The Chief Justice Of New South Wales Andrew Bell Cj

Hello and welcome back to the Australian Law Student Podcast.

I'm your host, Oliver Hammond, and today I had the privilege of speaking with the Honourable

Chief Justice, Andrew Bell, of New South Wales.

Justice Bell's distinguished career spans decades in the legal field, where he has made

significant contributions as both a barrister and as a judge.

In our conversation, we delve into his journey into becoming Chief Justice, his time at law

school, and his time as a barrister.

We also looked at the challenges and the responsibilities that come with his role, and his views on

the future of the legal system in New South Wales and Australia.

This episode offers a rare glimpse into one of Australia's most respected legal figures

and one of Australia's best legal minds.

So sit back, relax, and enjoy the podcast.

Thank you everyone for joining me today on this episode of the Australian Law Student

Podcast.

I'm your host, Oliver Hammond, and in today's episode, I'm joined by my co-host, Rucha,

and I'm also joined by...

I'm joined by my very special guest, His Honour, Chief Justice, Andrew Bell.

Thank you so much for joining me today.

Pleasure.

I'll start off with my first question, Your Honour, and during your tenure as a barrister,

you handed a diverse array of cases, and I was just wondering, could you share some of

the most memorable ones and what you've learnt from those experiences?

Sure.

I thought I'd give you an example of a case from when I was a junior, when I was one or

two years at the bar, and then an example of a case when I was a silk.

And then also possibly just some reflections on a series of appellate cases I did in the

High Court over a number of years.

So the first case, which I did in my second year at the bar, involved a contractual dispute

between a guy called Bill Mordy, who was a promoter, a boxing promoter, and a colourful

figure around Sydney at the time.

This is approaching 30 years ago.

And Kostya Zhu, the boxer, the father of the current boxer Zhu, but Kostya Zhu was a very,

very famous, very successful boxing, he was a world boxing champion.

And Bill Mordy had promoted Kostya Zhu, had built up his career, he'd matched him with

opponents over the years.

And just as he was on the verge of...

Reaching world championship fights, which are the big pay days, both for the boxers

and the promoters, he was, well, the argument was he was poached by Sky, it wasn't Sky,

it was a sports broadcaster.

That was the early days of pay TV, and the pay TV proprietors wanted to get good talent

to attract people.

People for subscription services.

Anyhow, it was a classic contractual dispute, it was Mordy, my client, alleged a breach

of contract, and he also sued a number of people, including a company which was associated

with sort of packer interests at the time for inducing breach of contract, so a classic

case.

I was led by a then legendary QC, who'd already been a QC for 25 years at the time, called

Frank McCallery, who was an immensely experienced barrister.

And part of our case was that we suffered very significant damages because Zhu was on

the verge of great stardom and great pay days.

The other side led an American boxing expert talking head, who argued, or wanted to argue,

that the money was only in heavyweight bouts and not in lower weights.

The cost to Zhu was a lower weight bout.

Anyhow, Frank McCallery came into the case late, and he said, well, how are we going

to cross-examine this particular expert?

How are we going to falsify his or qualify his thesis that only heavyweights got the

big pay days?

Anyhow, and that was my challenge to think how we were going to do that, because we didn't

have a competing expert who said the opposite.

He said the opposite, which is often what happens.

So if we were to neutralize that evidence, we had to do it through cross-examination.

We had to break down his thesis.

He was the expert.

We weren't.

But Frank said, you work out a strategy.

Anyhow, I went down to Dimmock's bookstore.

I was thinking about it.

I went down to Dimmock's bookstore.

I found a book called The Hundred Greatest Fights of the Century, of the 20th century,

Hundred Greatest Boxing Fights.

I went through it.

And I flagged all the ones.

Which were non-heavyweight fights.

And these were fights, though, which had attracted great notoriety, great publicity, were very

successful in the context of boxing history.

And Frank took this expert through each of these non-heavyweight fights.

The expert knew about the fights.

