By Demi Swain
Justice Whitby was appointed a judge of the Supreme Court of Western Australia on 22 May 2023. She speaks to Demi Swain about what has changed in law since she started out, and how it is possible to have it all.
Where did you start out as a new lawyer, and what was the biggest highlight or challenge for you as a new lawyer?
I started working as a lawyer at Freehill Hollingdale & Page in January 1996. The biggest highlight of my first few years was working on a case that involved the theft of a diamond and sapphire necklace called the ‘Blue princess’. It involved a wealthy Egyptian impersonating the Emir of Qatar in order to purchase the necklace with cheques that were later dishonoured. I was very fortunate to be working with The Honourable Ken Martin KC. It was very challenging, but interesting and rewarding work.
Also at that time, there was no email or internet – the facsimile and photocopier were our technology. I also remember the challenge of running (literally) to the Supreme Court registry in order to file court documents by 4.00pm.
What do you know now that you wish you had known when you began your career as a lawyer?
That most of us, lawyers and judicial officers, still feel like we have a lot to learn. Although as a junior lawyer I thought the senior lawyers I worked with and the judicial officers I appeared before knew it all, that was not reality. No one knows it all. We are all still learning and won’t stop until the day we die. It’s okay to say you don’t know and get some help to find out the answer.
What was a major issue facing the profession when you were a new lawyer, and did we fix it?
I think it’s a matter of perspective as to the major issue facing the profession in the mid 1990s and also as to whether we have fixed it. From my perspective, the major issue was working as a lawyer and having a family. I wanted to have a legal career and children. It has worked for me – that was largely because I had incredible support from the partner I worked with at Freehills, Steven Penglis SC. Steven supported me working part time for many years and did not give me different work from any of the full-time lawyers. I also had the support of my family at home. It was challenging but I have no regrets – I have four beautiful children and a job I love.
What advice do you have for managing the pressures of working as a lawyer?
Keep up your relationships outside of the law – your family and friends give you perspective and a reprieve from the pressures of a career in the law. It is very easy to get caught up in the bubble of the legal world and small mistakes can seem much bigger than they are. Try not to let perfection prevent you from being efficient. Nothing will ever be perfect – do the very best you can and that will be enough.
How would you compare your roles of Magistrate, Principal Registrar and Master of the Supreme Court to Judge of the District Court and Supreme Court of Western Australia? And how would you would explain (at a high level) the difference of these various roles to a young lawyer?
I have been fortunate to hold all of these positions in the courts over the last 15 years.
The principal registrar of the Supreme Court has the responsibility of managing the court registry. The PR also performs mediations, issues probate, taxes bills of costs, conduct expert conclaves and corporation examinations.
A Stirling Gardens Magistrate deals with serious criminal matters in the Supreme Court jurisdiction before the matter is committed for trial or sentencing.
The Master of the Supreme Court conducts a large part of the chambers work of the Supreme Court, this includes probate and corporations matters.
A Judge of the District Court hears both civil and criminal matters within the District Court’s jurisdiction. A significant part of the work of a Judge at the District Court is to preside over criminal jury trials and sentencing matters.
A Judge at the Supreme Court hears both civil and criminal matters within the Supreme Court jurisdiction. There are much fewer criminal trials in the Supreme Court than the District Court. The majority of the Judges of Supreme Court sit in the civil jurisdiction more than they do in the criminal jurisdiction. This is the major difference between the work of a Supreme Court and District Court Judge.
What advice would you give to new lawyers appearing before you?
Comply with the programming orders made by the court. If that becomes impossible then address it before the date for compliance – confer with the other party to seek an extension (and file consent orders) or apply to have the matter relisted. If you don’t know the answer to a question, say so. This is much better than not answering the question or guessing. Say you will take it on notice and come back to it.
What initiatives have you been a part of that were directed at new lawyers?
At Freehills, I was part of a group formed to assist and mentor women in the law. It seemed to be a successful group because the number of women who stayed on as lawyers after having children increased significantly over the years. My view is that leading by example is the best ‘initiative’ directed at new lawyers. You cannot be what you cannot see.
What are the key tips you would give to new lawyers who are just starting out?
It’s a long race. You need to rest and be kind to yourself and others if you are going to stay in the race. There will be times when your career is less important that other aspects of your life – that doesn’t mean it is not going anywhere. Enjoy those times – they can reinvigorate you when you return. Be the person that you would like to work for, be on the other side of, or who you would want as your lawyer. Your reputation is everything.
