Eulogy for the Hon BH McPherson CBE

Justice JA Dowsett 11 October 2013

Ann Street Presbyterian Church in Brisbane

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Let us now praise famous men, and our fathers that begat us.

The Lord hath wrought great glory by them through his great power from the beginning.

Such as did bear rule in their kingdoms, men renowned for their power, giving counsel by their understanding, and declaring prophecies:

Leaders of the people by their counsels, and by their knowledge of learning meet for the people, wise and eloquent are their instructions:

Such as found out musical tunes, and recited verses in writing:

Rich men furnished with ability, living peaceably in their habitations:

All these were honoured in their generations, and were the glory of their times.

Ecclesiasticus 44:1-7


Jackie has told me that Bruce insisted upon a lunch-time funeral.  He did not want the profession to be out of pocket on his account.

Bruce McPherson was born in South Africa on 23 September 1936 and died in Brisbane on 7 October 2013.  He was, in his time, a university lecturer, barrister and Judge, an author, an historian, a reformer and above all, a husband, a father, a mentor and a friend.  Jackie, Andrew, Fiona, Lachlan, Ewan and Malcolm, Bruce’s sister, Mary and his grandchildren, India and Ava have special claims upon him and his memory which the rest of us cannot share.  We do, however, cherish our own memories of him as colleague, mentor and friend.  We acknowledge the breadth and substance of his contribution to the public good, and the joy which we have derived simply from knowing him.

Bruce was the son of William McPherson who was born in Aberdeen, and Sybil Anderson who was born in South Africa.  He was one of two children.  Bruce went to school in South Africa and then studied at the University of Natal and at Cambridge.  His PhD, which was the basis for the first edition of the Law of Company Liquidation, was awarded by the University of Queensland.  He lectured at that University for many years.  I first encountered Bruce when he gave a short series of lectures on liquidation as part of the company law course in, I think, 1970.  Until those lectures the course had been an almost incomprehensible mish-mash of socialist, or perhaps Marxist political, economic and social theory which contributed nothing to our understanding of corporate personality, limited liability or directors’ duties.  Bruce’s rather more mainstream lectures evoked in many students an interest in the areas of company law and corporate insolvency which have been so important in Queensland and Australia over the last forty years.  Bruce’s performance as a lecturer was marked by the qualities which also marked his advocacy and his judicial work: patient humility, comprehensive knowledge of the law and unfailing courtesy.  

Bruce also derived a life-long benefit from that particular lecture series.  One of the other students was Jackie Milne who was to become very important indeed in Bruce’s life and achievements.

Those of us who started at the Bar in the early 1970s discovered that practice was changing rapidly, as was the work of the Supreme Court.  For the Bar, a diet of personal injuries cases, seasoned with some divorce work and a little crime, was being replaced by one of contract cases involving the sale and purchase of land, other cases involving real property and leases, and corporations matters, in particular, contested takeovers and corporate insolvency matters.  Many of the more senior barristers had little experience in those areas, and so a crop of gifted juniors had emerged, Bruce being one of the most prominent.  He and some of his colleagues demonstrated a new approach to advocacy.  There had, I think, previously been a view at the Bar that a barrister concentrated on the facts, leaving the law to the Judge.  Now, the new work demanded new skills, both as an advocate and as a lawyer. The times suited Bruce’s talents and disposition.  His advocacy was marked by disciplined research and preparation, focussing on both the facts and the law, coupled with economy and precision of language, both oral and written.  He contributed handsomely to the establishment in Queensland of a Bar which has been able to compete with the long-established, and previously disdainful commercial bars in Sydney and Melbourne.  The currently high professional standards of the Queensland Bar are undoubtedly part of Bruce’s legacy.

During his time at the Bar, and for much of his time on the Supreme Court, Bruce also committed substantial time and effort to the Law Reform Commission, on which he served for many years.  He was Chairman from 1982 to 1991.  Professor McDermott has given an account of Bruce’s contribution to the Commission’s achievements in an essay forming part of the Festschrift organized by Bruce’s collaborator and friend, Mr Aladin Rahemtula, until recently the Supreme Court Librarian.  I shall say more about that collaboration.  Professor McDermott points to the many major reforms initiated during Bruce’s time on the Law Reform Commission, including the Property Law Act and the Trusts Act, both of which were of primary importance in preparing Queensland’s law for the 21st century.

