Reprinted Edited Extract of Interview with
Chief Justice David Malcolm Lee Rossetto Partner, Minter Ellison Interview conducted August 1999. Previously published July 2000 Brief.
How would you describe your longterm career aspirations. Are you in the position to which you have long aspired? Certainly I had no ambition of being Chief Justice of Western Australia or indeed any ambition to be a judge. My career aspirations were, I suppose, to achieve a level of performance where I would be recognised as one of the leaders of the bar, to do the very best I could. I have always taken a great interest in law reform, and it is a quarter of a century or more ago that I was appointed to the Law Reform Commission of WA. To improve the system, to make it better than it was when I found it, has been one of my long-term aspirations. At present I would simply like to do the job I am now doing to the best of my ability. If you had to be specific, what would you say has been your main motivation and source of determination throughout your career? I suppose I have endeavoured to develop my personal skills to the very best of my ability, in order that I be better qualified to serve the community. I would like to make a difference. What are some of your most memorable (embarrassing) moments in court? My first experience was while I was still an articled clerk. It was virtually on the eve of my admission. It was necessary to advertise twice in a daily newspaper before making an application for admission. In those days it was cheaper to advertise in the Daily News than it was to advertise in The West Australian. On the last day the Daily News forgot to put my advertisement in the public notices column, which meant if nothing could be done, my admission would be deferred for a month. Lots of things were already in place. In 26 | Brief December 2014
those days, practically the whole of the legal profession would turn up to an admission party. I was the sole applicant and, fortunately still being with Stone James, they were the solicitors for The West Australian. Robert Ainslie QC got on the telephone and got a late public notice in. I was directed to attend the delivery door of WA Newspapers in the laneway alongside Newspaper House at 11.00pm. I purchased a copy of the newspaper so I was able to swear an affidavit that it had appeared in the newspaper at 11.00pm on the last day. But the then Chief Justice, Sir Albert Woolf, wasn’t too happy about it. He summoned me to appear before him at a directions hearing to resolve the issue. Ainslie QC had to appear and argue the point. Finally, he agreed to let my application go forward. But it was all pretty excruciating as it was not like I was in a group, one of 20 or 30 people applying, I was the only person applying. There was a special sitting of the Full Court to hear it. All’s well that ends well. It worked out, but it was pretty hair raising. Another occasion which comes to mind is the first occasion when I actually appeared against Sir Francis Burt. I was junior to Ken Hatfield QC in a case called Gurfinkel v Panizza which went up to the High Court in about 1966. Gurfinkel was a notorious litigant. I was greatly embarrassed because he turned up to the High Court in a hired dinner jacket with black tie. When I made my first submission, he applauded. Sir Garfield Barwick commented, “Mr Malcolm, if you cannot control your client, we will have to deprive ourselves of the pleasure of his company.” So it wasn’t a great start. Later, when I was in front of Chief Justice Woolf in another matter, my opponent was John Toohey QC. In making a point, I made a gesture with my ... hand ... and I sent a glass of water flying down the table into Toohey’s lap.
How did you feel the first time you stood up in court? I can recall that I was very nervous, and it was like going in to bat against Dennis Lillee, when he was in his prime. I think that it is very important never to lose that feeling of apprehension, the anxiety to get it right. I think that once you stand up, and you’re not nervous, and you’re not keyed up, and you are not ready to give it your best, that is the time to stop. Unless you really are on the knife-edge I don’t believe that you really can give it your best. No matter how many times I have had to make a speech, give an ex tempore judgment, or stand up in front of an audience, I know the day that I am not keyed up for it is the day I should probably start to think about giving it away, because perhaps you are not going to give it your best. As a student and a young lawyer, did you look up to any one in particular as a role model for your career? Yes, I spent that time when I was a summer clerk [at Joseph Muir & Williams] with Red Burt, who became a very important role model. He was a person who strove as far as one could for perfection in everything he did as a lawyer. Nothing was too big or too small, no case was not something that was worthwhile. I think he gave a very great example of service to the community and upholding the standards of the profession. I was actually articled to Robert Blanckensee in the firm then known as Stone James & Co, now Mallesons Stephens Jaques. He was a conveyancer, and he taught me a great deal in relation to the care that needed to be undertaken in the preparation of documents. I actually spent the great part of my articles divided in two periods. One period before I went to Oxford and another period after I came back; 8 months before I went and 16 months when I came back. But for a very substantial period of