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Pat McCabe

Pat McCabe has recently retired after fifty-six years as an insurance lawyer based in Melbourne. Pat’s legal career spans common law, litigation and commercial fraud, major government inquiries and royal commissions. He was a co-author of the ‘bottom of the harbour’ taxation investigation report in 1982. He is highly respected for his grasp of statutory common law rules and procedures and state and federal governments regularly sought his advice throughout his career.

Pat had a long-standing interest in insurance and personal injury litigation. He advised the Victorian government in relation to serious injury policy in respect to the restoration of common law rights for seriously injured workers and on policy issues arising under the tort reforms and the implementation of the reforms in the Wrongs Act (VIC 1958). He was also responsible for overseeing the drafting and introduction of significant legislation in the areas of accident and injury claims, including the serious injury provisions of the Accident Compensation Act and the second reading speech for the reintroduction of common law rights.

Michelle Britbart

Michelle Britbart has been a barrister at the Victorian Bar since 2004. Before that she spent nine years as a solicitor, mainly working in personal injuries and government litigation at Dunhill Madden Butler. She was appointed Queen’s Counsel in 2015. Michelle’s main areas of practice are common law jury trials in the areas of public liability litigation, personal injuries and other medico-legal matters. She undertook a Master’s in Health and Medical Law at Melbourne University and holds a Graduate Diploma in Genetic Counselling from Murdoch Children’s Research Institute and the University of Melbourne.

Pat’s story

My journey has been one that doesn’t have many comparatives. I did my degree part time working in the state Crown Solicitor’s office and then the Parliamentary draftsman office, went to the bar, left and became a senior partner in a major law firm, in the course of which, due to a conflict of interest issue in the firm, I became a sole practitioner for a time before returning. That breadth of experience gave me an appreciation of the different skill sets required in each area of practice.

The snuffbox of power

I spent my first ten years in the Crown. I firstly worked in the criminal law branch, instructing the prosecutors—including Bidstrup, Moloney, Mullally, Moore and Byrne—in the criminal courts of general sessions, now the County Court. Each day I would witness the best criminal lawyers arguing the principles of evidence. It was inspiring to see the great names—Cullity QC, Gillespie-Jones QC, Galbally, Dunn, Walker, Bryson, Reid and Gray—in action. The one setback was that the position did not permit attendance at lectures. One day in 1965 John Finemore QC, the Parliamentary Counsel, invited me to his office. He opened, ‘I just want to inform you that your record is the worst of all the part time lawyers in the crown. But what it reveals is that you’ve been out after dark, and that’s the role. So I’m going to nominate you for Secretary of the Standing Committee of Commonwealth and States Attorneys.’ He elaborated that Attorney General Sir Arthur Rylah was keen to control the agenda of the committee and prevent a takeover by the triangle of power in Canberra. The Committee was what I call the snuffbox of power, where law and politics collided. It was an enormously dynamic group including all the attorneys, their senior officers, and officers of the states. It was responsible for the creation of the Uniform Companies Acts and the Petroleum OffShore Lands legislation. From time to time I’d be requested to draft bills for the committee. I drafted Australia’s first privacy bill, the Listening Devices Act.

I completed my articles under the Crown Solicitor in the Common Law. The white ribbon briefs where only delivered to the those who where eminent and highly ethical in the fairness of presentation of the Crown case.I was able to instruct counsel such as Jack Winneke and Stephen Charles whose later achievements underline my good fortune in being able to learn from them.

