At the NSW Bar’s Bench & Bar dinner on Friday, 6 May 2016, Tony Bannon SC spoke in honour of Bob Ellicott QC. Tony’s speech was at once both respectful and hilarious.
Bob was appointed silk in 1964. He was solicitor-general from 1969 to 1973, Attorney General for Malcolm Fraser from 1975 to 1977 (and in other Ministries thereafter), and a Federal Court Judge from 1981 to 1983. He is now 89, and is still appearing in the High Court.
Bob’s extraordinary abilities as an advocate are legendary. He has no peer. No wilier advocate has ever appeared in an Australian courtroom.
Tony Bannon SC was Bob’s junior for many years. He identified 6 rules of advocacy according to Bob. What follows does not do justice to how funny it was.
Rule 1: Hate, loathe and distrust the enemy. Nothing personal of course.
Rule 2: When you enter a Courtroom, do not shut the door behind you. If you must shut a door, make sure there is a window open.
Rule 3: You need to be able to “step off both feet”.
This essentially means that your argument needs to be structured in a flexible way, so that if there is a turn against your primary proposition, you need to be able to take the argument in a different direction but still be able to win. Bob was an absolute master at this.
Rule 4: Travel far and travel well.
When there is an opportunity to travel, seek to persuade the Court, or the client, to take it. On the Charles of the Ritz case, Bob managed to persuade Justice McLelland to take the Court to Paris, London and New York, to take evidence. On another occasion, Bob spent many months in the Caribbean on an arbitration, with Francis Douglas as his junior.
Rule 5: There are no problems, only solutions.
Bob never perceived any turn of events as fatal. He would always find a new way of tackling the case, to deal with it – blue eyes twinkling.
Rule 6: “We rely on it”
Occasionally, during a trial there would be an unexpected turn, which everyone involved in the case imagined was fatal to the central plank in Bob’s argument.
Everyone except for Bob. He would find a way of turning it to his advantage.
The Judge will have seen the drastic event, and take three steps.
The first step was to set the trap, by asking Bob to accept that a certain piece of evidence must lead to a particular finding.
Bob would say “yes”.
The second step was to lead Bob into the trap, by saying to him that this finding must mean that Bob’s central proposition must be wrong.
Bob would say “yes”.
At that point, the Judge would spring the trap, by asking Bob to agree that, because of that particular factual finding, Bob’s case had to fail.
But Bob would say “No your Honour, we rely on it”.
The Judge would sit there agape, while Bob proceeded to explain why that new (apparently fatal) factual finding was exactly what Bob had wanted all along.
And Bob would still win.
Only the great Bob Ellicott QC could do that.
[Note: I obtained Tony Bannon’s consent before issuing this post]