Supreme Court of Tasmania

Peter George Underwood AC (Article published in "Around the nation: Tasmania" November 2015 issue of the Australian Law Journal)

Last year Tasmania lost one of its finest jurists and administrators. Peter George Underwood AC was the Chief Justice of the Supreme Court of Tasmania from 2004 to 2008, having been a judge of the court from 1984. He was then Governor of Tasmania from 2008 until his death on 7 July 2014.

As a judge and as Chief Justice he was greatly admired, if not always loved, by Tasmania’s legal profession, and as Governor he was immensely popular and much loved.

Peter Underwood was born in 1937 in the United Kingdom and immigrated to Australia in 1950. He graduated from the University of Tasmania in 1960, and practised law in Hobart for the firm of Murdoch, Clarke, Cosgrove and Drake, the firm in which another of Tasmania’s finest judges, Frank Neasey, had also been a partner. Peter was a highly successful trial advocate for many years before joining Justice Neasey as a judge of the court on 20 August 1984.

Justice Underwood was appointed Chief Justice after 20 years as a puisne judge, and in the 23rd year of judicial life he retired, noting that in that time he had written over 300 civil judgments at first instance and had presided over some 450 criminal trials. In addition, he had sat on, and written judgments in, approximately 230 Court of Criminal Appeal or Full Court cases. And, as the court’s sentencing database records, since its commencement in 1989, he had imposed sentence in just on 1,000 cases.

Peter Underwood had special interests in practical legal education and in the modernisation of civil procedure.

He managed and taught postgraduate courses in advocacy and Supreme Court practice through the University of Tasmania’s Legal Practice Course, and he taught advocacy in all States of Australia with the Advocacy Institute of Australia. He also taught for The College of Law (UK) in Hong Kong and in London.

He introduced civil case management in Tasmania in 1989 and was the first Tasmanian judge to use a computer on the Bench. In a speech to mark his retirement as Chief Justice in March 2008 his Honour quipped:

"A great  deal  about  this  Court  has  changed in  the  23  years  that  have  passed  since  that  forensic catastrophe. When I started out the latest technology in Chambers was an electric typewriter with a golf ball and a Gestener copying machine, the handle of which was vigorously turned by an aging but strong-armed lady in order to distribute our judicial words of wisdom to an eager public. Case management was an expression not to be mentioned by the junior judge, for it was clear that he had no proper comprehension of the role of a judge and the independence of the judiciary."

The “catastrophe” 23 years earlier to which the Chief Justice had referred occurred on the first occasion he sat in the court as a judge. Counsel had opened the plaintiff’s case by telling his Honour that his client claimed damages for psychiatric injury when he cut himself a slice of bread, ate it, and then discovered half a mouse in the remains of the loaf. His Honour, recognising a spoof when he saw one, realised that this was not a genuine claim, but a joke to play on the new judge – a sort of Tasmanian version of Donoghue v Stevenson. Accordingly he laughed, and said, “Oh yeah – you’re going to tell me that the plaintiff then had a nervous breakdown I suppose.” Underwood J smirked widely around the court until, as he later recounted, he saw the look of horror and disbelief on the plaintiff’s face as he, already suffering from post-traumatic stress disorder, rapidly reassessed his view of the Tasmanian judicial system, the principles of fairness and justice, and the chances of having his genuine claim adjudicated by this “idiotic smirking judge”.

In the conduct of curial business, the retiring Chief Justice noted that the biggest changes he had overseen in his over two decades on the Bench had been, after initial resistance by both the Bench and the Bar, the introduction of case management and alternative dispute resolution, both of which became widely accepted as a part of the litigious process designed to reduce delay and cost.

Peter Underwood had a very highly developed social conscience. On his retirement he noted with obvious pleasure that in his 23 years as a judge, society had become primarily knowledge-based in its views and attitudes towards so many things that had altered dramatically in that time. By way of example only, he referred to the shift in thinking over the previous 20 years about the indigenous population of this country, about land rights, about homosexuality and “gay rights”, the change in the role of women in society and the workplace and the approach to dealing with complaints of sexual and physical abuse of women and children.

