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New job new era

New job new era

By Karin Derkley

Interviews Legal Biography 

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Victoria’s new Chief Justice Anne Ferguson is the first solicitor to lead a superior court in Australia.

Chief Justice of the Supreme Court Anne Ferguson has had a good year – her footy team won the AFL premiership after 37 years, and she was appointed to the highest judicial office in the Victorian justice system.

“I am a very happy and surprised footy fan,” she says, with obvious delight. “I really love my footy.”

Of her new role as Chief Justice the former Court of Appeal judge is a little more restrained. Although she recognises her appointment as a great honour, she insists her approach to her new position will be as to a job like any other. “It’s no different. You’ve got a job to do, and you just do it, using the skills that you’ve got or you’ve developed.”

Still, it’s been a momentous journey for the girl who grew up in Melbourne’s south-eastern suburbs, worked weekends at a milk bar in Mulgrave, and whose first ambition was to become a school teacher.

With no lawyers in the family, it was almost by accident that she took up legal studies in Year 10. “I needed a fifth subject and I’ve always liked detective novels and crime shows, and my friend’s boyfriend was studying law and suggested I might like to as well.”

She did well enough in her HSC at Killester College in Springvale to get into arts/law at Monash, thinking to do a Dip Ed at the end of her degree, then found she preferred her law subjects. “So I thought I may as well finish the law degree – and then I thought, I may as well do my articles.”

An encouragement award in the form of the Supreme Court Prize may have helped the decision to pursue the law. But it didn’t make it any easier to find somewhere to do her articles. It was the 1980s recession and few firms were hiring. After writing more than 100 application letters – “on a manual typewriter I might add!” – she was taken on by J M Smith & Emmerton to do insolvency work, one of the few areas in demand at the time.

“It wouldn’t have been my first choice, I was just grateful to have a job. But it was much more interesting than I had expected,” she says.

Insolvency law covered a wide range of subject matter and legal issues, but it also had much more human interest than she’d anticipated. “The thing about insolvency is that it’s about when things go wrong in a business. So it’s an insight into how people operate and what they do, and what can happen when they don’t take care in putting agreements together.”

The human aspect of the law has always been an important drawcard, the Chief Justice says. “Every case you read about is about people. There are human actors in every case, whether it’s a corporation or not – it always affects people.”

After articles, Chief Justice Ferguson went overseas to do a PhD on unfair contracts at the University of Southampton in the UK. On her return she was made partner at J M Smith & Emmerton (which later became Gadens) where she remained until 1999.

Both there and at Allens, where she worked until her appointment as a judge of the Trial Division in 2010, Chief Justice Ferguson worked on a number of high profile matters – including the collapse of Pyramid Building Society in 1990 and Opes Prime in 2008. But she brushes away the idea that she might have felt burdened by the significance of those cases to the state at the time.

“There’s nothing special about a high profile matter,” she insists. “It shouldn’t influence you as a lawyer. A case [involving a] small business operator is as important as something that is on the front page of the [news]paper. You should be applying the same method to it no matter the profile of it in the public domain.” That is: focus on the task at hand, and be mindful of all your obligations, including your primary obligation to the court and to advise the particular client that you have.

That single-minded, almost dispassionate attitude, marks her approach to her new role too. She sees herself as having a job to do, primarily one that is about the court delivering an “excellent service” to the community, and making sure it is done to the best of her ability.

Was the appointment a surprise? The 58-year-old says that gossip in the legal press meant it was less so than the original tap on the shoulder to become a Trial Division judge. She was appointed to the Court of Appeal in 2014.

But there was still the decision as to what accepting such a role would mean – to her family, other judges, the wider community.

In the end she decided to take the advice she has given to so many women: “If you get given an opportunity, you should grab it with both hands, even if you’re not that certain about it. Because quite often people see in you something that you don’t fully recognise yourself.”

There is no training course for being a Chief Justice: “How would they even provide that given we only give that training once in 14 years or so?” she says. “There are certain things that are prescribed, but it’s up to you how you go about that.”

