A trip to Italy and my father’s death in Australia

by Nimal Wikramanayake
(Excerpted from A Life in the Law)

Anna Maria’s father died on her birthday on 8 October 1970. Due to economic constraints and exchange control regulations in Ceylon, we were unable to attend the old man’s funeral. Anna Maria had not seen her mother, who was getting on, for nearly 12 years. Anna Maria was coming up for her first five-year long service leave at Cabrini Hospital. We decided to go to Italy on a holiday and spend some time with her mother.

It was July 1977 when we arrived in Rome on a hot, steamy morning. We wandered around in the Fiumicino Airport before we took a plane to Venice that afternoon. We were booked on an Alitalia flight and such flights in Italy were an exhilarating experience. Alitalia normally overbooked its flights so it was a simple question of first come first served – not who bought his or her ticket first, but who got onto the plane first.

At the terminal we got on to the bus, which was to take us to the plane. When we got off the bus a 100 feet from the plane, the Italians charged towards the plane with Anna Maria leading the way. She was an expert in dealing with this type of travel, and used her elbows with great ferocity. I sheepishly lagged at the back of the crowd. When I got onto the plane I found that Anna Maria had managed to reserve a seat for me.

It was then that the comedy unfolded. As usual, there were about 10 people standing in the aisle without any seats. There followed the typical Italian pandemonium, with the standing passengers screaming and yelling at the stewards and stewardesses. As usual, the Carabinieri were called and after the standing passengers were escorted off the plane, we took off for Venice.

We arrived there an hour later and drove up to Asolo. I will not bore you with details of our visit to Italy. (I hate it when I am invited by my friends for dinner and after dinner they produce photographs of their holidays, which should only be of interest to them.) But we spent one memorable day in Venice on July 16 – on the Feast of the Redeemer. We met Tony Lopes and Jack Keenan of the Victorian Bar, and his wife Elspeth Keenan under the bell-tower in St Mark’s Square. We watched an exhilarating fireworks display and then Tony suggested we have dinner.

We wandered around and found an expensive restaurant. This was before the days of credit cards and my heart sank. The holiday had severely depleted my finances and I shuddered when I saw the prices on the menu, even though it was 1,000 lira to the Australian dollar. Fortunately, Tony rose to the occasion and insisted on paying for the meal.

The holiday was uneventful save for two things. I read Voumard (second edition) from cover to cover on the plane going over to Italy and again on the way back. When we were nearing Melbourne, and the pilot announced that we would be landing at Tullamarine in half an hour, all the passengers got up and cheered. It was good to be back home. Sadly this does not happen when one is arriving at Melbourne today.

My father

By 1978 I had settled into my daily grind, with a rare foray into the Supreme Court. By this stage, I had ceased to do any criminal or family law work.In July I brought out the third edition of Voumard relating to the sale of land in Victoria, with the consulting editor, Sir Alistair Adam, being responsible for inserting the relevant authorities in the appropriate places.

Early on in my practice, I had ceased doing work in the personal injuries field as I was only receiving briefs from plaintiffs’ solicitors. In this area of the law, a barrister does not get paid until the successful completion of the plaintiff’s case. If the plaintiff is unsuccessful, then there is no possibility of being paid for one’s efforts.

As I was confined mainly to the commercial area of the law, I could see no future for myself other than being a County Court hack.I used to have lunch once a month with my friend Jacob Okno, a solicitor, and he reassured me regularly that I would make a name for myself one day as a result of my association with Voumard: The Sale of Land in Victoria.

Towards the end of the year, Anna Maria and I drove up to Sydney to spend time with my parents. An interesting feature of this visit was that a brief had been delivered to me to advise on a complicated trusts matter. I took it to Sydney and showed the brief to my father. He thought for a moment, and despite the fact that he had had a couple of heart attacks and was suffering from acute heart failure, he gave me the answer in five minutes. The drive to and from Sydney was very uncomfortable as the temperature was in the high 30s and our car did not have air-conditioning.

The following year 1979 was soon upon me and the months plodded on mechanically and monotonously. But in August of that year I received a telephone call from my brother who told me that Dad, having gone out to celebrate my mother’s birthday on August 7, had suffered a massive heart attack and was dying. I had looked up to him all my life, for unlike most boys who stop appreciating their fathers when they grow up, he was my hero and I could not contemplate life without him.

I was sobbing in my room when my friend Tony Lopes walked in and asked me what had happened. I told him that my father was dying and Tony left abruptly. Half an hour later, his wife Marilyn came in to console me. I thought this gesture of Tony’s was really heart-warming.

Dad survived this heart attack but then had a series of further heart attacks. I decided to go to Sydney with Anna Maria and celebrate his 77th birthday on December 7, at the Royal Prince Alfred Hospital. Life was extremely hard financially and we were always without money. I could not afford the plane fare for both of us to go to Sydney so my elder brother paid for our tickets.

I was then briefed to appear in a case in the Supreme Court of Victoria on December 6, 1979. The case, I thought, was a relatively simple one. If my recollection serves me right, it was an action brought by a partner, a woman, against her de facto. She had paid a deposit on a property but both parties were registered as proprietors of the property. They had both taken out a mortgage for 80 per cent of the value of the property.

I raised an argument that since the de facto was a party to the mortgage, he had an equity in the property commensurate with the mortgage and therefore a division of the proceeds had to be in accordance with that principle. The Supreme Court judge hearing the case, Justice Sam Gray, kept sniggering throughout my submissions, saying that there was no basis for such a submission. Ultimately I could not stand his sniggering anymore and I told him, “Your Honour, my submissions are not a matter for levity.”