I decided I would go to the bar from there, but a call from Rob Elder of Madden Butler and Graham, the predecessor firm of Dunhill Madden Butler, persuaded me to join the firm in the insurance group. As most litigation involves insurance I recognised the offer was an opportunity. Four years later I finally got to the bar and had the privilege of reading with two of the most eminent common law counsel in Sher QC, who took silk whilst I was his reader, and then Stanley QC. I was at the bar for eight years and authored the highly controversial McCabe-La Franchi ‘bottom of the harbour’ report into tax evasion (1982). The findings of that report and the Costigan report created a public and political furore about tax evasion. The profile wasn’t comfortable for me—there were threats to La Franchi and myself. Dunhill Madden Butler then offered me a partnership, I thought ‘why not, it’s a safe place out of the spotlight I’ll go back there for five years.’ Ultimately five years stretched to thirty-five years, with a brief gap in the middle when I set up my own firm, McCabe’s. This was necessary as I was acting for a person of interest in the Ambulance Services Royal Commission in 2000, when my firm merged with Deacons who were the solicitors to the Royal Commission. I came back to Deacons as a partner at the conclusion of the commission in 2003.

My work focus changed to delivery of litigation services to the Victorian Government and medical defence.I retired as a partner in 2009 and continued as a consultant to the government on the Bushfires Royal Commission and then assisted Nicole Wearne and Abigail McGregor in the defence of the claims against the State.Finally retiring in 2016 after a fifty-four-year career that created a truly rewarding life enriched by a legacy of friendships such Michelle.

Moments that changed me

John Finemore QC influenced me more than anyone else. He was a superlative draftsman and a brilliant lawyer. During his time 4600 bills were passed. He strongly believed in providing greater opportunities for women in the law. He ignored the barriers to married women being appointed permanent public servants and employed women lawyers even though they were banned in the Crown Solicitors office and unknown in other parts of the public service. He was years ahead of his time. John regarded women as superior in abstract reasoning and to be trusted to deliver. Women had the strength of mind to accept the greatest challenges in the law: drafting legislation; being in the parliament; able to adapt and make amendments as necessary and see through the business of the government of the day. He proudly proclaimed the intellect of women with these abilities provided security of good laws for the state. During my time in the Parliamentary Counsel’s office, John brought in Jan Wade, who later became Attorney General, Rowena Armstrong QC who later succeeded John as Parliamentary Counsel and the present Chief Justice of the Supreme Court Marilyn Warren, amongst others.

One of the reflections of my early career was that there was no such thing as structured mentoring. Often I had to work out by myself whatever the purpose was and create a pathway to get it done.

And time was of the essence. So energy levels were demanded which are normally not required in every job. When Finemore instructed me to create the first privacy bill in Australia there were no drafting instructions. Rather it was research English and American legislation and draft a bill for the committee to debate. Another example was when Sir Daryl Dawson QC, our Solicitor General, and Haddon Storey, the Attorney General, met with me in relation to the appointment as an investigator into the ‘bottom of the harbour’ schemes. I said ‘where do I start?’ and Sir Daryl replied, ‘with a blank sheet of knowledge’. The absence of structured mentoring was such that at times in my career I felt I was running matters about which I was totally inexperienced. I can remember running a Wrongs Act claim in 1970 without knowing how to assess a Wrongs Act claim. I learned by trial and error and bluff. I hope I passed on the importance of self-confidence and bluff in my mentoring. Building self-confidence in your lawyers and being able to commence your letter of advice with ‘In my opinion’; that’s the thing. You’ve got to develop the confidence that comes with a positive mindset and believing that we are all equal in and before the law. And that was clearly something I learned from being in the Crown where I could go down the corridor at the same time as the Deputy Premier and the Attorney or Solicitor General. As a result, I would always assert to my young lawyers that they should never be overawed by any opponent.

Building a team of fearless advocates

I had one rule in life—to give to my team members what I would have hoped to have had at the same time in my career. Young lawyers often have a fear or under-assessment of their own skill set or potential. But they need to see themselves as equals with older practitioners and have a go. Having been at the bar it was always foremost in my mind that every member of my team would have the capacity to appear in court, and develop the confidence to address the court and deal with whatever the other party is going to raise. And eighty percent of what the other party was going to raise would not be contained in their affidavit of support. So you’ve got to be well prepared and intuitive in your ability to respond on your feet.

