The Hon David Andrew Ipp AO QC (1938 – 2020)
The Hon David Andrew Ipp AO QC
NSW Court of Appeal, mid 2000s
David Andrew Ipp was born in 1938 into a Jewish family in Johannesburg. His father was a shopkeeper, and he was raised in wartime austerity. He really only wanted to play cricket for South Africa, but a bout of polio as a ten year old ended that dream. This bout of illness, however, had a profound affect on his life as confinement at home to convalesce meant he had little else to do but read books. Ipp became a voracious reader, something that stayed with him for life, and upon reading books of great trials of the 19th century, he became interested in a career in the law at a young age.
As legal practitioners had to be proficient in both official languages, he chose the University of Stellenbosch, an Afrikaans university in a picturesque historical town near Cape Town, for his studies. Five happy years followed and it was there that he met his future wife. After qualifying he went to work at one of the leading firms in Johannesburg as a solicitor but was drawn back to Cape Town where he was called to the Bar in 1973 and established a national practice in maritime insurance and commercial law.
The political regime was always a serious concern and so in 1981 the family moved with their three school age children to Perth, where Ipp worked as an in-house counsel at the establishment firm of Parker and Parker.
In 1984 he was called to the independent Western Australian Bar and he took silk in 1985. He was briefed in some of the most important cases of the day. In 1989 Ipp was appointed to the Supreme Court of Western Australia immediately after the minimum qualification period.
Ipp sat in crime, common law, equity, appeals, and travelled around the State on circuit. He introduced case management, and was unusually and aggressively efficient. New procedures and practices were implemented, strict timetables imposed, and compliance policed. His Chief Justice, David Malcolm, described Ipp as 'a mover and shaker'; the local profession used other, more earthy, language.
Around 2000 there was agreement that a separate Court of Appeal was required in Western Australia, and the project was handed to Ipp (together with a suggestion that he would be appointed its President). Chief Justice James Spigelman encouraged Ipp to come to New South Wales as part of Ipp’s 'research'. Another move came about and in 2001 Ipp was appointed as a Justice of Appeal in New South Wales.
Cape Town Bar 1980
The NSW Court of Appeal has always been a very busy court and Ipp found the work constantly intellectually challenging. The environment suited him. He would later say that when he came to Sydney he quickly made some of the best friends of his life. Ipp was a dynamic force, usually the first to circulate a draft judgment, and commonly writing for the whole Court. He produced complex judgments with remarkable speed – his ambition was to produce a judgment within one week after a hearing. Ipp headed up a wing of the Court known as the 'Panzer Division' given the task of dealing swiftly with the more urgent cases.
In 2002 an unusual offer was made to Ipp to chair a committee appointed by the federal government to report on Australian tort law reform. The offer was unusual because, as Ipp explained privately, he had been trained in Roman Dutch law, not the common law, and had never practised tort law. The Committee produced a report commonly referred to as the 'Ipp Report', which despite his personal reservations, contains a superb exposition of Australian tort law.
The legislative response disappointed him. The first recommendation of the Committee – described as the 'overarching recommendation' – was that statutory changes should not be made unless introduced uniformly throughout Australia, thus preserving the benefits of the single common law. Instead, changes were made piecemeal, differing from State to State, effectively undermining the report. And, as Ipp himself found as a judge, the legislative changes were sometimes expressed in terms which were difficult to apply in practice.
On appointment to WA Supreme Court, 1989
On many occasions Ipp would say, and he would wish it to be repeated now – David Ipp did not draft the Civil Liability Act.
Then, in 2009, he was asked to become the Commissioner at the Independent Commission Against Corruption. He was an inspired choice, free of political affiliations and not associated with any powerful interest groups in New South Wales.
ICAC had been moribund. It was common knowledge that potential lines of inquiry involving powerful politicians had been left to lie dormant because they were thought to be too hot, especially as the same politicians controlled ICAC’s budget. That, of course, would not deter David Ipp: that would only encourage him.
On appointment to NSW Court of Appeal, 2002
Ipp’s tenure at ICAC was explosive. His desire to expose abuse and corruption in government had been triggered, long before, in South Africa. Several great and famous investigations were launched which carved their way through politics and corrupt politicians, and upset many lucrative financial deals.
In 2013 Ipp resigned from ICAC, principally due to the recurrence of serious back pain. In a busy semi-retirement he conducted several inquiries, including in relation to the attempted murder of Tony Mokbel. He remained tireless in his anti-corruption work, founding the Centre for Public Integrity, and relentlessly pressuring politicians for a national integrity commission. He found the inaction on that issue disturbing.