They were famous fights.

And he had to ultimately agree that what was important wasn't the weight of the boxer,

but the closeness of the contest.

And particularly building up rivalries between, and having rematches, et cetera.

And so he cross-examined the expert for about a day, just working through these fights.

The expert actually enjoyed discussing the fights with McCallery and started talking,

and sort of forgot, in a sense.

And I think that's a good thing.

He had to go through this.

His thesis, and he came completely around and said, I have to agree with you that certainly

the heavyweight fights make a lot of money, but not to the exclusion of others.

It's all about how well they're promoted, which was exactly our thesis.

So I had the opportunity of sitting there with one of the great cross-examiners of his

time, Frank McCallery.

And it was interesting to see how he did it.

And it's interesting to see how he did it.

and see how cross-examination doesn't necessarily need

to be aggressive, how part of the skill is in getting a witness,

whether it's an expert, as in that case, or a lay witness

in other cases, to talk, to engage, to drop their guard.

And he did it with devastating effect.

And we ended up winning the case and we won a lot of damages, actually,

because the judge rejected the other side's evidence

by reference to the cross-examination.

So that was an early case.

It was an interesting case.

Kostya Zou gave evidence.

Jeff Fenwick gave evidence.

He was another player in the case.

And I, as a very young barrister, learnt from a great master.

He also taught me.

That the secret to cross-examination is working out very clearly

from the outset what you want to achieve.

In other words, you don't just ask questions for the sake of it.

You've got to have a strategy.

It's more important to know and have a very clear idea in your mind

about where you want to get at, what you want to get out

of the cross-examination, what propositions you want the witness

to have agreed to.

That's much more important than just writing down questions.

You've got to know where you're going.

And he was a very flexible, agile thinker and cross-examiner.

And also, I mean, I also learnt from him in the context of that

and other cases I did with him that the really good cross-examiners

can vary their style.

They can turn up the heat, they can turn up the volume,

or they can cross-examine very gently, very softly,

and sometimes that can be devastating.

But it's not a one-size-fits-all.

Yeah, I imagine law students,

I think, have a lot of sort of preconceptions in their head

of cross-examination being quite hostile and quite, I suppose,

argumentative, but I think it is good for that understanding

to be that it can at times be a bit more, you're right,

soft-spoken and a bit more conversational.

Yes, well, one thing I would encourage law students to do

would actually be to come to court, whether it be the Supreme Court

or the Federal Court or the District Court,

and watch cases from time to time.

The courts are open.

Yeah.

There's a big case or a case of some notoriety,

but even if it's not, sitting in a courtroom for an hour or two

watching different barristers cross-examine is very interesting.

But it's correct that, A, there's not one-size-fits-all,

that's to say different barristers have different styles,

but also the best barristers can adjust their style

according to the type of witness.

You might have an argumentative witness,

somebody who takes it up to you you might have a witness who's very disciplined and

focuses very precisely on the question they're asked and only answers that

you might have an evasive witness you might have a witness who's playing for time and you've really

got to adjust anyhow that's one from my time as a silk again it was essentially a contractual case

but also involved issues misleading and deceptive conduct and consumer protection related to

um uh quantus the the airbus uh 380 when they first came uh onto the market and they hadn't

been flying very long this was a double-decker long haul uh and quantus had uh a 380 where there

was a massive engine failure failure um out of singapore 32 i think so uh and the

um

anyhow they successfully brought it into land but it could have been a complete

catastrophe uh but um there was a huge problem with the engines um quantus um

uh the engines for the quantus a380 were built by rolls royce

and there was a contract which had a damages limitation in it of i think three million us

dollars

the damage was closer to 100 120 million dollars and it also had a what's called a jurisdiction

clause a forum clause which said disputes had to be heard in the english courts um uh so it was

iconic litigation between an iconic australian company quantus and an iconic british company

and it was also occurring against the backdrop of an ashes cricket series uh which i rather

rather enjoyed the fact of

but uh that was a case involving transnational litigation we wanted to sue in australia quantus

and we knew that rolls royce would want to defend any proceedings in england and there was a

jurisdiction clause so we had to strategize in advance of bringing proceedings could we bring

proceedings in australia what would they do to try and stop that um because you can bring various

actions which either result in proceedings or they do not result in proceedings and we had to

Proceedings in one jurisdiction being stayed or proceedings in that jurisdiction being the subject of an injunction called an anti-suicide injunction issued by a foreign court.