Professor McDermott’s essay discloses one other fact of which I was entirely unaware and which I find almost incredible.  On 26 November 1971, Bruce McPherson, then a member of the Law Reform Commission, but not yet Chairman, appeared on the ABC’s “This Day Tonight” current affairs programme to justify the work of the Commission in face of strident, and obviously unjustified criticism by a member of parliament who also appeared on the programme. 

At one level, the debate was about the politician’s assertion that the Commission had done little or nothing and was a waste of money.  Bruce was able to rebut that proposition simply by pointing to the number of substantial reports provided to the relevant Minister, about which nothing had been done by the government or the parliament.  However the politician had another agenda.  He wanted the commission to be reconstituted, with full-time members, instead of the serving part-time members.  A not overly-cynical reader of the available material, with knowledge of the personalities involved, might infer that somebody wanted a full-time job.  One might also infer that Bruce knew of this, and was determined to stop it.  In any event, concerning this proposal, Bruce said:

In order to get the right quality members you will have to rely on the practising Bar and the practising solicitors and I suggest you will not get full-time practitioners giving up their work if they are able men to join the Law Reform Commission as full-time members.

In 1971, barristers were much more reticent about speaking in the press than is now the case.  Bruce was, himself, very reticent about such matters.  That he did so suggests the strength of his commitment to the Commission, and the magnitude of the threat to it, which he perceived.  Thereafter, the Law Reform Commission very quickly developed a reputation as the only body of that kind in this country which had achieved much in terms of actual statutory reform.  His CBE was, in part, a recognition of his work on the Law Reform Commission.

I should say one other thing about Bruce as a barrister, particularly as a leader.  Many of the present Judges owe much of their success at the Bar to Bruce’s generosity and support in that capacity.  His example of persistent and thorough research and preparation and polished, economical presentation was, itself, of enormous value to a junior.  But far more than that, in a profession in which competition is almost a blood sport, Bruce went out of his way to assure instructing solicitors and clients of the extent of his juniors’ contributions to the cases.  On many occasions good ideas, which Bruce had alone conceived, were represented to the solicitor and client as having come from the junior. I do not think that Bruce was deliberately misleading anybody.  It was more that his mind followed random ideas through to their natural conclusions, so that casual conversation about the case helped him to develop his thinking.  His inherent generosity of spirit did the rest.

I should say, at this stage, that the Chief Justice of Queensland regrets his inability to attend.  He is travelling to Rockhampton.  I have been asked by Justices Kiefel and Keane to express their regrets at not being present today.  Their duties require that they be in Sydney.  Justice Byrne is overseas and also sends his regrets.

Bruce was appointed to the Supreme Court in 1982 and was Senior Puisine Judge from 1990 to 1991.  In 1991 he was appointed as an original member of the Court of Appeal and served there until his retirement in 2006.  He also served as an appellate Judge in both Fiji and the Solomon Islands.

He enjoyed the whole range of the Supreme Court’s work, criminal trials, complex commercial trials, chambers and appeals.  As Senior Puisine Judge he provided guidance and leadership by example, reflecting the qualities to which I have already referred.  Although he was an outstanding appellate Judge I do not believe that he was as happy in that role as he had been in the more varied world of the trial Judge.

Worthy of particular note is Bruce’s service as the Commercial Causes Judge.  The Commercial Causes List had previously been given considerable credibility by Peter Connolly’s efforts in that role.  Bruce built on that foundation.  The service offered, in truly commercial cases, particularly those concerning corporate insolvency or takeovers, was first-rate, providing speedy and well-run hearings, and timely and erudite judgments.

From 1998 to 2000 Bruce served as Chairman of the Judicial Conference of Australia.  That body has the role of, on behalf of the Australian judiciary, defending judicial independence.  Although Judges generally believe that the main threat to judicial independence is from politicians, it sometimes comes from other quarters.  Bruce was, on occasions, required to speak out, on behalf of the Judicial Conference, about remarks by politicians and others, including at least one Judge, which remarks were inconsistent with the concept of judicial independence or likely to undermine perceptions of such independence.  This was not always an easy or enjoyable task.

