Peter O’Callaghan interview 22 July 2009
My essential brief was to try and establish that there was liability in the auditors,
that is liability for negligence in the auditors, and Alan Goldberg was for the accountants,
I think it was KPMG, and at a late stage in the proceedings for whatever reason and Iíve
forgotten precisely now, the issue of that was removed from the terms of reference.
So the Commission was not called upon to judge whether or not there was a case established
for negligence on the part of the accountants. But there were lots of other things in that
Commission which would take a long time to explain.
Did that lead to some peopleís arguments, or perceptions if you like, that people got
off too lightly?
No, well not in the context of liability for it, because I went out of the case after that,
but there was a claim in negligence which was successful. It was a Commission which was
notable for the fact that Sue Crennan, I think, my very good friend Sue Crennan was counsel
assisting, and itís one of the few Commissions in which, and she wonít mind me mentioning
this, (that) their recommendations for prosecution were rejected.
You worked a great deal with Royal Commissions and inquiries as you mentioned. Did you find
that to be a particularly favourite area of work; did you like that as compared to say
arbitration and mediation which you have also done a great deal of?
If I had to choose between Royal Commissions, arbitration and mediation, I think Iíd pick
arbitration first, mediation certainly last. I am not an espouser of mediation.
Why is that?
Well I think that the problem with mediation is that it is not possible generally, to
produce the atmosphere which exists at the door of the Court, and until that atmosphere
is produced, there is not complete control of the case by the representatives. Put
another way, I would always say a case in the hands of competent counsel, A against B,
will be better resolved rather than by alternative dispute resolution. That might be
something of a heretical view, but thatís been my experience of mediations, and I think
that mediations often, certainly in the case of where an insurer for instance is on one
side and the plaintiff on the other, the mediator is made the conduit of the message
reinforced by the insurer, Ďweíre not paying any moreí. But however thatís just very
random, very incomplete criticisms of the mediation process. But if we, and I add this
and I think this is a valid point, if the appointment of judges had kept pace pro-rata
and mutatis mutandis with the population, we wouldnít have the difficulties we have got
now. I think one of the great problems which has been produced is the failure to
appoint sufficient judges.
So Iím interested in what youíre saying about the fact that; is it the formal atmosphere
of the Court that you feel is more conducive somehow to, if you like the passage and the
execution of justice?
No, itís the tension which is produced in the party, initially the plaintiff and then
the defendant, that they are going to have to go into the box and be sworn and give
evidence. Itís then that they see, and indeed their advisers see, with a greater clarity
than in the shuffling beforehand, of the pros and cons of the case. I might say that back
in the old days, very often the insurers, be the state or club or whatever, they were late
in getting instructions to the defendantís counsel, because they might have lost the file
or whatever, and consequently a plaintiff was often, when I say forced, his counsel said
Ďokay, well weíre going oní. And then the plaintiff has given his evidence, and then they
find the file. But itís a different situation then because heís had his day in court, heís
seen what itís like, and heís quite prepared to hang in, or she is quite prepared to hang
An edited version of an interview conducted for the Victorian Bar oral history
project by Juliette Brodsky, filmed by Stewart Carter at Owen Dixon Chambers
and edited by David Broder.