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MORE THAN JUST PRECEDENT: PERSPECTIVES ON JUDGMENT WRITING
THE HONOURABLE JUSTICE KATRINA BANKS-SMITH*
1 INTRODUCTION
Notre Dame University is privileged to hold the Coram books of the late Honourable David
Malcolm AC QC. Those books are a set of beautifully handwritten notes of trials and hearings
before his Honour. It would be very rare these days for a judge to keep such a detailed record.
Those notebooks are therefore an important piece of legal history, not just as a record of the
particular trials but as a record of how judges work. I am very honoured to have been asked to
deliver this fifth Memorial Lecture in tribute to David Malcolm's legacy, and inspired by those
beautiful notebooks, I have chosen to talk about the written word and judgments as records.
But first I would like to say something about David Malcolm. I did not have the honour of
knowing him. The only time I appeared before him was when I was admitted to the roll of
practitioners in 1990. I regret that I am unable to speak first-hand of his attributes and qualities.
They are, however, well recognised.
His professional record from Rhodes Scholar to Queens Counsel to Chief Justice of Western
Australia was exemplary. As a barrister he appeared on many occasions before the High Court
and the Privy Council. His judicial service included well-known highlights such as the quashing
of John Button's murder conviction.1
His commitment to the community was broad, serving on many organisations. His commitment
to education was enduring, as witnessed in the later years of his career by his service to this
University as a Professor and Adjunct Professor of Law.
His legacy is recognised in particular by the naming of the David Malcolm Justice Centre in his
honour, the building that now houses the Supreme Court of Western Australia and other offices
vital to the administration of justice, including the State Solicitor's Office.
David Malcolm was also devoted to his wife Kaaren, and daughter Manisha, and they continue
to be very much in the thoughts of those who recall his remarkable contribution. I acknowledge
* Judge of the Federal Court of Australia. (Speech, The Honourable David Malcolm Annual Memorial Lecture,
The University Notre Dame Australia, School of Law, Fremantle, 9 October 2019).
1 Button v The Queen [2002] WASCA 35.](ViewImageLocal?handle=hein.journals/undauslr21&div=1&collection=&method=preview&ext=.png&size=3)
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