Frankly, insurance law is a ‘non-sexy’ area. It is not the kind of practice where you could go home to your family and say ‘I’m doing the next big commercial deal and Freehills are opposed to me!’ So I had to make ‘working with Pat’ something that was attractive. If you say ‘insurance’ it sounds boring but we were dealing with people and acting for the Transport Accident Commission or the VWA. We developed a strong ethical standard that became recognised and well regarded. I wanted to be seen as leading a group who were regarded by their opponents as fair but hard and be rated by the client as the best service providers on the panel. Part of my hyperbole was to say, ‘work with me for a year and I will make you a lawyer with at least three to five years’ experience at the end of it. You will be able to leave me and go out into any other field of litigation and be immediately competent to a level of seventy percent, you will then have the chance to pick up the other fifteen percent’. None of us get beyond that.

Altered states of mind

The 1980s was an era when diversity was all of a sudden no longer the elephant in the room. People were asking ‘how can we get women into the partnership?’ In the ’90s we had a young chief executive partner in David Nathan. David wanted a firm with people who had had exposure to life outside the law, and he wanted more women in the firm. But frankly, there were some people in the firm who initially found it hard to work with a woman. Human Resources would ring me and ask, ‘Pat can I send someone down to you?’ And they’d arrive with a Kleenex box. I think we had to have two in a room for a while because I had so many in the team. And it was in an era when the TAC would give me as much work as I could handle, so that was great.

There were a few barristers who also had difficulty accepting women instructing in matters. They would say things like ‘I don’t want to deal with you’, ‘get Pat up here.’ I even wrote two letters to different silks informing them that their conduct was inappropriate, and if I had another report about them I would inform the bar council. That worked. How to manage your counsel is an art, particularly when settlement offer and counter offer are not far apart. I instilled into the team that the instructing solicitor, no matter their level of experience, is the most important part of the process in court, they’re the ones who give instructions to counsel, not take instructions from counsel, and any developments in instructions were made by the solicitor consequential upon making a recommendation to the client.

McCabe’s wisdom

I regarded annual performance reviews as a sterile process. I preferred personal bi-monthly coffees, lunches or whatever with each member of the team; I’d take them out of the office and we’d sit down and enjoy the moment. I understood about people’s need for diversity or part-time work or trying new things. I had someone who wanted to be a stand-up comedian for two days a week, and someone else who was an author and producer of plays. So I would help where I could to enable them to combine their hobby and their career. Likewise, with women requiring flexible hours or days. The ideal was to achieve the best outcome and realise potential in all endeavours. I would tell the team that I understood that all of them would one day leave but that did not alter my regard for them or my willingness to help them. Otherwise anyone who wanted my chair was free to apply—they just had to beat me to the desk at 6am.

I can remember having a lunch with Michelle and saying, ‘Tontini-Filippini is the only ethicist in the state, and he presents a very Catholic view on all ethical matters. I see you as having the potential to develop a role in ethics, and you could be the next go-to ethicist lawyer in this state. So I want you to push by getting into the medical field,’ where the big ethical issues were.

I used Sir Daryl Dawson’s ‘blank sheet of knowledge’ philosophy, and I also had other phrases I used, like ‘bare desk energy’. That means you can get energy out of a bare desk, because it’s there to be filled. In other words, you should never be afraid of not having any work. It creates some momentum; people will find you and realise you’re available. Another is ‘going into a tunnel where there’s no light at all’ and ‘finding a pathway to use your ideas’. These were strategies to deal with the need to be positive no matter. As mentor you’ve got to be able to develop those notions as part of building confidence. Even in the face of superior court precedent I would say, unless it is a decision of the High Court, find a point of difference. I had no involvement in Michelle’s plans to join the bar but I remember telling her ‘I expect you to apply. To be a leader for women it’s very important that you take the next step.’

