Address On The Occasion Of The Retirement Of The Honourable Justice John Bryson
ADDRESS ON THE OCCASION OF THE RETIREMENT
OF THE HONOURABLE JUSTICE JOHN BRYSON
BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
BANCO COURT, SUPREME COURT OF NEW SOUTH WALES
SYDNEY, 28 FEBRUARY 2007
Almost 21 years ago your Honour was sworn in as a judge of this Court. You sat in the Equity Division for about 18 years and in the Court of Appeal for three years. This is a record of service to the administration of justice that few can equal. It is fitting that so many of us are gathered here today to honour it.
Being in your Honour’s presence has always been, even from the bar table on the losing side, a delight of the first order. Appearing before you was always a pleasure. However, what transformed pleasure into delight was your Honour’s personal style – in essence, a black letter lawyer with élan – which style was, quite simply, inimitable, in the strict sense that it defies imitation.
Your Honour has an inexhaustible supply of arcane anecdote, informed by a wide ranging intellectual curiosity, a keen eye for the ribald and the ridiculous and a fascination, bordering at times on the world weary, for human fallibility.
Everyone in this room has relished your Honour’s mode of expression: cliché free, pregnant with insight, deliciously unpredictable, devoid of malice, uncluttered by excessive verbiage, manifesting a love of language and exuberantly sprinkled with wit – that form of humour which illuminates the truth. Often your expression was self-consciously old fashioned. However, as the English essayist, drama critic, caricaturist and parodist Max Beerbohm once put it: “To be outmoded is to be a classic, if one has written well.” You are a classic.
For those of us who have had the pleasure of interacting with you frequently, we enjoyed examples of your facility with words on a daily basis. You are, so far as I am aware, the only judge of this Court, perhaps of any Australian court, who has ever had the privilege of a personal column in the journal of the Bar Association. Entitled “Brysonalia”, the column set out quotable quotes from your early cases. Regrettably, your Honour’s prolific output of such quotes has, by and large, not been recorded. On this occasion I wish to place two examples from my time at the bar on the record.
I once attended a conference on “Law and Literature” at a time when, from my ignorance, I thought that this sphere of discourse had something to do with “literature” rather than, in the post modernist fashion, a preoccupation with something called “texts”.
I was sitting next to your Honour during an address by a feminist scholar – it was early days in the process of gender sensitising lawyers. The scholar announced to the assembled audience that it was essential that in the future all lawyers should be “femocrats”. Immediately, your Honour put your head in your hands and said: “How can she mix those Latin and Greek roots like that? The correct word, if any, is ‘gynaecrat’.”
I give one other example of your Honour’s style. An issue arose in a case as to whether or not certain water licences fell within the extent of the security under a mortgage of rural properties. I handed to your Honour an extract from the 9th edition of the English text Fisher & Lightwood on Mortgages which stated, without citation of any authority, that “all incidental rights … will follow the security”  . I then handed to your Honour an unreported judgment of your brother Mr Justice Young, who quoted that sentence and applied it to conclude that a licence for an abattoir was within the mortgage . Finally, I handed to your Honour the 10th edition of Fisher & Lightwood on Mortgages which contained exactly the same sentence but, on this occasion, had a footnote attached to the words “all incidental rights”, namely a reference to the unreported judgment of Mr Justice Young .
Your Honour inspected each of the three documents, looked up and said: “This is going to be very difficult to stop”.
Your principal contribution to this Court is, of course, in the judgments your have delivered over some 21 years. According to a computer search you have sat on about 2,600 cases. They cover the full range of equity jurisprudence in this State and, in recent years, the even broader range of the civil appellate jurisdiction.
You brought to the judicial task a profound understanding of, and empathy for, the role of legal practitioners, which you had acquired over many years of practice both as a solicitor and as a barrister. You were always aware that matters are not always as they appear to be, particularly by the time a dispute reaches an appellate court.
Your Honour’s insight in that respect was no doubt informed by your role as instructing solicitor for the State Crown, appearing for the GIO, in the classic case of Jones v Dunkel when the High Court, somewhat scornfully, commented on the failure of counsel to call or explain the absence of the defendant and crucial witness, being the truck driver accused of negligent driving. You maintain to this day that the High Court should have taken into account the possibility that there may have been such an explanation that could not have been safely adduced before a jury. Indeed there was. In that case, it was difficult to explain to the jury that had to decide whether the defendant had been driving negligently, that he could not be called as a witness, because he was in prison interstate having been convicted on a charge of culpable driving causing death.
Your Honour always approached each individual case without preconceptions and with a willingness to hear the facts and arguments as they evolved in the course of a traditional common law trial.
