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From South African boy to Supreme Court judge

From South African boy to Supreme Court judge

BEING SWORN in as a judge of the Supreme Court of New South Wales on Tuesday marked the culmination of a life dedicated to the law of two countries for David Hammerschlag.After having been…

BEING SWORN in as a judge of the Supreme Court of New South Wales on Tuesday marked the culmination of a life dedicated to the law of two countries for David Hammerschlag.

After having been admitted as a solicitor and called to the bar in both South Africa and Australia during his career, Hammerschlag was appointed to the Supreme Court in December last year, something that came as a surprise.

“I wasn’t expecting to be invited to join the court, but when I was, I was excited and honoured to accept it,” he said.

But the appointment may not come as a surprise to many of his peers. Hammerschlag became well known in his adopted country for numerous high profile cases, including acting for Frank Lowy in the Orange Grove affair in 2004, and Rodney Adler when he appeared before the HIH Royal Commission of 2001.

But such cases were a world away when Hammerschlag studied law at the University of Witwatersrand in Johannesburg before doing his articles at Werksmans in February 1976. While at the firm he worked equally in commercial and property law, and litigation under the supervision of principal solicitor Lionel Benjamin, “a doyen of property lawyers in that country”, Hammerschlag said.

In 1978 he was admitted as a solicitor and was invited to join Werksmans as an employed solicitor. The stint was short-lived however, Hammerschlag being conscripted into the South African army in July of 1979.

Law dominated his time with the armed services. He progressed from basic training to an advanced course in military law, ending with an appointment as a full-time military law advisor until June 1981.

Following the army, he returned to Werksmans and was made a partner in 1982. A year later Hammerschlag was called to the bar in Johannesburg, where his main focus was commercial, and to a lesser extent criminal, law.

It was at that time that he “was fortunate enough to be led in a number of important cases by I A Maisels QC, who is famous for the fact that he was the counsel who appeared for Nelson Mandela in the treason trials [1956 to 1961]”.

Maisels played an influential role in Hammerschlag’s formative years as a South African barrister. “He was one of my mentors at the bar, and I appeared with him in a number of important cases, including cases in the Appellate Division there, which is the equivalent of our High Court,” he said.

In those days in South Africa, Hammerschlag’s occasional appearances in criminal cases were before a judge and not a jury, except with capital offences which required a judge and two assessors. But despite rising through the legal ranks in South Africa, with “the standards of the legal system … still high in 1986”, the political conditions made life too dangerous by the mid-1980s.

“My predominant reason for leaving was that in July 1985, South Africa was declared a state of emergency, which is tantamount to martial law, and I was not prepared to live there under those circumstances. I had two daughters at the time — one of whom was four, and one of whom was 17 months old.”

Upon arriving in Australia in 1986, he joined Freehill Hollingdale & Page, and after satisfying the requirements of the Solicitors Admission Board, was admitted in NSW in December of 1987.

One year later he was a partner at the firm now known as Freehills, only to be called to the bar in 1991. In 2000 he became a senior counsel, a position he retained until being appointed to the NSW Supreme Court.

But when asked, more importantly, who he supports in the cricket and the rugby, the reply was instantaneous: “Australia and Australia on both counts,” he said, explaining that his link to Australian rugby has been all the more strengthened by the fact that he has “in the last number of years, been retained by the rugby union players association, and have done most of their legal work”.

And after building a new life in Sydney, Hammerschlag has been back only once to his birth country, and expressed no desire to return.

“I decided in 1986 when I came to Australia that Australia was going to be my new home, and I effectively had little to go back for,” he said.

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