I think mentoring as understood today is more a management tool of this century, just as leading and managing people was the phrase for the last century. This century there is an expectation that a mentor will provide a structured process. My approach was more tilted to the deep end experience with support. In my group I had cells led by members with expertise in particular fields, for example, medical or the AMA guides, drafting and VCAT. The team rotated and were then given active roles in preparation of advices and appearances in court at directions hearings and at conferences. They would then be thrown in the deep end with my assurance that I would be holding them by the hair and never let them drown. There is an enormous gap between someone being a very competent student with a great degree, and being successful in practice, so it’s an extraordinary privilege being their mentor; to be presented with a lot of plastic and putty, and effectively create the pillars for their careers and love of the law.

Although it was a privilege to be a mentor, I also did it because I had a personal advantage in being able to build a team who were loyal and were fantastic in the way they delivered their advices. When you come into a law firm it’s not good to learn by happenstance and working it out. You’ve got to be smarter than that in managing your people. We built a consciousness about how to think outside the square and to be productive both as individuals and as team members and enjoy and have fun as part of the team. And yes, celebrating our victories was done robustly. There were fourteen in my TAC team and thirty-six in my VWA team.

Building empowerment means there’s a lot of personal trust both ways. But when you go to the bar you’ve got to develop a relationship in that sphere, and likewise when you go to another firm, even though I’ve built you to go to another firm, if you’re opposed to me, yeah, look out!

Michelle’s story

I met Pat while I was still at law school. I completed a summer clerkship at Dunhill Madden Butler and I spent some time in the group that Pat headed. The following year I started working for Pat as an articled clerk. He was really my first contact with what the law is about and how the law is practiced, and working with him set the scene for where things were going to go.

Try and swim, don’t sink …

Our mentoring relationship evolved naturally. I think mentoring, for a lot of high achieving people, can be about their own egos. For Pat it never was.

The importance of hierarchy in some law firms can mean young lawyers really underestimate themselves, as Pat said. He was different because he believed in us and trusted us to achieve, whilst always being there in the background to pick up the pieces if something went wrong or to gently direct us towards the right answer. And that was huge. For instance, I’d been in the group for about a month and one of the first year solicitors was leaving to travel for twelve months. Pat walked me into the solicitor’s office and said ‘there you go, that’s all yours now.’ I didn’t know where to start or what to do. My head was spinning. But it was the most enormous vote of confidence. And I knew he was there if I needed help. But a lot of it is ‘try and swim, try and swim, don’t sink’.

Pat always encouraged us to trust our instincts. He would say ‘put your opinion at the front of the letter and don’t be scared to have an opinion. You might have an opinion that other people don’t agree with, but that’s your well thought-out opinion and you have to state it’. Of course, it had to be predicated on having a brain and doing the work, but that’s not enough. We were always encouraged to do our own appearance work to the extent that it was appropriate as a solicitor. Get up, do it, have a go.

I remember early on in my time at Dunhill Madden Butler we had a client who was being interviewed by the police in a high profile matter, and the interview had to be conducted on a day that Pat was leaving the country. He left me in charge of getting the client through the interview. I was incredibly nervous, but ringing in my ears was the question ‘what would Pat do now?’ Luckily we’d had enough time together for me to identify those things, but that question was always the guiding light if I ever felt out of my depth. I think I did a good job, although he always managed to carry himself with a lot more ease and humour than I did in those days.

‘Tell him I sent you’

I think this was unusual at the time, but Pat made absolutely no distinction amongst his solicitors based on gender; it was irrelevant to him. If anything he was very supportive when I went off and had children, and accommodated part-time work when I was ready to come back. He had a complete commitment to having the job done well by people who are good at it, rather than any other consideration.

That wasn’t true of everyone. The first couple of times a [male] barrister refused to speak to us as [female] instructing solicitors we’d go back with our eyes all shiny and tears about to pop and say ‘Pat he asked for you, he won’t talk to me.’ And Pat would say ‘no, off you go. Tell him I sent you.’ With the knowledge that Pat trusted us to handle the situation came a growing belief that we actually could. But he did also step in behind the scenes afterwards and say ‘we won’t be briefing people again who don’t behave appropriately to my solicitors.’