So we had to think through all of that very closely.

That was my area of expertise, private and national law, transnational litigation.

I'd done my doctorate in it on that precise subject.

But it was an enormously stimulating case.

It was sort of tactical.

The stakes were huge.

It was a $100-plus million case on Qantas' case.

And if we could crack the limitation amount and if we could get around the jurisdiction clause, they were the two initial threshold challenges.

Anyhow, we thought that through.

I had to give a sort of intense briefing.

It was a big commercial call to bring the proceedings, very stimulating, a lot of adrenaline.

The decisions had to be made extremely quickly, but cases had to be thought through very quickly as well.

So there were some early hearings before it ultimately settled, but it was an exciting time because it was, as I say, an iconic case.

It was a significant commercial case.

It was between these iconic companies, and there were a lot of stakes hanging off it.

And then another series of cases I did, again, these were private and national law cases.

There were cases I did some as a junior being led by Silks, and then some I did in the High Court myself.

But there were about five or six High Court appeals involving conflict of laws.

Questions, and so I was sort of in my element because this was my area of speciality.

And a series of cases were heard, all of which developed the law quite significantly.

I mean, if a case gets to the High Court, it's because there's a debate about principle.

Most cases turn on the facts, and most of the law is well settled.

That's something that's important for lawyers and law students to know.

So you've got to...

You've got to understand principles of contract.

You've got to understand principles of trade practices, et cetera.

But most of it is actually settled, and most of it is actually common sense when you sort of think about it

and think about the principles that are aimed at a just result, a rational, reasonable outcome.

But when you get sometimes in the Court of Appeal, but certainly in the High Court, you're actually debating law.

The law is up for grabs.

And there's an argument about whether it should be developed.

So in this series of cases in my area, I had the opportunity of not only seeing that happen, but contributing to it with the argument.

So three different cases, different experiences, but just to answer your question about some of my memorable cases and what I'd learned from them.

Yeah, no, that's great.

I'll hand over to Richie now to ask the second question.

You achieved university medals at both the University of Sydney and Oxford, demonstrating exceptional academic excellence.

So we were just wondering what motivated you as a student to attain such high levels of achievement?

And how did you balance this with family, hobbies, and interests like cricket?

Oh, well, so two aspects, my motivations, and secondly, how do you balance working hard to achieve your goals?

Yeah.

Like a true giant.

Achieve things and how do you balance everything?

So my motivations, initially, I think I was just motivated to do well probably to sort of impress my parents.

They wanted me to do well and they'd sort of given me a good education and encouraged me.

So I sort of wanted to repay that, and then I had some scholarships at both Sydney University and Oxford, and I certainly took the view that if you're lucky enough to win some sort of scholarship or subsidy, then you should make the most of it and take the most of your opportunities, and also ultimately to give back, which is partly what being a student means.

So that's definitely what being a judge is about, although initially, you don't immediately become a judge, obviously, you've got to get there, although there are lots of opportunities for public service before judicial life.

But I was strongly motivated to take advantage of the opportunities I'd got.

I sort of felt a responsibility to do that, but I also enjoyed it.

I don't think I'm a nerd.

I don't think I've ever been accused of being a nerd, but I found it very, very stimulating.

I found the study of law very stimulating, particularly at the postgraduate level.

I had had the great benefit, I think, between my undergraduate study at Sydney University and postgraduate at Oxford.

I'd worked for about 20 months as a judge's associate for a brief time, a federal court judge, but then for just over...

