Vale: Brian Withers AM

Brian Withers remembered for lasting contribution to justice

Brian Withers, who passed away on 13 April, 2021 will be remembered as a giant of the legal profession, with an unwavering commitment to access to justice and a person whose humility and humanity shone through in everything he did.

Brian was held in such high regard that the Law Society in 2005 introduced an award in his honour – The Brian Withers Award for Services to the Law Society and the Profession.

Brian, at the time a Master of the Supreme Court, responded to the news of the eponymous award with his typical self-deprecating humour. In a formal letter addressed to then Society President Alex Ward, Brian stated: “I thought you had to be dead before something like this was ever contemplated.”

In graciously accepting the honour, Brian went on to write that “I have never regarded myself as having contributed an excessive amount to the affairs of the profession.”

But Brian consistently went above and beyond throughout his career, even if he did not consider his service to the profession and community in such a way.

Brian was born in Mannum in 1945, moved to the city as a child and was educated at Unley High School, followed by Adelaide University, where he graduated with a Bachelor of Laws in 1969.

He undertook articles with Haese, Davey and Mulligan, before working with Peter Waye for two years, and then commencing a long and fruitful career with Elliot Johnston in 1970. He joined as a Partner and the firm subsequently was re-named to Johnston Withers. Brian built up a large workers compensation and personal injury practice, and later took on a substantial volume of medical negligence work.

Andrew Collett, speaking at Brian’s funeral service, described Brian as the “engine room and the rudder of Johnston Withers.”

“The firm, past, present, and future, owes him an incalculable debt of gratitude,” Andrew said.

Speaking to the Bulletin in 2015, Brian said of his time at Johnston Withers: “I acted for a lot of workers, people from overseas who were in a sense the cannon fodder for factories. That really fostered my interest in people getting a fair return in their circumstances.”

Brian said Elliot Johnston instilled in him a passion to help the vulnerable and disadvantaged.

This passion never waned, and was evident throughout Brian’s work with the Law Society, Legal Services Commission, Law Council of Australia, and numerous other organisations.

Brian joined the Law Society Council in the early 1980s, and was Society President in 1990-91. He held roles as Chairman of the Professional Standards Committee, Chairman of the Law Council’s Access to Justice and Pro Bono Committee, Chairman of the Legal Services Commission, Secretary of the Law Foundation of South Australia, and Chair of the Board of Examiners. He also Chaired the Society’s Justice Access Committee for 11 years.

One of his greatest legacies is as the driving force behind, and inaugural Chair of, the Litigation Assistance Fund (LAF), which commenced in 1992.

Brian was instrumental in the creation of the LAF, the charitable body which provides funding assistance for people to pursue legitimate civil claims, and Chaired the LAF’s Advisory Board for 12 years. The Fund has assisted thousands of clients and has achieved more than $200 million in compensation for clients.

During his 13-year tenure on the Law Council’s Access to Justice Committee, Brian was prodigious in his contribution to national legal aid advocacy. He developed the “National Strategy for Legal aid”, he set up the first National Legal Aid Congress, and presented numerous papers and speeches to promote the implementation of a strategy to increase access to justice, which included focuses on remote, regional and indigenous legal issues.

During this period, he also served as Chair of the Legal Services Commission, from 1997 until his appointment to the Bench in 2004.

When Brian commenced his term as Chairperson, he had already been a board member of the Legal Services Commission since 1988. His appointment as Chair came at a challenging time, when the Commonwealth was significantly reducing the amount of funding it provided to legal assistance services. He oversaw a complete restructure of the Commission. During his tenure, Family Dispute Resolution Conferences were implemented, and Commission lawyers commenced visiting prisons to provide family law and child support advice to prisoners. Under his leadership, the Commission began offering child support advice, assistance with migration law and help in disputes with Centrelink. In his final Annual Report as Chair, he wrote that he believed the Legal Services Commission has “a mandate to ensure that poverty does not become an insurmountable barrier to justice”.

Former Supreme Court Justice John Mansfield, who also delivered a eulogy, said that Brian was “universally admired and respected for his integrity, his industry and his fairness and wisdom, whether performing Master’s functions or as a Judge of the District Court.”

In 2015, Brian was appointed as a Member of the Order of Australia for his service to the law through his leadership in a number of organisations and as a judicial officer.

Brian’s passion for access to justice was almost matched by his fondness for red wine, golf, and cricket, and eclipsed by his love of his family and friends, particularly his wife Mary, children Susie and Ken, grand children Hugo, Toby, Annabel, Phoebe, Jacqui and Pia, and step children Georgina and Louise.

Brian has left an indelible mark on the legal profession and will be greatly missed. B