‘Play where the ball isn’t’

Our work involved looking at a lot of medical issues, which I had become interested in. Pat would notice any interest that each of us had and would push us in that direction, so he encouraged me to study bio-ethics at the University of Melbourne. He also encouraged us to work hard and play hard, that was a huge emphasis. He had a lot of phrases and one I remember was ‘play where the ball isn’t’. He encouraged us to look other than where everyone else was looking, for the answer to it, or from another angle on the problem, or another direction for the case to take.

Our working relationship was like a constant dialogue about things and it had a huge impact on my decision to go to the bar. We’d always been encouraged to do our own advocacy, and advocacy was always presented as being a very important part of your skill set as a solicitor. We were encouraged to go up to chambers, to express our opinions to barristers and to be part of the conversation, so that confidence was there to think well you know, we can do this. When I decided to go to the bar, Pat was enormously supportive, more than I could have imagined given that I was leaving the firm. He took me out to lunch and said ‘right let’s talk about which clerks you might want to apply to.’ We talked about what I wanted or needed and he’d done some research to find out who would be the best match for me. He organised the firm to buy me my barristerial robes, and he bought me my barristerial jacket. Those gestures showed an enormous loyalty that extended well beyond the boundaries of work.

When I got to the bar a lot of the lessons I learnt from Pat helped me have an opinion and be involved. That meant when I was even a very junior barrister, I always thought I had a seat at the table. So without being pushy about it, a lot of the QCs I would be junior to said they found it very hard to shake me off when they were negotiating with their opponents, because I would always be there listening to understand how it worked. I felt the confidence and entitlement to do that because I’d been given that confidence every day working as a solicitor in Pat’s team.

When I went to the bar I managed not working with Pat very badly I think. There was a long time when we didn’t have daily contact, and while I was still conscious of what he was doing, the contact was a lot less regular than it should have been. But it’s like a friend who you don’t see for a long time, then when you do you just pick up the conversation where it left off.

As a barrister you’re on your own. So you’ve got to have that appetite for exploring the unknown, together with a certain belief that you’ve built the skills to cope with it. When I was appointed Queen’s Counsel in November 2015, Pat’s was one of the first calls I received, and one of the first people whose call I returned. I really see that no matter where my career in the law goes, the genesis of it was with my early days with Pat. It permeates a lot of how I think about the law, and how I conduct myself.

There are an enormous number of people who have worked for and been mentored by Pat, and gone to the bar. He has affected so many people’s careers because he takes an individual interest in each person.

My advice to others wanting a mentor is this—if you’re interested in mentoring you need to seek it out and approach the person you want as a mentor. It doesn’t have to be a formal arrangement, but put yourself in a position to soak up everything you can. You have to be very open to whatever they’ve got to share, whether it’s what you expected or not, or whether you agree with it or not. Just be there to listen and learn and take from it the things that apply to you.

Reflections

For mentors

 How can you call out gender bias or discrimination when you see it occurring in your mentee’s experience?

 How do you choose the mentoring style appropriate for the situation? In which circumstances would you choose to urge your mentee to take a particular career step versus allowing them to discover their own path?

 Where can you find opportunities to throw your mentee in at the deep end but provide safeguards to ensure she swims, not sinks?

 How can you encourage your mentee to trust her instincts?

For mentees

 Where can you find opportunities to ‘play where the ball isn’t’ in your career?

 Which situations make you feel confident? How can you apply this confidence across other situations where you lack confidence?

 What are your self-confidence-busters? Which ones would you like to work on with your mentor?

 In the absence of a formal mentor program who can you seek out and approach as a possible mentor?

 What courageous steps or decisions have you made? In what ways have these decisions built up your courage?