Face to Face with The Honourable Justice Walter Sofronoff President of the Queensland Court of Appeal

It may surprise many that the Honourable Justice Walter Sofronoff’s first languages were Russian and Cantonese.

The president of the Queensland Court of Appeal was raised in a Russian-speaking household and his early interactions with his peers were in Hong Kong where he grew up.

Justice Sofronoff was actually born in Brisbane, Australia. But in 1955, his father accepted a job offer to work as a trainer at the Hong Kong Jockey Club, where his family soon joined him.

“I grew up in a Russian speaking household. Because horse trainers were given housing near the stables complex, all of my interactions with other children were with Chinese children. Consequently, before I started school, I could only speak Russian and Cantonese,” he told Hong Kong Lawyer.

He first began to learn English when he started attending Quarry Bay Junior School at the age of five. This eclectic mixture of languages has continued, in one form or another, to be present in his life.

Justice Sofronoff lived in Hong Kong until he was 13 years old. Then in 1966, he was sent to Brisbane to study during his second year of secondary school. But even then, Justice Sofronoff spent his annual long holidays in Hong Kong, which he felt was his “real home” for a very long time.

“I graduated from high school in Brisbane and then attended the University of Queensland, where I earned the degree of Bachelor of Laws. During my period in Brisbane, until I married, I returned to Hong Kong at Christmas for six or seven weeks during the Australian summer vacation. My parents and sister had continued to live there,” he recalls.

Justice Sofronoff still maintains his Cantonese skills despite being Down Under.

“At the present time, there is little opportunity to speak either Russian or Cantonese, but I have kept up my familiarity with Cantonese by watching Hong Kong movies (my favourites are Hard Boiled and Infernal Affairs) and by attending Wing Chun classes (at which half the pupils and all the instructors are Cantonese speakers),” he says.

An 'Ideal' Start

Justice Sofronoff’s career path was one he embarked on almost by accident. He readily admits to having no idea what direction he should take after leaving high school.

“I suppose like any child of a refugee, I felt a duty to vindicate the hardships that my parents had faced, partly for my benefit, by gaining an education and doing as well as I could. I also knew that I was unsuited to any field in which numbers matter, such as medicine or accountancy,” he says.

So, when one of his school friends announced they were intending to study law, he decided to follow suit. But even then, it didn’t really settle in that it might be his destiny.

“It took me until my third year at university to get a sense of how legal reasoning worked. I think that I was a very callow young man. I recall that in my fourth year I discovered a stock of old books in the law library that were biographies and memoirs of famous English barristers of the late 19th and early 20th centuries,” he says.

“These were totally fascinating, and revealed to me, for the first time, an understandable ideal.”

They made a lasting impression on Justice Sofronoff over the rest of his career.

“The remarkable thing is that, although there is no call for the sound of trumpets to announce the pursuit of ideals on a daily basis as we work away, I have never had any reason to doubt that the substance of what those old books put forward, about the importance of intellectual honesty, of moral courage and of independence of mind, was entirely true and remains true,” he says.

Though the form of legal practice has changed a lot in the last 40 years, Justice Sofronoff is adamant that these principles remain the same and must remain the same in the future.

For this reason, he considers all who live in countries that have adopted the English system of legal practice to be very fortunate.

“Unlike the United States, for example, both Australia and Hong Kong have a legal profession which, at its centre, insists upon absolute independence of mind on the part of its practitioners. That is to say, there is an appreciation that what a lawyer sells to a client is not absolute loyalty but a limited loyalty,” he says.

He feels the limit is set by the lawyer’s primary duty to the proper administration of justice.

“Of course, I did not know back then that the stories of these fabled English barristers were examples of the practical application of the rule of law. But they made for stirring stories that demonstrated that the profession pursued an ideal. What kind of young person can possibly resist the call of an ideal? This was for me,” says Justice Sofronoff.

“I could not see myself working in an office and having to deal with conveyances and contracts. So it was the bar for me, and nothing else, from that point on.”

Setting the Bar

Based on this foundation of ideals, Justice Sofronoff started his career as a barrister. But that’s not to say that from there it was a simple journey to the top, for he had to learn to deal with his debilitating anxiety about his capability to perform his duties.

In 1982, Justice Sofronoff was briefed to appear in the Supreme Court for a plaintiff in a civil fraud case. But he found himself paralysed by fear and unable to do the preparation work.