Those appearing before you never had a sense that you had already formed a view or that you intended to determine the matter in accordance with some pre-existing philosophy of the law, let alone any pre-existing social philosophy. Your focus was always on what the law and the facts required in the individual case. This approach made your Honour frustratingly difficult to predict in prospect. No one left your Honour’s court without the complete conviction that they had had a fair hearing according to law.
In words with which you may agree and in a style not dissimilar to your own, Max Beerbohm, the foremost drama critic of his day, expressed a preference for attending trials over the theatre and, whilst preferring the Kings Bench, said this of Chancery cases:
Your Honour also always evinced a great love for the theatre of the law, albeit with a more discerning eye for the verbal and tactical gymnastics of counsel.
“There is a certain intellectual pleasure in hearing a mass of facts subtly wrangled over. The mind derives therefrom something of the satisfaction that the eye has in watching acrobats in a music-hall. One wonders at the ingenuity, the agility, the perfect training. Like acrobats, these Chancery lawyers are a relief from the average troupe of actors and actresses, by reason of their exquisite alertness, their thorough mastery (seemingly exquisite and thorough, at any rate, to the dazzled layman). And they have a further advantage in their material. The facts they deal with are usually dull, but seldom so dull as facts become through the fancies of the average playwright. It is seldom that an evening in a theatre can be so pleasantly and profitably spent as a day in a Chancery court.” 
Your Honour’s long service as a judge of the Equity Division has meant that your Honour’s judgments cover the entire range of that diverse jurisdiction. You have delivered judgments on patents and trademarks, company takeovers, special investigators, disclaimers by liquidators, the disqualification of company directors, the validity of meetings, the efficacy of a deed of charge, the interpretation of contracts, the incidents of a joint venture, the interpretation of wills, the fiduciary obligations of solicitors and partners, the law of landlord and tenant, the role of equitable rights under the Torrens system, the interpretation of superannuation trust deeds, the law of estoppel by convention, the rights of patients to access their medical records, the requirements for the admission of documents into evidence, too many permutations of Family Provision Act conflicts to mention and numerous other matters covering the full panoply of equity jurisprudence.
Your Honour brought to the appellate process your long experience as a trial judge and emphasised the respect required of an appellate court for judicial discretion. However, your elevation was accompanied by a noticeable restriction on your Honour’s usual list of conversation topics. We all lost the benefit of your running commentary on the inadequacies of the Court of Appeal.
This appointment broadened your Honour’s caseload: returning to an early practice with personal injury law, where your Honour displayed a compassion for plaintiffs that few had predicted. In your three years on the Court you delivered judgments of significance on such matters as the law of defamation, the liability of public authorities and the law of fiduciaries, notably observations about the threat to proper principle occasioned by the restitution industry.
“Designation of a relationship as fiduciary”, you said, “is not a signal for exercise of judicial bounty” . No one else has put it quite like that.
In similar style, your Honour rejected the proposition that it was negligent for two parents to go to sleep at midnight on the basis that it was not reasonably foreseeable that the guests at their teenage son’s party would attempt to reignite a barbeque at 2.00am and proceed to douse it in methylated spirits. Your Honour produced the definitive judgment on what was reasonably foreseeable conduct by teenage males in such circumstances. You identified as foreseeable: “Horseplay, leapfrogging, dancing on tables, swinging on tree branches and arm wrestling”  but not throwing metho on a barbeque.
I know that all the judges of the Court and the profession as a whole are grateful that your contribution is to continue. I could not be more pleased personally that your Honour has agreed to return as an acting judge of the Court, to sit both at first instance and on appeal. Your continued presence will maintain the strength of this Court.
As is reasonably well known, I have more than a passing interest in legal history. I have, accordingly, particularly appreciated our own exchanges on historical matters. Your Honour’s breadth and depth of knowledge in this regard is awe inspiring. You are able to summon from your prodigious memory a broad range of anecdote and information about British and Australian legal history, usually replete with full quotation.
In this, as in so many respects, the entertainment and educational value of interaction with your Honour has always been of the highest order. Inevitably, in the future, that interaction will be less frequent, albeit not absent. Insofar as it is reduced I, like all your colleagues, will miss, to that extent, the way that your joy for language, for history and for the law has enriched all of our lives.
 Fisher & Lightwood’s Law of Mortgages 9th ed London Butterworths 1977 at p37.
 Daniels v Pynbland Pty Ltd NSW Supreme Court, unreported, 12 April 1985.
 Fisher & Lightwood’s Law of Mortgages 10th ed London Butterworths 1988 p57 fn(m).
 Max Beerbohm Yet Again, William Heinemann, London, 1951, “Dulcedo Judicorum”, pp275-276 accessible at http://www.worldwideschool.org.
 Blythe v Northwood  63 NSWLR 531 at .
 Parissis v Bourke  NSWCA 373 at .