An Exclusive Conversation with David W Marks KC

David W Marks QC is a commercial silk in Australia, specialising in tax. He serves on the Disciplinary Panel of an international practitioner organisation. David enjoys the policy work that goes with membership of professional bodies. He practises from the Inns of Court in Brisbane, and says he got into the law, and especially tax, mostly by accident.

Pictured: David W Marks QC

Give to your profession. Whether you work on policy, or flip burgers at the district law association bbq, just do this. You will be rewarded threefold.

Please tell our readers a little about yourself and what considerations prompted you to pursue a career in law? According to you, what are the basic qualities that every good lawyer should have?

“Queensland had 3 days of work experience for school students aged 15. I asked to do something medical.

Instead, someone assigned me to the largest law firm in my town, Rockhampton.

I did not know what to expect.

A partner met me at the door on the first day. We climbed the narrow stairs up to their office.

As we got to the top, the partner pointed to the practice manager’s office – “He manages us”.

This was my first clue. The law is a business! That interested me.

The business side of the law has always fascinated me.

We go to work with only a sandwich, and somehow create value during the day. It’s a miracle.

And people pay us to perform this daily miracle.

So, I was interested in the law. I would bicycle into town, on days off, and watch the Magistrates Court or the other courts. I watched a couple of murders in the Supreme Court, prosecuted by local barristers who themselves later became judges. It was a strong, small Bar in Rockhampton. I learned a lot, watching.

I learned that lawyers have to master a body of knowledge (for example, psychiatry in one case I saw). They have to work as a team, for example with their expert witness. This interested me.

Thus, law was an unexpected passion.

So was tax.

Years later, I was doing an Honours thesis for my Bachelor of Commerce degree.

A few weeks into this work, I decided tax was explaining a lot about the form of some arrangements I was writing about.

In 1988, Australia had just introduced enormous changes to tax laws. I was reading the new literature by top authors, on new laws.

I read a lot of tax that year.

Feez Ruthning (now Allens) offered me 2-year articles of clerkship starting 1990. They asked what work I would like.

I said – “commercial litigation”.

Did I have a second preference? Well, my thesis involved tax, so — “tax”.

I was assigned to the tax section for 2 years, and stayed.

I worked for 10 years with a clever, ethical, and business-savvy boss.

Solicitors and barristers are separate professions in Queensland. Although I hated leaving my law firm, the Bar was calling.

Again, I was lucky to be surrounded by clever, ethical people at Inns of Court, who nurtured me in the craft of being a barrister.

When time came to apply for silk, the same people gave me a firm push.

But a senior colleague in Perth had already “got my head right”.

He told me how to think about a silk application. It is a business plan for the Bar – what you will do with silk - for the Bar. I am grateful to him to this day.

Only last month, I repeated his advice to an overseas colleague, when the silk application round opened in New Zealand.

So, the law - and tax law - happened by accident. I kept my eyes open, and watched some very fine people.

I enjoy informal development of younger practitioners. I decided that I should try to shape who will be doing my job in 10-15 years’ time.”

Tell us about some of your best experiences in the courtroom.

“Sometimes you have to make something from nothing. But it requires preparation.

I was acting for tenants of a shop, in the mining town of Mount Isa.

On paper, we had very little we could say. We had walked on the lease, & just hadn’t paid the rent, it seemed.

But the tenants had a story about how the lease came about. If believed, it was enough to shake the landlord’s claim.

I had to get some concessions from the landlord.

I was cross-examining him. He recalled signing the lease in front of a Justice of the Peace in suburban Brisbane, who then signed as witness. He recalled asking his solicitors to post the lease to Mount Isa, for the tenants to sign.

This was a lesson in how memory is fallible.

I think the landlord genuinely held those beliefs.

He misrecollected.

He was surprised at what I showed in cross-examination.

Our theory was that he had signed in Mount Isa. The difference mattered, given the sequence of events.

He continued to deny our sequence of events.

I put it to him that he had met someone - call him “Joe Smith’.

No, he said he knew no one called “Joe Smith’.

Well, Sir, please look at the lease. See. The witness is “Joe Smith”, Justice of the Peace. You must have met him.

The landlord agreed the JP witness was “Joe Smith”, and agreed he must have met “Joe Smith”.

But he denied he had met him in Mount Isa.

I tendered the Gazette, appointing “Joe Smith” deputy clerk of courts in Mount Isa, and showed the landlord that document.

Finally, a concession that the document must have been signed in Mount Isa. He remained puzzled, but I knew my side’s explanation. My side had given the landlord a lift to the airport in Mount Isa. On the way, they stopped at the courthouse, because the landlord needed to sign the lease in front of a JP.

The revelation about the Mount Isa JP threw the other side into confusion. Their client had a confident and sensible story, which I think he had genuinely believed, but which we had exploded in cross-examination.

We settled our dispute.”