Extra-judicially his Honour served as chairman of the Executive Committee of the Board of Governors of the Friends’ School in Hobart from 1989 to 1994, and was a highly innovative chairman of the Tasmanian Symphony Orchestra Board from 1997 to 2006.

In 2001 Peter Underwood was awarded an honorary Doctor of Laws degree from the University of Tasmania, in recognition of his services to legal education, the arts, and the administration of justice. In 2002 he was made an Officer of the Order of Australia and, after his appointment as Governor of Tasmania in 2008, he was made a Companion of the Order of Australia.

Although much loved as Governor it was not all plain sailing for His Excellency.

Writing in 2010, Associate Professor of the Faculty of Law at the University of Sydney, Anne Twomey, noted that the Tasmanian Governor’s choice to grant a commission to David Bartlett as Premier in April 2010 proved to be highly controversial (Twomey A, “Appointing the Premier in a Hung   Parliament   –   The   Tasmanian   Governor’s Choice”   (Spring   2010) 25(2) Australasian Parliamentary  Review 53). As Governor, Peter Underwood took the view that the choice of commissioning a Premier fell solely within his prerogative and that it could not be controlled or ceded by  a  political leader. Twomey argued that this was not entirely true.  She  suggested that  if  the incumbent Premier had advised the Governor that he wished to test his strength on the floor of the House, convention would have obliged the Governor to re-appoint him so that he could continue as Premier until such time as the house was recalled and determined confidence. The Governor’s decision should not, Twomey concluded, be used as a precedent for the future.

Then, on Anzac Day 2014, with typical bravery, Peter Underwood in his capacity as Governor, made a speech at the dawn service warning against “glorifying war with descriptions of the mythical tall, lean, bronzed and laconic Anzac”, and calling for the 2014 centenary of World War I to be declared “the Year of Peace”, and for Australia to establish “a centre for the study of peace, conflict and war”.

That speech resulted in a strong reaction from the national media, with controversial columnist Andrew Bolt going so far as to say in an article entitled “Tasmanian Governor Peter Underwood enters hall of shame over Anzac Day speech”, that his Excellency was “not fit to be Governor of Tasmania”. The then President of the Tasmanian RSL, on the other hand, described the speech as “the best he had heard in his life”.

Peter Underwood died in office on 7 July 2014 after complications from minor surgery. He was 76. He is survived by his wife Frances, four children and three step-children.

His Excellency was afforded a state funeral on 21 July 2014 at which dignitaries and family members paid glowing tribute to his intellect, integrity, compassion and humour.

Former Governor and Chief Justice of Tasmania, William Cox AC, remembered his friend of 60 years fondly from university days, saying, “He was young, good-looking and Tasmania’s answer to Troy Donahue”.

Lieutenant Governor Alan Blow OAM remembered a man who gave enormously to the community noting that, “He was a very energetic Governor and very much a Governor of the people”.

Mrs Janet Holmes à Court AC met Peter Underwood when they chaired the West Australian and Tasmanian symphony orchestras, respectively. She spoke of him having said that his life was “just magic” in Tasmania after he had left war-torn England behind. She said: “He was fond of saying, ‘We are boat people’.” She also saluted his courage in being prepared to challenge the status quo. “Not for him conventional wisdom; he sought to change the values of society”, she said

While not a centre for the study of peace, on 23 February 2015 the University of Tasmania and the State Government announced that they will establish a new research centre called the Peter Underwood Centre for Educational Attainment. It is to be funded by the university, governmen,t and philanthropic donations, and will concentrate on discovering the factors which are restricting educational achievement in Tasmania.

Peter Underwood’s widow, Frances, has been named patron of the centre and his successor, newly appointed Governor Kate Warner AM, will act as chair of the centre’s advisory board.

Justice Stephen Estcourt