were the winners of that fight.

Current Liberty Victoria president Brian Walters SC described Justice Maxwell’s actions in leading the Tampa litigation as a “momentous step” that was fraught with risk.

“It was a great moment in the history of the legal profession in this country,” Mr Walters said. The case added to Justice Maxwell’s public profile of a fierce and fearless campaigner for civil rights.

It was a profile built on the back of a unique relationship with the public through the media. He often wore the “black hat” on issues that the tabloid media pushed hard the other way, such as the treatment of asylum seekers. Yet he was also always ready to offer the many journalists who called on him a brilliant insight and a quotable quote.

He is determined to maintain a public profile as a civil rights supporter.

“I don’t feel that part of my life has to be shut down at all, except in the sense that the role of political advocacy which Liberty Victoria takes is not a role a head of a jurisdiction can take.

“It’s just not appropriate. The Court of Appeal is not a lobby group.

“But I wouldn’t feel any constraint about expressing views publicly on a human rights issue because I obviously have the same views tomorrow as I did yesterday about the importance of human rights, the need for vigilance to protect and assert human rights.

“I don’t see any problem in someone holding a government post, such as the head of the Court of Appeal, speaking out on matters of that kind.”

In particular, he is a supporter of the state government’s push for a Charter of Rights.

He counts Senator Evans’ failed push for a national Bill of Rights in 1984 as “a great disappointment”.

“I lament the fact that we have no national human rights protection.

“It’s a matter of great regret that among countries with like legal systems Australia is the only one not to have a form of national human rights charter.”

Mr Walters said that Justice Maxwell’s involvement in cases such as Tampa was a perfect example of how he has had a career path that those wanting higher office would avoid.

“You can’t look at his career and say, ‘Well, he did that in order to get advancement’. Clearly he wasn’t doing that.

“In fact, you would almost think that he has destroyed his prospects by some of the things he did. Not because they were bad things, but because they would have annoyed people in power.”

Justice Maxwell agrees with Mr Walters’ point of view.

“That’s true. It has not been planned at all.

“I did plan to come to the Bar, but beyond that it has developed its own momentum.

“I have been ashamed at how passive I have been really in that way. But when I am given the opportunity I will give it a real red-hot go.”

During his time at the Bar, Justice Maxwell was also a commissioner of the Legal Aid Commission of Victoria for six years from 1986. He was made silk in 1998.

In 2003, he was asked by the state government to conduct a review into the Victorian occupational health and safety legislation – a review that may come in handy when he deals with overworked judges.

It is impressive to think that Justice Maxwell, who is married with three children, has achieved all this and attained a senior judicial position by the age of 52.

Is this then the final stop in a varied and glittering legal career or a stepping stone to something else?

“No, this is not a stepping stone. I have been lucky to be asked to do a variety of interesting things.

“I’ve actually been pretty bad at identifying stepping stones. Most of the interesting things I have done have been someone else’s idea and this is just another example of that.

“I see this as a destination, an unexpected one, and one which if I am still doing good work in 15 or 18 years’ time will be pretty pleasing.”

Maxwell: smart appointment

1974: Graduates with honours from University of Melbourne
1975: Rhodes Scholar for Victoria
1977: Gains a Bachelor of Philosophy from Oxford University
1978/79: Barrister at Lincoln’s Inn, London
1979: Joins Phillips Fox in Melbourne as a solicitor
1981: Becomes principal private secretary to ALP Senator Gareth Evans
1984: Joins the Victorian Bar
1986: Becomes a commissioner of the Legal Aid Commission of Victoria
1998: Takes silk
2000: Begins two-year stint as president of Liberty Victoria
2001: Launches proceedings on behalf of asylum seekers on the MV Tampa
2003/04: Conducts review of Victorian occupational health and safety legislation
2005: Appointed a judge of the Supreme Court of Victoria and president of the Court of Appeal

Jason Silverii

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