LAST WORD

“Mortal coil” is a poetic term for the troubles of daily life and the strife and suffering of the world. As an expression, it most famously found in Hamlet’s soliloquy,

”To be or not to be,that is the question….

For in that sleep of death what dreams may come,

When we have shuffled off this mortal coil,

Must give us pause-there’s the respect

That makes calamity of so long life…….”

In April this year a giant of the industrial and personal injury world shuffled off this mortal coil, The Hon Dr Frank McGrath AM OBE, Chairman of the NSW Workers Compensation Commission and from 1984 to 1993 Chief Judge of the Compensation Court of New South Wales. The Chairman as he was colloquially known in workers compensation circles was born in Birkenhead, England in 1921. His father, James, a shipwright and mother Mary, a tailoress emigrated to Australia with their only child in 1924. After attending Canterbury Boys’ High School ( John Howard’s alma mater) Frank completed a BA (Hons) in History, with the University Medal in 1942, later his MA and LLB at the University of Sydney. Having originally trained as a teacher, unable to get work on account of wartime restrictions he became a blacksmiths’ striker at Mort’s Dock in Balmain. McGrath became a member of the Federated Ironworkers Association(FIA)  in which a huge struggle for control was in full swing between Communist Party and non-communist factions of which he was a member of the latter. Violence on the waterfront was commonplace.McGrath was assaulted by the communist organiser, Arthur Olive who served twenty days gaol rather than pay ten pounds compensation to McGrath( perhaps when he gained an early appreciation of damages for personal injury).

However, McGrath’s legendary status in the Cold War environment of the trade union world came when he was working as a solicitor for Carroll & O’Dea which was acting for union leader Laurie Short. Short had brought proceedings to quash the election results in the FIA on account of alleged electoral fraud. Though Short had Eric Miller, KC and John Kerr as his barristers the breakthrough in the case was when McGrath noticed something strange about the ballot papers which were votes for the communists as compared to the votes for Short. The ballot papers had not been printed by the Government Printer but by a small firm which employed a number of members of the Communist Party, The communists votes had a preponderance of indentations which compelling suggested that a voter had a plie of ballot papers of the same sort ,which he or she worked through voting one by one indenting the paper underneath. No such indentations were found on the votes for Short. Justice Dunphy overturned the result of the election. In time the Communists who controlled this key blue collar union were routed. Short and his right-wing allies won the union which gave important votes to the right wing of the ALP. In the days of lucrative common law and compensation work for workplace injuries one would have thought that Carroll & O’Dea would have reaped the riches of this success. However,  Short, an ex-Trotskyist was good friends with another former supporter of Leon Trotsky, Jim McClelland.  His law firm got the work and benefited from the ‘rivers of gold’ for decades by doing the workplace damages claims for injured members of the FIA. McGrath went to the Bar and practiced from Fourth Floor Wentworth Chambers.

During his long career on the Bench McGrath was the model of civility to counsel and the injured workers. At his retirement sitting the Hon Michael Kirby described McGrath as ‘a just and accurate judge’ and one of his mentors.

In retirement at the age of 79 McGrath completed his PhD. It was published as a book, The Framers of the Australian Constitution ,1891-1897:Their Intentions, which Professor David Flint described in his foreword as ‘a significant contribution to our understanding of the interpretation of the Australian Constitution.’

To return to and paraphrase Hamlet , McGrath was not taken down by ‘the slings and arrows of outrageous misfortune’ but by taking up arms against a sea of troubles by opposing them he brought them to an end.

McGrath reached 100 years of age.

Two other judges who have recently departed the same coil with whom I had dealings with during my early days at the Bar were Judge Ray Burke of the Compensation Court of New South Wales and Justice Barrie Hungerford, QC of the Industrial  Commission of New South Wales.