He eventually decided to create a comprehensive check list for the experience, which he recalls started with “read the brief” and ended with “take a spare pen”. Justice Sofronoff then worked through the list step-by-step.

A lot of self-reflection followed. The realisation that he just had to do his personal best and there was no actual basis for those fears eventually helped him in handling that case and the ones that came after.

“I repeated this whole thinking process in the cases that followed, including my post-case review of the baselessness of being scared about doing the work that I had chosen as my professional calling. Over time, I became, literally, fearless so that going to court became, generally, a joy and a pleasure. Of course, there were some miserable cases but that is a different story,” he says.

“I now think that I could have saved myself a lot of pain and effort if I had just consulted a psychologist, because the process I undertook is simply cognitive behavioural therapy!”

Justice Sofronoff began his legal career as a criminal barrister, became largely a commercial barrister and then, as Solicitor General of Queensland, became a constitutional barrister.

Along the way, he had stints in not only the Magistrates’ Court, District Court and Supreme and High Courts, but also the Family Court, the Local Government Court, the Industrial Court, and the Supreme Courts of every state of Australia as well as that of New Zealand.

“As a barrister, I never wanted to be confined by a legal specialty of any kind. It seemed to me that the most desirable form of practice, the form that would give me most satisfaction, would be one in which I might be briefed on any sort of case anywhere,” he says.

“If I was to have a specialty, it was advocacy and, so I believed then and believe still, whatever the forum and its special characteristics and whatever the area of law, the principles of advocacy remain the same.”

His time as Queensland's solicitor-general from 2005 to 2014 proved to be memorable and thought provoking.

Justice Sofronoff found his dealings with public servants rather than politicians to be inspiring. And the privilege of appearing as counsel to argue the most important public law cases were invariably interesting, involving legal problems of a kind that most practitioners never see.

“In 2007, I appeared in a case that concerned two men who had been convicted of the horrific murder of a young woman. When sentencing them, the judge had recommended that they should never be released. One of the accused was 16 at the time of the murder. The other one was 14 years old” says Justice Sofronoff.

Seventeen years after the trial, both of these murderers were about to become eligible to be considered for parole. The state legislature passed an act that limited the right to apply for parole in any case in which a judge had made a recommendation that a prisoner never be released. This amendment affected these two appellants, as it was in fact directed at them specifically.

“The case in the High Court concerned whether the amending legislation was unconstitutional. On that day there were twelve barristers at the bar table, as well as many solicitors sitting behind them. Seven judges of the High Court sat to hear the argument, that is, the whole High Court bench heard it. At some point that morning, my junior (who is now also a judge) turned to me and said, “Look at this. All these people are here to decide whether two murderers can apply for parole. That”, he says, “is why ours is a stable constitutional democracy”,” recalls Justice Sofronoff.

He found this to be a profound observation.

“The two appellants were not, in the mind of many people, worth much trouble or expense. Yet our common legal history has brought us all, and has brought all of you in Hong Kong, to believe that in every single case, and even in the case of the most undeserving people, justice must be done according to law, even if that means that many highly skilled barristers and judges have to meet to ensure that outcome.”

Through incidences such as this, Justice Sofronoff found that there is a shared expectation and a common understanding about values such as these in the community – even among people who have had no formal education or instruction about such ideas.

“The precise words might be lacking to explain their thoughts, but the concepts themselves are present in the minds of most people and their significance is understood perfectly. I guess that an enduring joy that I have, as a result of working as Solicitor General, is an exposure to the application of these fundamental principles at a practical level that has made them authentic and true for me,” he says.

Balancing Act

By the time Justice Sofronoff was asked to accept an appointment as a judge, he had been in practice for 39 years.

“There was little that I had not done as a barrister and, for a few years, I had been trying to think of ways to re-invent my practice so as to re-invigorate myself. Tom Hughes, who was in his day Australia’s greatest barrister and who practised well into his 70’s, managed to maintain his energy and enthusiasm all the way,” he says.

But Justice Sofronoff was concerned that he did not share Hughes’ gifts.

“I was 63 years old when the offer came and, at that age, it was then or never. I had strong opinions about why I should not be a judge,” he says. And he was also reluctant to tear himself away from his pro bono work, from which he derived a lot of satisfaction.