I was a judge for a year with Sir Anthony Mason, who was then Chief Justice of the High Court, and in my view, probably the finest Chief Justice we've had,

or certainly one of the finest Chief Justices of the High Court we've had.

And that year out, having finished at Sydney, but before I went to Oxford, gave me...

Well, I was working in a hugely privileged way, working closely with Sir Anthony, from whom I learnt an immense...

amount but it was useful to have a break between the intensity of finishing Sydney I did six years

at Sydney I did an honours degree in economic history and and then law before going to Oxford

20 months later so I was a bit more mature a bit older than some of the other students and I'd had

this extraordinary opportunity to work at the High Court hear great advocates observe interesting

cases being decided seeing how judgments got written you know there's a lot between the

receiving the oral argument or the written argument and the judgment as it's ends up in

the commonwealth law reports and so I had that benefit so by the time I got to Oxford I knew I

wanted to be a barrister I knew it was a I did a BCL which is the postgraduate course and then a

doctorate but I it was the time I could really

you

absorb and get really build on my technical knowledge of certain areas subjects I hadn't

studied like restitution I hadn't studied that at Sydney I don't think I was taught at Sydney at

that at the time I had done conflicts but I did another had the advanced conflicts course at

Oxford which is a very famous Oxford course one of the signature courses Dicey and Morris

Dicey was a professor and Morris was a reader in private national law and

so I developed my interest there and then I my doctorate was in that area as well so as having

this having by then decided I would be a barrister I was motivated to learn as much as I could because

it would then set me up well in terms of my technical knowledge the second part of the

question was about balance that's a constant challenge for lawyers or

I suppose people who sort of throw themselves in into things part of the secret I mean balance

is very important I've always said that I've always emphasized both to myself and more

recently my public role more publicly that you both for your own well-being but also as a lawyer

or a judge you'll be a far better lawyer and a far better judge if you're a balanced person

because law ultimately is dealing with individuals someone's dealing with corporations as well of

course but you have to understand if you're cross-examining you have to understand how

how individuals react you've got to understand how to impress a judge uh I don't mean personally but

I mean professionally how to persuade Etc so you don't want people being lawyers who just

sort of tunnel have tunnel vision but you've got to work hard at making time

to have balance for your family and also outside interests um so it's a lot of self-discipline uh

it's not much sleep that's that's one of the ways I've done it by squeezing as much out of my days

and weeks as I can you've got to be careful about having enough sleep but I certainly at the bar I've

worked very very long hours but I squeezed other stuff in but one of the reasons I worked through

long hours during the week was

free up some time on the weekend for family or I'd go home and have dinner then I'd come back

into Chambers after everyone else had gone to bed and do it that way but it's it's planning

self-discipline a career at the bar is sometimes difficult to say no because you're a sole

practitioner you and if you've got sort of professional FOMO you know you don't want

to miss out if you're offered a brief you want to be in it if there's only so many things you

can do but that's where for a bit of self-discipline a bit of planning comes into it

um no thank you so much for sharing um we'll now move on to uh a select series of set questions

that we ask all of our guests um and yeah perhaps um you can take each one and spend a little bit

but what was your favorite subject in law school and perhaps um why uh well it's sort of over the

whole of the study probably was private international law or conflict of laws but

I actually did Roman law at uh in my final year uh and you might think that's sort of odd that

would be my um I don't know I don't know I don't know I don't know I don't know I don't know I don't know

um favorite subject or one of my favorite subjects the reason I found it so interesting it was taught

by then Arthur Emmett QC who became a very senior judge in the federal court and then on the court

of appeal and subsequently became a very good friend of mine but um he taught it as a comparative

law course which was really interesting because uh a different system of law civil the basis of

the civil system of law but of course the civil system and the common law system are both dealing

with the same problems uh problems of Commerce problems of human relations problems of crime

