Merit and Paddy Bergin: Bar and Bench Dinner 5 May 2017

It is my very great honour to have been asked to speak tonight.

First very importantly!! The twitter hashtag for tonight’s event is #BandB17. This

hashtag has been “workshopped” with a former president and she says it’s OK. So

I guess it’s OK. TWEET AWAY. Ping me at @MPainterSC.

I have been asked by many colleagues what my topic tonight might be. Suitable

subjects were suggested. Quite a few brave souls asked (with an air of trepidation)

whether I would be speaking about equitable briefing. I think the exact quote from

one was “For god’s sake you’re not going to bang on about it are you?” I’m not

entirely clear why it excited such attention as a possible topic, and perhaps the next

speaker will expand on it, but rest assured, nothing about it from me tonight.

Instead I want to talk briefly about merit.

This is a profession which is fixated on merit.

From the time we commence as readers we are proudly told what a meritocracy the

bar is; how promotion is based on hard work and merit. We’re told from the time we

are readers “work hard and do good work and all will be well.” And it’s true. Mostly.

For some.

But not for everyone. Not for everyone all of the time. Let me tell you why. Pause for

a moment to consider the double standard. You – well the ladies at least – know

what I mean. Here are some examples:

He is strategic; she is calculating

He is passionate; she is hysterical or emotional

He shows leadership; she is bossy

He is a perfectionist; she is a control freak

And my personal favourite – he is assertive; she is aggressive

While they might be amusing in the abstract, double standards can be insidious

because of how they impact on women, in the context of judgments about merit –

and in our profession that is all the time.

In our pursuit of merit at the NSW Bar we encourage and reward fine advocacy. We

reward and admire a range of styles of advocacy – consider please the contrast

between, say, Hutley SC at full throttle, veins throbbing, bellowing at the witness

until the observer fears for his health (Hutley’s that is!) with, at the other end of the

spectrum, Sheahan QC, inexorably and irresistibly making his case with an

acuteness of purpose and a silky swish.

Most of us fit somewhere in the middle. But double standards mean that women

advocates who stray towards the Hutley end are labelled aggressive, or calculating

or bossy [you get the picture] – and in women those qualities are a bad thing

(apparently).

We must stop this application of double standards. Collectively, in the pursuit of

merit, we must reject these labels.

Women are now 22% of all barristers. In the 10 years and under band – that is the

future of the Bar – women account for more than 36% of all barristers. And that

percentage is increasing every year. The presence of women barristers in every

facet of life at the bar is a fact of life. It isn’t going to change, notwithstanding the

mournful complaints from a few short sighted dinosaurs who lambast the mildest of

innovations, and who call for a return to some retrograde halcyon period (known

only to their imaginations) when men were men and women weren’t barristers. Let

me tell you, gentlemen – ain’t going to happen! Move aside, your time is long gone.

As the progression of women results in inexorable moves towards equal numbers

we must strive to ensure that we reject, and firmly so, anything which applies a

different standard to women advocates than to men advocates. Merit requires it.

Merit requires that we are judged on the same criteria. Merit requires that we reject

a two tiered system, where men are encouraged to develop their own style of

advocacy while women are pigeonholed into a more limited range of styles.

Some of us have broken through those shackles already – so we know it can be

achieved!

Merit was never in doubt in relation to our guest of honour, the Honourable Patricia

Bergin SC. Like other stellar women – Madonna! Cher! Beyonce! – she is known to

us simply by her first name, Paddy!

When Paddy came to the bar in February 1984 there were 50 women barristers – of

a total of nearly 1000 barristers. ( That equates to 5%!) There was only one female

silk at the time – but what a silk – Mary Gaudron QC.

By the time Paddy took silk herself in 1998, there had been a veritable explosion in

the numbers of women at the bar. There were 210 women practising at the Bar

(out of 1825 – that equates to 11.5%). There were 5 women silk (Robinson QC,

McColl SC, Bennett SC, Katzmann SC and Bell SC). What a bunch of under

achievers!

Paddy’s appointment as silk was a cause for great celebration. I was Paddy’s

reader on Ninth Floor Selborne Chambers and I remember the occasion well. I was

a naiive and unsophisticated girl fresh from Canberra and I had never seen so much

champagne in my life. Over the course of the evening the celebrations moved to

various increasingly insalubrious locations. Eventually the only ones left standing

were Bergin, Bell (Virginia Bell that is) and me. I think I was there to provide security.

I failed miserably! But Paddy remained at all times upright and sober. I swear.

After a 3am visit to Maisy’s on Military Road we struggled back into taxis and

eventually to our various homes. The next day I staggered into chambers at about

noon, to be met with Bergin’s gimlet glare. She said witheringly that she expected

better from me, and that SHE had been at an event since 9am, giving a speech, on

a boat! I don’t know how she did it!

As we all know, Paddy was appointed to the Supreme Court in early 1999. She was

the first woman appointed to the Equity Division. So much has changed.

Some of us in the room will remember the particular barbs thrown around that time

by one Justice Meagher about what he disparaged as “feminine logic”. Of course,

as the first woman appointed to Equity, the topic was a live one at her swearing in.

But she – of course – handled it with aplomb. Drawing on Meagher’s stinging

denunciation of the English Court of Appeal, and noting that that Court had, at that

time, no women members, Paddy observed in her swearing in speech that … “on

balance his Honour's public musings about feminine logic have been but well

disguised pleas for the appointment of a woman to Equity.”

Paddy quickly settled down to the work of the Equity Division and before long was

running the Commercial List, and then was appointed Chief Judge. Again, she was

the first woman (but happily, not the last) to be appointed to that role.

Paddy is certainly no shrinking violet, but nor is she an attention seeker. This has

meant that juicy anecdotes and salacious bits of gossip have been difficult to come

by. In desperation I turned to that failsafe source of gossip – no not McClintock SC

– but the internet! I had an exchange with the clever young things who maintain a

series of linked internet sites with the wonderful title #shitjudgessay, said to be

administered by one William Gummow. Truly – look it up. Sadly, notwithstanding

the impressive collection of snippets of transcript (especially from the the High

Court and featuring a lot of Jackson QC and Hutley SC!) they had nothing for me.

Most of her cases were serious and involved important points of principle, but were

light on entertainment. There were, however, a few cases which I found amusing.

First, there was the case involving an ‘offensive’ backyard said to be located next

door to a District Court Judge. The judge and his wife sued their neighbours over

that backyard, which was said to be offensive as it had, as a permanent feature,

more than 36 pairs of ladies’ underwear, displayed like bunting. In addition, there

was a scarecrow said to resemble the judge, and as an added bonus, whenever the

judge entertained, a nude picture would also appear in the backyard [my research

gets a little fuzzy here, I can’t determine the subject of the nude picture]. Sadly for

all of us, after Paddy sent the matter to a mediation there was a confidential

settlement. I for one would have enjoyed reading that judgment.

Secondly, what seemed like an anodyne matter in the Corporations list has given

rise to what must be a candidate for best opening line in a judgment. (There are

competitions for such things.) The case was enticingly called:

In the Matter of Wings-Aus Holdings Pty Limited trading as Hooters Restaurants

Australia & New Zealand (in Liquidation) [2009] NSWSC 667

and Paddy opened the judgment with this:

“Establishments known as “Hooters”, casual beach-theme restaurants, have been

operating throughout the world [and so on].”

Finally, it is a sign of the esteem with which she is held that so many people were

eager to give their best Paddy stories. She is respected and admired by all, and

even – in that chaste way of barristers – loved!

Please charge your glasses, be upstanding and join me to toast the very good

health of our guest of honour. To Paddy!