I must mention one other duty undertaken by Bruce in his judicial capacity.  It is his involvement with the Supreme Court Library.  The Library is a noble institution.  Bruce and the Librarian, Mr Rahemtula, together, guided it through a period of change which could have been fatal.  However, during that period, it actually emerged as perhaps the pre-eminent legal library in the country.  One example of their strategic thinking will suffice.

In the early 1990s, the state government decided that books were no longer of any use.  The library budget was cut, at least partly in the expectation that various state-funded law libraries would be combined.  No librarian and no author could accept such heresy.  Many tactics were employed to defeat this dastardly plan.  Perhaps the most audacious was Bruce’s insistence that the Judges refuse to waive their claimed copyrights in judgments, as against the Crown or the gaggle of publishers who wanted to provide electronic access to them.  Rather, the judgments were made available through the library, at a fee, and the money stayed with the library.  It was never a tactic which could work for ever, but it worked long enough to save the library.

I have referred to Bruce as an author.  He wrote three major works, as well as an enormous number of papers.  His Law of Company Liquidation, first published in 1968, has become a benchmark for assessing the quality of Australian legal publications.  Bruce’s name is so closely associated with the topic that a United Kingdom publisher has adopted it.  His history of the Supreme Court of Queensland is a subtle mixture of fact and comment.  It says more about the history of Queensland than one might discern from a casual reading.  “The Reception of English Law Abroad” is a scholarly work, the quality of which was recently affirmed to me by another very prominent Australian legal writer and senior retired Judge.

As you all know Bruce was a Scot.  From 2004 until his death he was patron of the Society of St Andrew in this State, having succeeded Sir Walter Campbell.  Of the qualities traditionally attributed to the Scots, Bruce had many:  respect for learning and belief in the importance of education; economy in the broadest sense, including economy of language; stoicism and loyalty, honesty and industry; all tempered by love of language, music and a wee dram, a mug of beer or a glass of wine.  And, above all, love and respect for family and friends.  Like good wine, Bruce reflected the characteristics of his root stock.

Bruce was, of course, a pillar of the Presbyterian Church.  A journalist once described him as a Calvinist.  This puzzled him, particularly as it seemed to be a criticism of his judicial work.  Whether or not Bruce described himself as a Calvinist, what was the journalist trying to say about him?  Was it an assertion that he was haunted by fears of Predestination and therefore unlikely to take seriously his oath of office?  Was it suggested that he was committed to the doctrine of Total Depravity and therefore prejudiced against all the poor wretches who came before him?  We have no answers to these questions.  Journalists are never asked to explain their gratuitous, and sometimes Delphic insults.  I suspect, however, that the journalist in question was simply a descendant of one of those other tribes which inhabit the British Isles, but wished that he was a Scot.

I should say something about Bruce’s service to this historic church.  He was the chairman of the trustees who hold title to the site.  Christopher Wren’s epitaph in St Paul’s Cathedral is, loosely translated “If you seek his memorial, look about you”.  If, as you leave this church today, you look to the adjoining development, you will see one of Bruce’s memorials.  Under his leadership the trustees were able successfully to redevelop land which had, until that time, been greatly under-utilized, and not in a very attractive way.

Delicate as the issue may be, I could not conscientiously deliver this eulogy without saying that we all know that Bruce would have adorned any higher judicial office to which he may have been appointed.  Our judicial system, with its emphasis on individuality and independence, may recognize the special talents of its most worthy judges, but it does not always translate that recognition into appointments to the highest offices for which such judges are obviously suited.  Whilst we feel that Bruce deserved more, we know that he treasured the great dignities which were conferred upon him, and that he was always content doing the work which he loved.  His judicial service has added greatly to the stature of all Judges in the Anglo/American tradition.

Finally, I want to say something about family matters.

Bruce and Jackie have five children.  He was proud of them all and watched carefully over them.  He has two grandchildren, India and Ava.  He is also survived by his sister, Mary.

I have previously mentioned young Jackie Milne.  In 1974 they married.  Bruce was not always careful to look after his own best interests.  Jackie was ever alert to his needs, both those of which he was aware, and those of which he was not.  Jackie, we are grateful for your enthusiasm, sceptical good humour and generosity of spirit but, above all, for the guidance and support which you provided for our very good friend.  We hope that by being here we make it easier for you and your family to bear the loss of such an exceptional man.

We praise him as one of our great men.  He has been honoured by our generation.  His achievements will benefit generations to come and will be honoured accordingly.