Ray Burke spent most of his professional career in matters concerning workers compensation law and became an unrivalled expert in it. He died this year aged 93 years. In a dinner at Tattersall’s Club in 2001 to mark his retirement from the Bench the Honourable Michael Kirby AC CMG spoke. He recounted how his first job as an articled clerk was with the firm M A Simon and Co in Hunter Street, Sydney of which Burke was a partner. Burke’s and his other partner Maurie Simon were on the Labor Council of NSW panel for advice and representation for injured workers. Kirby stated of Burke ‘Amongst his many saintly qualities, one which  I could not honestly attribute to Ray Burke was trappist silence or loveable patience.’ He also informed the dinner that ‘Neither Ray Burke nor M A Simon were quiet retiring types…..Each seemed constantly to be looking for a reason to shout and scream at the other.’

That was refreshing to read that because I thought it was me who caused his Honour to lose his temper in court. I have vivid memories of pejorative comments from the Burke Bench about my ability and competence as counsel.

Once I  announced the resolution of a case on day three of its hearing.

The following is an accurate paraphrase of the transcript.

PHILLIPS: Your Honour, may I mention the fourth matter in your Honour’s list in which I appear for the applicant?

HIS HONOUR: Yes, Mr Phillips.

PHILLIPS: I can happily inform your Honour that that matter has settled.

HIS HONOUR:  Settled?

PHILLIPS: Yes, your Honour.

HIS HONOUR: Settled! After you have wasted three days of court time and three days of my life?

PHILLIPS: Settlement was no doubt brought about by your Honour’s helpful comments throughout the hearing.

HIS HONOUR: If only you had listened more closely to what I had said to you on the morning of day one!

However, with Judge Burke, known endearingly as “Mad Ray”, I soon realised his apparently acerbic comments were not personal but in his own irascible way meant to speed things along and be helpful to those who were listening.  His true ire was reserved for members of the Court of Appeal and the High Court of Australia who dallied on appeal into workers’ compensation law whom he believed mucked up its symmetry and empathy.

Long after his retirement some of Burke’s decisions are still treated reverentially as authority, in particular, his explanation of what is ‘reasonable medical treatment’ for which the insurer is liable, see Rose v Health Commission (NSW) [1986]NSWCC2: (1986) 2 NSWCCR 32 at 42.

—————————-

Barrie Clive Hungerford,QC was born in 1937.He attended Trinity Grammar at Summer Hill.  He graduated from Royal Military College Duntroon in 1958. After a few years service in the Australian Army he worked as an industrial officer of the then Metal Trades Industry Association. He studied law and joined the Bar in 1976 and was appointed one of Her Majesty’s Counsel in 1988 and one year later was appointed a judicial member of the Industrial Commission of New South Wales, later to be the IRC of NSW . Upon retirement from the IRC  Hungerford became an acting judge of the District Court of New South Wales. Although coming from the ranks of the employers on the bench Hungerford often found in favour of the workers. His decision in  Starkey v Mitchforce (2000) 101 IR 177 was probably the high water mark of the jurisdiction of the Industrial Relations Commission in its unfair contracts jurisdiction. That case related to a lease agreement for hotel premises based upon on the provision giving jurisdiction to the IRC to re-write a contract ‘whereby a person performs work in any industry’. The decision to vary the hotel lease was appealed to the Full Bench of the IRC which refused leave, see Mitchforce Pty Ltd v Starkey  (2002) 117 IR 122. The Court of Appeal on further appeal was not so minded, Mitchforce  Pty Ltd v Industrial Relations Commission of NSW  (2003) 57 NSWLR 212. Chief Justice Spigelman at 226 said that ‘The lease in this case stands alone as a lease of property’.Though it may have ‘contemplated’ work that was not its ‘purpose’ so the worker protection provisions of s.106 of the Industrial Relations Act (NSW) were not enlivened.

Thereafter closer attention to the extent of the jurisdiction exercised by the IRC was given by the Court of Appeal and the High Court.

The NSW IRC’s jurisdiction concerning unfair contracts was specifically repealed in 2006  by the WorkChoices legislation using the Corporations power of the Australian Constitution.  

Barrie was a committed smoker and drinker of full strength Coca Cola.

“ To sleep, perchance to dream—ay, there’s the rub :

For in that sleep of death what dreams may come….”

Jeffrey Phillips, SC

State Chambers