Tom Bathurst admits he finds dealing with the media a challenge, but it is something he is getting used to.

Since becoming the 17th chief justice of NSW in July last year, Bathurst has spoken openly on many topics, including large law firms, timesheets, alternative dispute resolution and shock jocks. In doing this, he has been lauded by many from within and outside the legal fraternity for speaking with a degree of clarity and frankness that has made for a refreshing change from the bland corporate speak and legalese often spouted by senior members of the profession.

At a conference in April, Bathurst was not afraid to speak his mind about the culture being promoted by large law firms, which he believes is placing an emphasis on commercial outcomes that can lead to some serious ethical challenges.

“[Young lawyers] will avoid firms that are governed by the billable hour,” said Bathurst at the conference “They won’t stay long, so it is not a [good] commercial [strategy] in the end.

“The courts now attract the brightest graduates, and the one thing they have in common is a desire to avoid the mega firms. It is a problem, and one that these firms are going to have to confront [lest they] end up with mindless drones adding six minutes here and there, to the general dissatisfaction of clients.”

Not surprisingly, such forthright comments drew the ire of large law firms. A fellow panel member at the conference, Large Law Firm Group chairman and Clayton Utz partner Stuart Clark, defended the honour of large firms.

“Yes, we do look at billings, but the suggestion that we are sweatshops is not reflected by what actually happens in firms,” he said.

Suddenly, the relatively new chief justice was at the centre of a controversy about law firm size and timesheets. While he does not back away from those comments, he is more measured when discussing timesheets and large law firms now.

“It is necessary to find an alternative to timesheets, as it is not necessarily the best way to measure a lawyer’s work,” says Bathurst as we chat in a room that is now full of old legal books, but has served as the dining room for judges of the NSW Supreme Court.

This room also has a portrait photograph of each of the chief justices in NSW. Bathurst’s pic was recently added to the 16 other chief justices, which include three generations of lawyers from the Street family.

More than 40 years in the law

Bathurst graduated from Sydney University in 1971, studying law at a time of great social change. He says he was on the “periphery” of the mass protests against the Vietnam War and the 1971 rugby union tour by the South African Springboks, which was the last sporting tour by an official South African side to Australia until apartheid was dismantled in the early 1990s.

“It was a terrific time to be at university,” Bathurst recalls fondly. “I enjoyed studying law and, in particular, corporate law.”

That latter topic would be an area that Bathurst the barrister would focus on as his career progressed, however, it was private practice where he gained his first role upon graduating, joining the Sydney office of EJ Kirby & Co, where he was made a partner by the time he was 28.

“When I joined Kirby & Co as a clerk I had a lot to learn about the practical application of law,” says Bathurst.
Quite quickly, he got down to the practice of law, with his time spent acting on conveyancing, litigation and commercial matters.

In 1977, shortly after being appointed a partner, he was called to the Bar, joining the renowned Wentworth Selborne Chambers in Sydney.

“The Bar always held a lot of appeal to me,” says Bathurst, who honed his courtroom skills in those early days as a barrister mainly through appearances in various local courts around Sydney. “Appearing in court is quite unnerving at the start of your career, and you learn a lot through trial and error.”

In 1987, Bathurst was appointed a Queen’s Counsel, being successful on his first application for silk. He says there were “real economic consequences of obtaining silk”, as in 1987 he was married with a young family and a mortgage.

“The process for gaining silk was a lot different from the process today,” says Bathurst, noting that reforms to the silk application process in various jurisdictions in Australia have made the process more transparent.

Bathurst was instrumental in moves to make the application process for silk more transparent in NSW when he was head of the state’s Bar Association between 2009 and 2011 and a member of its executive committee for almost a decade.

As president of the NSW Bar Association, he introduced reforms in 2010 that reduced the number of selectors for silk from his own Selborne Chambers. Consequently, barristers from a greater variety of chambers were successful with silk applications during his term as president of the association.

Bathurst was a QC for 24 years prior to his appointment to the chief justice role. As his tenure as a barrister progressed, Bathurst’s early liking for corporate law as a law student developed to a passion for corporate legal matters as a senior barrister, and he went on to act on some of the most important cases to affect corporate Australia throughout the 1990s and the first decade of this century.

“I really enjoyed acting on matters that went to the heart of specific areas of legislation,” he says. “The sums of money involved or size of certain cases was not so much of a concern for me, and some of the most enjoyable cases

I acted on would be perceived as relatively minor.”
Bathurst rather modestly doesn’t like to nominate individual cases as carrying more weight than others. However, he acted on cases that have had a lasting legacy.

In 1995 he represented AWA Limited in Daniels vs Anderson in the NSW Court of Appeal. Bathurst acknowledges it was an “interesting case”, as it had massive ramifications with regards to the standards by which company directors would be required to comply.

Towards the end of his career as a barrister, Bathurst acted for the directors of James Hardie in 2010 in a successful appeal to the NSW Court of Appeal that overturned a previous decision that banned the former directors from sitting on boards for five years and fined them each $30,000.

This decision was then overturned in an appeal to the High Court by the Australian Securities and Investments Commission in May this year while Bathurst was safely ensconced as the NSW chief justice.

Becoming the umpire

While Bathurst was able to put media intrusions largely to one side while he was a barrister, as the chief justice that is not possible.

Speaking with the press and appearing at conferences comes with the job, but Bathurst believes there is a difference between dealing with the media and letting them influence your professional conduct.

“When I was a player as a barrister, if a case was being covered by the media it would not influence how I would approach it,” he says. “Now ... as an umpire and acting as a judge, that is still the case.”

Bathurst says he was humbled by the warm reception he received when he was appointed chief justice, as his ascension to the leading judicial role in Australia’s most populous state was his first appointment to the bench.

In this role he is now expected to respond to issues that affect the whole profession, such as the costs of litigation, gender diversity and the high rates of depression among lawyers.

“Being a lawyer is a stressful job,” he says. “Criminal and family lawyers often deal with distressed and vulnerable people, while commercial lawyers also face a lot of pressure, and it is not just in those areas where lawyers face a lot of stress,” he says.

“What is important for the profession is to recognise studies that deal with depression in the profession and support further studies into this issue.”

One of the causes cited for the high incidences of depression among lawyers is that the long working hours make it difficult for lawyers to achieve a proper work-life balance.

Bathurst’s hours are certainly not kind, but swimming and tennis are his favourite sporting pursuits and he says “for his sins” he enjoys watching those perennial underachievers, the Waratahs, in the Super Rugby championship.

Bathurst’s love of sport and spending time with his wife and children are common priorities for people from all walks of life.

Indeed, the only time that Bathurst gets slightly riled during this interview is when he is asked if judges are fairly portrayed in the media.

“The perception of judges as being out of touch by sections of the media is not right,” he says. “We get to see people from all walks of society and judges take their duties very seriously and, in my mind, get it right most of the time.”