I had been only seven years at the Bar in Victoria but I had had 13 years’ practice in Ceylon. The judge glared at me and said, “Would you mind repeating yourself?” I was aware of my father’s advice that I was entitled to be treated with respect by any judge I was appearing before. The judge obviously thought that I would withdraw my statement, but I said, “Your Honour, it is fairly obvious that you are not possessed of my arguments. I reiterate that my submissions are not a matter for levity.”

The case went on to the morning of December 7 and I told the judge that my father was dying in Sydney and I had to catch a flight at 2.30 pm. He delivered judgment that day, entering judgment for the wife. A short while later the High Court delivered judgment in the case of Calverley v. Green and restated the proposition I had put to the Supreme Court judge to the effect that a registered proprietor of property who was a party to a mortgage had an equity in the property commensurate with half the registered mortgage to which he was a party. My client, however, was disgusted with me and decided not have anything to do with me.

This story does not end here, for I appeared several times before that judge and lost every single case, including the unlosable case in December 1989. In that month I was appearing in a Supreme Court case and when the lists came out and I saw that this judge, Justice Sam Gray, was hearing the case, my heart sank. I went in to see my friend, Ross Howie, now retired Judge Howie of the County Court, and said to him, “Ross, I have an unlosable case tomorrow in the Supreme Court but I have drawn Judge Sam Gray and I am going to lose it”.

Sure enough, I lost the case.

Some years later, I was vindicated when two judges of the Supreme Court, Mr Justice Hayne and Mr Justice Smith – and later the Court of Appeal – held that Judge Gray’s decision was completely and utterly wrong. But by then everyone in the legal profession knew that I, the author of Voumard: The Sale of Land, had lost a significant case on land law.

I suffered a severe setback and it took me several years to recover. This, unfortunately, often happens to barristers who fall foul of judges. Judges often exact their vengeance on barristers in this most unprofessional way. We have no one to turn to for assistance.

My heart was in pieces when we got on the plane to go to Sydney that afternoon. Not only had I lost a good case, I had lost a solicitor who would never brief me again. I was also going to see my poor father who had a very short time left on this earth.

My brother picked us up at the airport and we drove to the Royal Prince Alfred Hospital. Dad was seated on his bed, his head drooping. He looked completely lost and bewildered. My mother said, “Guy, here is your son Nimal. Why don’t you sing him that song you used to sing him when he was a little baby?”

Dad looked up at me with a puzzled expression on his face. My mother said, “You remember, Waltzing Matilda”

That was the first song my father ever sang to me when I was a baby. My father looked up and in a high-pitched squeaky voice said, “Walthing Tilamy, Walthing Tilamy …” and repeated this over and over again. It was heart-wrenching. Here was a man who had once been a lion of the Ceylon Bar, a brilliant advocate and a remarkable cross-examiner, now in this pitiful condition. Old Father Time certainly is ruthless and merciless. I thought to myself, Father Time will come to all of us, ultimately, and will be the only winner in the game of life. I took my emaciated, weak father in my arms and embraced him. There was nothing else I could do; I felt completely and utterly helpless.

That night, we went back to my mother’s little flat. We were woken at 2.30 am by ghastly loud shrieks. It was my mother screaming and yelling. My brother had telephoned to say that my father was going through another heart attack and was dying. He came over, picked us up and we rushed to the hospital. There was Dad, in bed with an oxygen mask over his face, throwing his arms about and shouting, “Porter, porter!”

We stood there helpless, wondering what we were to do. Mum, my brother and I were dumbfounded. Anna Maria rushed up to Daddy, cradled his head in her arms and started stroking his head saying, “Daddy, we will get the porter, we will get the porter, relax. He is having his dinner at the moment and will be here shortly.” Ultimately, she was able to calm him down.

Dad’s condition raised a number of questions in regard to euthanasia. His cardiologist wanted to turn the respirator off and let him die, as he was in a pitiful, hopeless condition. I would not have a bar of it. I did not want my father to die although he may have been suffering. Dad was suffering from severe heart failure and his end was very near. He died two and a half months later on February 23, 1980.

I remember one occasion in 1974 in Equity Chambers when Christopher Dane walked into my room one afternoon and said that his father had just died. He told the other barristers in chambers too. It was as if a bomb had fallen on Hiroshima. All the barristers packed up their things and left. They did not want to face the death of Christopher Dane’s father. I walked into his room later on that evening and asked him whether he was doing anything for dinner. He said no, so I invited him home. Grief is something that needs to be expressed and shared with others.

Death was approached in a completely different way in Australia in those days. The dead were left in cold, lifeless funeral parlours to await an equally morbid church service, and then they were either buried or cremated.

In Ceylon, the dead body used to lie at home for several days until all the family, friends and relatives had paid their respects. This process enabled those left behind to grieve adequately. I believe this pattern of behaviour is still carried on in Ireland. Today, however, the practice in Sri Lanka has reverted to the English practice where the dead are now left in funeral parlours.

During Dad’s funeral I tried to keep my emotions in check but when they played the hymn “Nearer My God To Thee” I broke down and started sobbing. I told Anna Maria, “I’m sorry, I’m sorry.”

She put her arms around me and said, “Look, there is nothing to be ashamed of – just let yourself go’

I continued to sob throughout the service while my two brothers and my sister sat stoically throughout the ceremony.Anyway, when I returned to Owen Dixon Chambers on the Tuesday following my father’s death, no one came up to me to offer their condolences, even though the barristers were aware that my father had died.