What methods do you use to conduct legal research and what advice do you have for budding lawyers?

“It is tempting to talk about databases or tools. But these vary from place to place.

Instead, I will talk about trying to frame the right query.

Think about how the question may come up, in practice. Direct your research to those contexts.

For example, if the question is about whether a litigation settlement deed can be made to depend on some other event, think about transactions where deeds are held in escrow. Think about transactions where there is often a conditional agreement, when not by deed. These issues can generate litigation in the contexts of securities (eg guarantees) and conveyancing (eg conditional contracts).

This gives you a bigger target for finding case law. Then test whether those cases apply to your problem.

Do not Google the question. Your client could have done that. You are from a learned profession. Use your learning and your intelligence, not something written by an unknown hand that may be out of date or wrong.

Do feel that you can workshop a problem with colleagues, to test ideas. We are a learned profession. Professionals will listen to a colleague’s genuine problem, and give their thoughts. But be careful of your client’s secrets, and don’t conflict a colleague. And work the problem out as far as you can, before asking for help.”

Could you walk us through a regular day at your work? What aspect of the daily job of being a lawyer interest you the most?

“There is no typical day, but I can just talk about yesterday.

I made 2 phone calls to junior colleagues, for some mutual business development. But frankly I enjoy their company. One is in Brisbane, and the other in Darwin.
Another junior dropped by, to announce she’s back in business full time, after a period working part time. We talked about her work, and she made a good pitch to me. She was my pupil barrister a long time ago.

I read for a conference, about how to settle a dispute. Then I rang my Sydney junior in that matter, and settled an advice with him. We chatted about what was happening in our lives. The advice went out an hour later, after I had scratched around in his draft one last time.

Work came in by email, to be costed. You have to give an estimate to get most jobs.

Work came in by telephone, but awaiting approval for silk to lead the referring junior.

I worked on a paper to be given to the Tax Office tomorrow; and on a paper I’m giving to The Tax Institute conference in Canberra next week.

I drew stumps early. Having just had Covid, I am trying to be gentle with myself. So, this was not a big day. It was an enjoyable day, chatting with young, clever people in three States.”

Can you tell us about a time when a case did not go the way you expected, and why? Young lawyers often find such situations difficult to deal with. Drawing from your experience, what would you recommend to young laters who find themselves in this situation?

“One quality you need is - resilience.

I was in a civil fraud trial, for the defendants.

We had very little to say.

But we had just enough, so that it was ethical to continue to go over to court each day and put the plaintiff to proof.

That is a terrible position to be in, in civil, as the civil standard is balance of probabilities. (It is not like adopting that posture in crime, where the criminal standard of proof is higher.)

Each day I would get beaten up.

Each night I would return to chambers with a mountain of preparation for the next day of evidence.

And I would wonder how I could ever get through this. It took a toll.

Each night, I took a 20-minute walk around a quiet part of the city, about 10pm. Somehow the subconscious delivered a realistic plan of attack on the remaining evening’s preparation. I returned calm and focussed.

When the case was adjourned part-heard after 8 days, I was a wreck. This had been debilitating and exhausting.

I flew interstate. I spent 3 days in the great public art galleries of Canberra & Sydney.

I played a game with myself, of trying to decide the most beautiful object I’d seen that day. On the second day, I remember deciding that a stone Buddha (on loan from National Museum of Kampuchea) was the most sublime object of the day. This mind game restored me.

Acknowledge that there will be damage. Understand that there will be the highest level of stress. Deal with immediate stress. Work on the damage. This is a hard game. So, if you need help, ask.”

Excluding legal books, do you like to read other stuff? What books would you suggest to budding lawyers?

“I’m partway through the last of John Le Carre’s “Karla” series, of spy novels. I do look for escapism.

I also look for beauty. One place I look is New Zealand: its people, its paintings, and its poetry.

Elizabeth Morton’s poetry collection, “Wolf” is electrifying. Elizabeth changed my thinking about a lost form of poetry in english. Charles Brasch’s poem, “Winter Anemones” was written when a friend brought his favourite flowers to him in hospital. A dying man, Charles wrote undying words. The future is bright. If we count lyricists, as I think we must, Lorde is 25 and mononymously recognised worldwide. Lorde’s sister, Indy Yelich, has published 2 collections of high seriousness, and is not yet 24. There are no limits to ambition in New Zealand literature.

So, find an obsession outside law.

It doesn’t matter what it it.

My literary obsession is New Zealand poetry.”

What advice would you like to give our readers, especially young lawyers and law students?

“Accept happenstance. Build resilience. Participate and network, in this learned profession. Learn from ethical and competent people, and reject what you see that is unethical or second rate.
Give to your profession. Whether you work on policy, or flip burgers at the District Law Association BBQ, just do it. You will be rewarded threefold.
Nurture colleagues. This is a hard game. You can make a difference in their lives.”

Interviewed by Prerna Deep