Hon. Justice Tricia Kavanagh transcript

Tricia Kavanagh:

I am the Honorable Justice Tricia Kavanagh. I am also possibly the very first graduate of the UTS Law school. I speak not only as the senior judicial officer in the land, but also someone who very much favours the UTS law school.

I enrolled in the UTS Law School having read an advertisement. I had just left Canberra after working as a commissioner on the interim children’s commission, implementing the Whitlam government’s policy for child care, and I was selected to that position having written the policy that became labour party policy with a group of women, and had a background working with the trade union movement as one of their first female advocates. Before that I had been a teacher.

So law seemed to be the natural extra skill I needed to move on. I chose to leave the public service simply because I married and came to Sydney to live. I was therefore a part time student. All the enrolments in the first few years at UTS Law School were part time students. I’m a great champion of trying to persuade the Dean of the Law School, and the government who subsidises students to support part time students, and the reason I think UTS became well known as a very highly skilled and intellectually sound law school was because we were the first group of graduates well placed in our various professional fields to advocate for you, and to also prove to others you were producing intellectually sound and personally sound graduates.

I, however, did have a purpose in doing law, having tried out advocacy for a trade union movement, and then bureaucratic work, I was determined that I would go to practice as a barrister in NSW. So I purposefully went to law school to become a barrister, and in fact, on graduation, (if I could sneak in for four years for a six year course, I don’t even know if you’re allowed to do that know. There was a bit of license and I don’t think a lot of people knew what we were up to at the early stages.) I went straight to the bar. That’s a very difficult route to take if you don’t have a lot of background, if you’re not highly experienced and sure of yourself, and if you haven’t got contacts.

When I went to the bar, I began to practice naturally in the area that I knew about, which was industrial relations, or, as in my view, it will soon become known as employment law. The Americans call it Labour law. I urge a change of nomenclature simply because it appears to me industrial relations takes you back to the 20s - “Law played out in the streets”. It seems to me as we’ve developed quite a comprehensive sound base of legal principles we can now step back from that concept of ideology of one side and the other (employer-employees), and see what works in the workplace in the employment environment.

I’m not sure if anyone can tell you how you become a judge. My view is simply that you must work in the trenches for many years, whatever trench you land in. I believe many fine and splendid thinking lawyers go through the solicitors’ branch. It’s nice to see now the academic branch of the profession is being given credit and an opportunity to become judicial officers. I came through the traditional route which was the NSW bar. I practiced in industrial relations for the first few years of my career, and then I made a decision perhaps made for me to move out of the area I was very comfortable and ambitious in and went into general common law practice including worker’s compensation, and I did that because my husband became a rather senior person, and I was carrying briefs often against decisions he had made, mostly representing trade union members. So I went into the common law. That was a bit related to the world I came from. Industrial accidents, industrial standards now developed as a new branch of the law (occupational health and safety), and I had, what they used to call in the old days until legislation changed it, very lucrative practice.

When you get into a lucrative practice, you really get tested, and all those standards that are taught to you at law school become very important. Ethics is so important. To tell the truth. To negotiate settlements honestly. To front up to the difficulties in your case, but emphasize ethically what you believe with the positives in your case. That involves the essence of what you learn in law school, the skill of critical thinking, because in a bundle of paper, you have the essence of your case, but you have to pick out what assists you, what you have to address that will be against your interests but you cannot walk away from, and perhaps one or two things you hope never get mentioned. It’s probably more critical analysis, as you develop what I developed which was a litigation practice.

Not only ethical standards mattered that are behind this critical analysis that you do, but conduct becomes important. The way you go before a court or tribunal to argue a case. They way you treat the barristers or solicitors on the other side. The way you develop for yourself a reputation for being not only a good advocate with a few flourishes but an honest advocate. Somebody whose words you can trust. As night is to day, I still hear people criticising others, “You can’t trust his word,” and in the law it’s very important. We, in a litigation practice, have not only a knowledge branch but a skills branch related to settlements, and your word must be taken as truth. So you must be very cautious. I remember once I misled a counsel. As it turned out, I thought about it over night, and the next morning I was very quickly on the phone to say, “Look, I’m sorry I think I misled you. As a result, you might have been embarrassed,” and that was a very important step in him acknowledging that I could be trusted, rather than never again.

There’s another simple issue that I’d like to teach you, probably because no one taught me, and that’s the use of the lingo. I’d been a school teacher, probably a blonde playing a few years of her life out, and then a union advocate, and then a government public servant. If I was honest, I flew through law school as just an academic for that period of time, but I wasn’t comfortable with the lingo of the law, and when I went to the bar, I was practising amongst persons who had been solicitors for many years before they went to the bar, academics of really fine repute with many a thesis behind them, and I wasn’t comfortable. A very simple example was I called my chambers my office. And they would frown upon me as though I didn’t belong. So it’s a simple thing. Learn the lingo. Become part of your own environment. That will make others believe you belong while you’re learning how to belong.

So to the new students, I wish you well. I’ve spoken about life within the closed environment of legal practise, but just before I finish, I want to remind you there are many worlds out there where the skills of logical thinking can be well applied. You do not have to practice within the confines of the law as its recognised (the solicitors’ branch, the barristers’ branch or even the judicial office). You can practice in banking, in politics, in PR, event management, but you bring all those elements. You bring your ability to critically analyse. You bring your ethical standards you bring your conduct and whatever world you go in, learn the lingo.

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UTS: Law would like to thank Sharna Clemmett for her generous contribution to this project.
This video was made possible by the 2009 Learning and Teaching Performance Fund, UTS.

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