Her experience as a solicitor is probably less relevant to her role than her seven years as a judge, she says. But she acknowledges that being a solicitor is an important part of what makes her what she is. “It’s given me a different experience to others [on the bench]. And difference is good. I might think about things slightly differently from other people – and my observation is that organisations benefit from a variety of views.

“I’ve been used to working with other lawyers, and to dealing with clients on a day to day basis. I’ve had the opportunity to work on some very broad ranging matters. All those things help me understand what options there might be for how the court fulfils its role in providing justice and access to justice for people.”

Diversity is an issue of great interest to her. Even though she claims that “burning passion” is not a phrase in her lexicon, she is clearly deeply concerned about the lack of women and people from diverse cultural backgrounds in the courts.

“We gather statistics in the Court of Appeal about females presenting cases in the courts, and those figures are not good. That’s a great disappointment to me because we see all the new lawyers coming through and for a long time there have been far more women than men, but we are not seeing those numbers reflected before us in the courts.”

The same goes for lawyers of non-European background. “We have a large part of the community that originated in Asia, for instance, and we are not seeing that reflected before us.”

She is at a loss as to what can be done to remedy the imbalances, she acknowledges.

“So much has been tried, and we haven’t seen the results yet, and we thought we would have by now. If I had the answer to how we can achieve diversity I would be a very happy person. If there are other things that we could be doing to encourage diversity, I’m ready, willing and able to listen.”

What she’s most concerned about is not so much the upper echelons, but the middle ranks which need a critical mass of women and lawyers from diverse backgrounds to create a pool from which judges and senior counsel can be drawn. She understands that women’s careers are interrupted by their childbearing years, and that those from other cultural backgrounds have found it harder for various reasons to make inroads into the profession at those middle ranks.

“Perhaps we need to start thinking in terms of what contribution you are making to an organisation rather than time. Then we might change the potential barriers for people who are at the workplace for less time than others for whatever reason – because of family commitments, or because of customs that prevent them from participating on a full-time basis.”

But even as Chief Justice her impact on such issues can only go so far, she admits. “My role is to encourage, but I can’t make the decisions as to who gets appointed.”

In her welcome speech in October, the Chief Justice said she saw communication as an important part of her role, in terms of making sure that “what judges do, how we do it, and why we make the decisions we do, can be easily understood by all people”.

Judgment summaries published via the Supreme Court’s social media channels aim to give the community access to judgments. But she knows the courts have to work with the traditional media to make sure they at least get the opportunity to report on cases accurately.

“To the extent that we can help mainstream media so we don’t have misconceptions and misunderstandings, that’s what I would like to focus on. We need to make sure they’ve got the information so they can report on it accurately,” she says.

Will she ever address those misconceptions and misunderstandings in the mainstream media?

That’s something she is considering, she says, even if with a little trepidation.

“Quite likely I will have communication with mainstream media and other avenues,” she says. “The world has changed significantly and we have a lot of people writing about cases, not all of them are media accredited. So the Court can’t simply focus on one aspect of communication with the community.”

There are plenty of other challenges – that of adapting a much-treasured but in many ways archaic building to the needs of a modern court system. The Court stretches across six buildings, which presents challenges to its users and the community interacting with it.

“It’s a beautiful heritage building – and the community loves it. I’ve watched the kids come into the library and look up into the dome. They’re star struck by it. But it has its limitations for us to deliver efficient cost-effective justice.” That includes less-formal spaces for the increasingly common mediation sessions offered within the Court.

Embracing the technology that might help streamline court processes is also a challenge, given the physical environment, she acknowledges.

For herself, she’s well aware that physical and mental health are crucial to her doing her job as Chief Justice. She works out regularly at the gym and enjoys walking, and then there is the footy as well as the cricket in summer on which to focus her enthusiasm.

“I think you’re a much happier person and do your work so much better if you can keep a balance and look after your physical and mental health.”


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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