Theodore Simos

Address at the Memorial Service for Theodore Simos
St. Francis of Assisi Church Paddington on 26 June 2009

The practice of law is an honourable profession. And there are many who make their mark in different ways. The quiet and dignified man whose memory we now honour, ranks amongst the most loved and respected barristers and judges of our time. For all his extraordinary intellect, that which marks him out may be summed up in the following words: he was a true gentleman.

The attendance today is testimony to the high regard which so many had for this so very special colleague and friend.

It was an honour to be Theodore Simos’s pupil at the bar and it is a signal honour to speak of his professional achievements. Also to comment on the type of son, husband, father and grandfather he was.

Theodore was born at the Paragon cafe at Katoomba in 1934. He attended Ms Long's School (boys up to eight, girls up to 12) in a Katoomba Church hall doing so alongside Justice Peter Young, now of the Court of Appeal. Even now one can imagine these two 8-year-olds having a quiet chat about the then recent decision in Donoghue and Stevenson.

Theo's mother Mary always referred to him as 'My Theodore'. One can imagine the pride which she and Theo's father Zacharias would have had in seeing Theo's progression into Sydney University at the age of 15. But that was just the beginning of their son’s numerous academic achievements. Few in this room could match the number of prizes he received during his period at his first University, only to be followed in 1958 by his graduating Bachelor of Letters from Oxford University, and then his graduation, Master of Laws from Harvard University.

Admitted to the Bar in 1956 he read with Sir Anthony Mason later the Chief Justice of the High Court of Australia. Another close mentor was Sir Maurice Byers.

He joined the prestigious 11th floor Wentworth/Selborne Chambers where he had many close colleagues and friends. This was to be effectively his second home spanning roughly 37 years.

He was appointed Queen's Council in 1974.

His special area of practice was of course in Equity. However he also excelled throughout his career at the bar in Commercial law, Intellectual property and Administrative law, appearing in all courts and arguing many appeals before the High Court and the Privy Council. Indeed he appeared in one of Australia’s last cases before the Privy Council prior to the Australia Act coming into operation: Westpac Banking Corporation and Commonwealth Steel Co Ltd heard in late January 1986.

Time does not permit an exhaustive chronicle of the many high-profile cases in which he appeared. To name but a few, he appeared for the respondents in San Sebastian Pty Ltd v Minister Administering Environmental Planning Act (1986) 162 CLR 340; for the respondent in Grant v Federal Commissioner of Taxation (1976) 135 CLR 632; for the appellant in Harvey v Law Society of New South Wales (1975) 7 ALR 227 in the Hight Court and of course he represented the British Government in the famous Spycatcher Case – Her Majesty’s Attorney-General v Heinemann Publishers. He assisted the Senate Committee in its examination of High Court Justice Lionel Murphy.

As all those who read with Theo will testify, he took his obligations as a pupil master extremely seriously. Even after a strenuous day in court followed by a string of conferences he would set aside time to speak to his readers. And this was not some type of superficial appraisal of the work the junior was then doing: the notion ‘superficial appraisal ’ was certainly alien to Theo. He needed to know with precision exactly what areas the junior was engaged in and exactly what propositions the junior proposed putting forward to a court or to the solicitor seeking advice. His reader would not infrequently leave his chambers astonished at how many other faces of the problem Theo had identified. Chastened by the realisation that for all the work one believed one had carried out, in truth no more than the surface of the real problem had been examined.

But this expresses the essence of the man. As the Hon Keith Mason, a sometime reader with Theo and later President of the New South Wales Court of Appeal said at a farewell ceremony held in November 2001:

"As an advocate Theo demonstrated learning which was wide and deep. His work as a barrister was marked by intense preparation, thoroughness in exposition and a willingness (in the interest of his clients) to go the third mile in exploring settlement. An impish sense of humour contributed to a gentle and charming advocacy style"

Theo is also remembered by many as a wonderful lecturer in the Law Faculty of Sydney University. Practising lawyers would often comment on their memories of his lectures – his ability to pass on analytical skills and leave no stone unturned. I know!!!

He took his responsibilities extremely seriously. Never was there a more careful member of the bar. Never was there a more courteous member of the bar. Never was there a member of the bar less likely to have exhibited negligence in his work nor to be hurt to the core in litigation suggesting such conduct.

Paul Daley who was Theo’s clerk for virtually the whole of his time spent at the bar was able to point to at least one perhaps rather unusual trait which Theo exhibited. Apparently he never sent briefs back after conclusion of the case. Perhaps this was because he always imagined that some line of authority examined in an earlier brief may prove useful to be mobilised on a future occasion.

Theo was finally persuaded to join the Equity Division in January 1995 serving under Chief Justices Gleeson and Spigelman. He sat continuously in that division for six years with an occasional foray as an acting judge of appeal.

On the Court he approached his work exhibiting the very same dignity which was the lodestar of his stellar career. He listened very carefully to the respective submissions and produced judgments which were models of clarity, dealing with the essential points in issue. There was no chance that any litigant before him would leave the court fairly claiming that he or she had not been heard.

Returning to the more private aspects of the man it is clear that he was certainly not a carouser. He took very great pride in the achievements of his children Jack, Paul and Elizabeth and their families including his eight grandchildren.

He was passionate about travel. He offered advice to many colleagues for their trips.

He was a veritable fount of knowledge with regard to the United States, especially Boston, which he dearly loved.

He was fascinated by New York and particularly the service as provided by the New Yorkers. As mentioned, the multiple photos of food showed that he was the true son of restaurateurs!

Helen was always uppermost in his thoughts. He considered their marriage the greatest love affair of our times. He would offer a toast to the most beautiful woman in the world………. and then Helen.

Helen confided in me that Theo always commented that she was 95% right – but with a gleam in his eye he would say, “Ah, but that last 5%”.

When he was offered a position on the Bench, one of his first thoughts as he considered the workload ahead was “Helen, what are we going to do with you if I go on the Bench”.

Theo was very much a family man and as we all know, a very private person. He never said a bad word about anyone – he would rather not comment at all.

As his terrible illness progressed, he struggled to concentrate for longer periods. Helen would read to him - Law Journals and the like. After a while, even with his great intellect, he could no longer focus and would ask her to stop. He remained in touch with the world through the radio.

During his illness, Theo appreciated every single message and letter he received. However he did not want to be seen in decline. He wanted to be remembered by his friends and colleagues as the person they always knew.

His family who stood behind him and supported him for so many years may now rest in the knowledge that he is finally at peace.

I earlier mentioned that Theo's mother Mary always referred to him as 'my Theodore'. In truth he was also ‘my Theodore’ to every single friend who has honoured his memory by being present today.

The likes of Theodore Simos will not often pass through the corridors of Counsel’s Chambers, but many will profit by the example of excellence which he set.

The law has lost one of its most illustrious sons.