There was a fallout from Ipp’s success at ICAC. In 2014 some businessmen unsuccessfully accused him of bias. Their claim was booted out of Court. In 2015 Eddie Obeid and his sons sued Ipp alleging he was guilty of malfeasance in his public office as the ICAC Commissioner. Ipp thought the allegations were a joke. The matter went to trial, but was dismissed out of hand with an indemnity costs order – the trial judge describing the allegations as 'inappropriate', 'unjustifiable', 'unmaintainable and irresponsibly made'.
Ipp’s profound impact upon Australian law is all the more remarkable for the fact that he was trained in Dutch Roman law – a distinctly different discipline. Ipp claimed that when he arrived in Perth and heard his legal colleagues referring to 'equity' he simply assumed they were talking about some insurance company. His judgments cover every conceivable legal field. A full catalogue would take pages, but his judgments on criminal law and sentencing1, insurance2, jurisdiction3, and commercial law4, are worthy of particular note. Add to this that Ipp produced judgments touching upon almost every aspect of the law of torts – so many excellent judgments that it is impossible here to list them. And it is notable that he overcame his early scepticism to produce masterful judgments in the field of equity. His decision in Permanent Building Society v Wheeler (1994) 11 WAR 187 was subsequently picked up and applied in the House of Lords5.
Ipp’s contribution did not solely reside in the caselaw, he was a regular contributor to academic journals on diverse topics – see, for example, his article 'Lawyers’ duties to the Court' published in the Law Quarterly Review in 1998 and his provocative 'Must a prosecutor believe the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?' published in the Australian Law Journal in 2005.
Earlier we mentioned something about Ipp on the Bench. There is no point being delicate because Ipp recognised he was demanding and sometimes difficult. Chief Justice Spigelman compared Ipp in Court with a predator on the high veldt, and that is apt. He could be demanding of counsel, especially where counsel was poorly prepared or the argument was loose. Ipp prepared for every appeal, and he expected the same of others, demanding intellectual rigour, nothing less. He engaged in debate with counsel to an unusually high degree – it is true that the President of the Court of Appeal had to intercede on at least one occasion to allow counsel to finish announcing an appearance before Ipp completed his first question.
On appointment to WA Supreme Court, 1989
All of that said, he was never personally rude nor demeaning, and he could be kind when he saw a barrister struggling with a difficult brief or difficult client.
And if it is of any comfort to the profession, it can now be revealed that Ipp could be just as hard and just as demanding on his judicial colleagues.
It also needs to be known that Ipp was a totally different person the instant he left the Bench. His company was a joy. He was always ready to laugh, and when he laughed it was notable – he had a loud, braying, infectious laugh. He constantly looked for a brighter side to matters, and usually found it. He was wonderful company, caring, inquisitive, interested, interesting, and never dull. He was a genuine intellectual and a lifelong scholar. He had a deep knowledge of history, science and government.
Farewell at NSW Court of Appeal, Nov 2009 with the Hon James Spigelman AC, QC
Although he would claim that he was proud to be an Australian, he was unable to shrug off his past. He continued to barrack for South African cricket and rugby teams when they played Australia (a long standing $5 bet per match left Justice Murray Tobias seriously out-of-pocket). The most obvious holdover was his accent – which (contrary to his belief) was very strong. His accent could create confusion in the Courtroom: On one occasion while receiving submissions on the calculus necessary to determine whether a duty of care had been breached, Ipp said loudly to counsel that his submission was 'Shirt, pure Shirt' – leading to some discomfort until it was realised Ipp was referring to the name of a case.
In the end, everything and anything in Ipp’s professional life was secondary to his love and affection for Erina. They were a team. They were happily married for 56 years. Theirs was a long marriage punctuated by challenges and change which was successful because they were so very close. He was a warm, loving and nurturing husband to Erina, father to Graeme, Tessa and Stephen, and grandfather of four.
Typically, Ipp wanted no fanfare once he was gone. He wanted no funeral or other memorial and was cremated in a private service. We imagine he was primarily concerned that time spent at such an occasion could be better used writing outstanding judgments.
The Hon Keith Mason AC QC, Geoffrey Watson SC, Stephen Ipp
1 Jarvis v The Queen (1993) 20 WAR 201; R v Liddington (1997) 18 WAR 394
2 Speno Rail Maintenance Australia Pty Ltd v Hammersley Iron Pty Ltd (2000) 23 WAR 291
3 Orellana-Fuentes v Standard Knitting Mill Pty Limited (2003) 57 NSWLR 282; Air Link Pty Ltd v Paterson (2003) 58 NSWLR 388
4 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 252 ALR 659
5 See also his decision on equitable compensation in the context of corporate misfeasance in Biala Pty Ltd v Mallina Holdings Ltd (1994) 13 WAR 11