Etc they have different techniques so he he taught it as a comparative course which I found really

interesting the other thing about it was unlike every other course which was dealing with a

particular subject in a bit of a silo which is they have to be taught that way but of course

life's not like that most cases it might involve top court taught contract trade practices or

or different different areas Roman law was taught across the board the whole system so you saw how

these different areas interacted with each other and you got an overview and doing it in my final

year was useful because it actually helped me bring together in my own head all the individual

subjects I'd studied along the way so um private and national law similarly as a whole dealing with

the whole system and and so it both subject

brought everything together for me I think they still do teach um Roman law at least at

UNSW I'm not sure yeah no that's something as well yeah yeah yeah it's a um I think it's a

subject that does I think have a lot of people taking the interest especially industry buffs

but yeah but but it's um people shouldn't sort of not do it because they don't think it's relevant

or would or would be useful I mean it actually I found it extremely uh useful in terms of developing

my ways of approaching issues and thinking thank you uh do you have any book or movie

that's significant to you and one you would recommend to students um so most of my sort of

non-legal reading is uh is actually non-fiction I I enjoy fiction from time to time and if I had more

time I think I would uh but I like reading history and and biography or sort of quasi biographical

books that the the most interesting book I think I've ever read in that sort of genre is a book

uh by Professor David Reynolds called in command of history and it's about it's really historiography

it's about Winston Churchill in the Second World War but of course immediately after the Second

World War he wrote the history of the Second World War and he's really uh and he he drew on all his

papers Etc but was the Second World War through his eyes and the fascinating thing about this

book is that the author tracks through

what Churchill said and then he he compares it to and perhaps a more objective view of what

what happened and it illustrates that the nation of um uh uh historiography and how how history uh

is often in the eye of the beholder there's another very very interesting book on Churchill

called no more champagne uh which is about Churchill's finances uh and

how he how how they were fairly chaotic and uh and how he actually didn't have much money but was

constantly scrambling uh for money it's a really it's just looking at a historical figure but from

a from a particular perspective uh and uh I enjoyed that as well but I enjoyed reading a

lot of American political history and biography and and more recently particularly since having

my current role we've had the bicentenary

of the court this year, and I've known it was coming

because it's a fixed point in time, I've read

and I'm increasingly reading about not just earlier chief justices

and earlier judges but Australian colonial history

and it's actually very, very interesting.

And Trove, you know, all the old newspapers are available readily online

compared to when I did my economic history thesis,

they were all on microfilm and I had to go to a microfiche

and have a magnifying glass at the library, but it's all online

and it is really quite extraordinary some of the things I've found.

So I give a lot of speeches now and I often draw on history,

so I'm enjoying reading that.

We're approaching towards the end of the podcast, Your Honour,

and so I'll just ask you one last question and that's what's one habit

you believe that has been pivotal to your success in the legal field?

I'm not sure if you and your listeners can be thrilled by this,

but hard work.

I think there's no two ways about it.

The law is complicated or complex and demanding and it's sort of vast.

To succeed you have to be on top of it and you have to put in long hours.

I remember Murray Gleeson who, you know, was an extraordinarily fine advocate.

He was, you know, one of the greatest ever.

Australian barristers and then Chief Justice of New South Wales,

Chief Justice of Australia.

He regularly, you know, has an easy manner, et cetera,

but he always says it's 10% inspiration, 90% perspiration

or something like that, I don't know if that's the percentages,

but it is hard.

You've got to be prepared to work hard to really excel.

I think that's it.

I think.

Part of that though, if you accept that, then you can be clever about it.

You have to be well organised.

What you take on, the time you give yourself to do things,

you can't let people down.

You've got various commitments if you're a barrister or a solicitor

and frankly if you're a judge.

If you're a judge, you should be getting your judgements,

our prompt legs, people are waiting for them.

So you have to be well organised and if you're well organised,

that in terms of planning and allocation of time and balancing everything,

so they're some of the skills or habits I would volunteer as being necessary.

Well, thank you so much for giving us some of your time today and yes,

on that note,

thank you to everybody for listening.

Thank you.

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