“But upon being appointed, it became clear to me that the views that I held about judicial work were all wrong. I thought the work would be dull. Wrong. I thought that I would not enjoy writing judgements. Wrong. I thought the job would be a lonely one. Wrong,” he says.

But emerging from his comfort zone came with its own challenges.

“I would guess that many people who choose to become barristers do so, in part, because they cannot function comfortably as a member of a team or as part of an institution, such as a large law firm. People like this are solo performers. I am one of these people,” he says.

To Justice Sofronoff becoming a judge involves joining an institution with institutional requirements. And he admits to having found the requirement to conform to necessary bureaucratic regulation difficult at times.

“But on the other hand, that difficulty has brought with it a lot of interesting problems, some entirely in my own mind, I confess, as well as the need to confront personal limitations that have lain dormant. That has been an interesting challenge for me, and it continues to be one,” he says.

For him, an important obstacle a good judge must overcome is that of overriding any inherent biases and lack of impartiality. He claims the answers to the problems of dealing with unsuspected tendencies lie in two things:

“First, there is a craft of judging. That craft consists of the skills that generations of judges have developed and used in order to achieve in practice what is required by law. One’s colleagues on the bench demonstrate these skills and a new judge comes to recognise them when they are used,” he says.

And the second thing is a due humility.

“It takes very little time to realise that the assertiveness that is an advantage at the Bar can lead to painful consequences on the bench. So, a little humility can lead to a preparedness to listen more, and listening may result in the joy of having a misconception identified. It is an odd thing, but becoming aware for the first time that one’s belief about something is wrong can be a most thrilling and satisfying experience,” he says.

And this is where he finds that being a judge calls on very different qualities compared those required of a barrister.

“The assertiveness that made you so much money at the Bar can lead you astray very quickly as a judge,” he says.

Looking Forward and Back

Justice Sofronoff has been a member of The University of Queensland Law School Advisory Board since 2014, and briefly served as an adjunct professor of law at the university as well.

His experience of educating the next generation of lawyers and judges has left him pleasantly surprised.

“Every time that I go out to the University of Queensland Law School, I am astonished to see how sophisticated the students of today are. It is a real pleasure to encounter young people who are so engaged and interested in their work. I cannot remember being that way. My engagement and interests at university lay in things other than academic work,” he says.

When he gives a lecture or seminar, he aims to give students an idea of how actual legal practice can extend beyond the fundamental ABC’s that they have to learn at law school, how mastery of the ABC’s is vital, and how much satisfaction there can be in this peculiar job if one goes about it in a way that is right for them.

“Of course, the interesting thing is that so many of these students do not end up in the narrow traditional profession but emerge, in due course, somewhere else in the world doing something unexpected and extraordinary,” he says.

Justice Sofronoff also finds a delight in seeing the change in faces and names.

“When I started at law school and for a long time after I began to work as a barrister, the names of my colleagues were invariably something like Wilkinson or Campbell (with the occasional O’Reilly and Brunetti). Now, the names are Ng, Chan, Nguyen, Chekirova and Patel. And over half of these are women,” he says.

Seeing such people at the very start, when they are just beginning to learn, is a real pleasure for him.

And it also makes Justice Sofronoff reflect on his own humble beginnings.

“At a very early point in my career, I was concerned about whether, in order to succeed, a barrister needed a family history in the legal profession or some other kind of similar advantage. After some time worrying about this, it struck me that the best experiment to answer that problem was an experiment that had already been conducted. All I had to do was to look at the leaders of the Bar,” he says.

And Justice Sofronoff found that without a single exception, the leaders of the Bar in Brisbane in the late 1970’s and early 1980’s were barristers who had no family background in the law and most of them had come from very humble family backgrounds.

“Of course, family connections can help a lot at the beginning with recommendations and with money, but after a very short time, it becomes all up to you. A barrister’s performance is observed by experts who gossip – which is a very good thing. A barrister’s effort or lack of effort is obvious. A barrister’s win against odds, or a hard-fought loss, is apparent to those in the know,” says Justice Sofronoff.

“So, I have been grateful that my choice of career gave me a fair chance on an even playing field to achieve some professional success and to make a good living, and that I have had the opportunities that have come my way. I would change nothing and I regret nothing.”