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McAlary, Frank Stratton (1925–2010)

by John Farquharson

Frank McAlary had a distinguished legal career as a Sydney barrister, and was a passionate pastoralist. He was equally passionate about his faith and worked at weekends attending those who were forsaken and forgotten. But he was more than that, for he was also the "dancing man", who was caught on film leaping, twirling his hat in the air and frolicking down a Sydney street at the end of World War II. His pirouettes captured the joy of Australians on VP Day 1945. It has become one of Australia's most celebrated cases of mistaken identity.

He recalled later in an interview that it was a "very spontaneous affair. Chester Porter, myself and Barry Egan [a former Compensation Court judge] and his wife came out of the Law School building [in Elizabeth Street] and were standing there on the edge of the crowd and a Cinesound truck was going along filming and Chester Porter said, 'give 'em a show, Frank'. So I said ok and I jumped out and did a series of twists and turns, and as I was doing them I suddenly thought, my God, my master solicitor will see this if it gets on the newsreels and I'll be in trouble. So I darted off into the crowd. That's really all that ever happened".

It was shown on newsreels in cinemas shortly afterwards, and then it just got lost and didn't appear again for years. But when 50th anniversary of the end of World War II was coming up, an organisation called Australia Remembers set out the find out who everyone was who appeared on the newsreels. Frank said he didn't put his hand then, but he did later, under heavy pressure from colleagues and friends. However, three or four other people did and Ern Hill was identified as the dancing man. In 2005 the Royal Australian Mint decided to put the image on the obverse side of the dollar coin. It was then that Patricia McAlary came out and said, "They've made a dreadful mistake", adding that her husband was definitely the dancing man. The mint went ahead and used the image, but without identifying the man. Mrs McAlary demanded an apology from the mint, which it refused. McAlary, positive that he was the dancing man backed his wife's call. Chester Porter, QC, corroborated McAlary's account, saying, "blind Freddy could see it's Frank McAlary". Some years ago colleagues of McAlary put up a picture of the dancing man outside his rooms in Selborne chambers. There the matter rests.

When McAlary retired in December, 2002, the NSW Court of Appeal held a special sitting at which president Justice Keith Mason described him as a forceful advocate who could inform and persuade a judge with charm and utter frankness. The president went on, "Yours has been a most varied practice. Common law was your staple diet, but you moved freely in equity, family law, commercial cases, local government law and many other fields. Special mention should be made of your role as an appellate advocate. The court thanks you for the assistance given to it (and its predecessor the full court of the Supreme Court) over many years.

"Another aspect of your advocacy style has been its forcefulness. If prodded, you do not take a backward step. Your nickname 'Roan Bull' probably attests to the number of opponents who have been gored. Judges have also felt your wrath. In the Court of Appeal, presided over by Mr Justice Moffitt, you had a blazing row with Mr Justice Hutley. Even you thought you might have gone a little too far and this was confirmed when you received a note from Justice Moffitt commanding you to attend his chambers at the conclusion of the hearing. You were relieved when, upon entering the judge's chambers, you were greeted with a glass of whisky. He said, 'Here Frank, take this and settle down, I haven't seen such a good show in years.'"

Frank McAlary, who has died in Sydney on January 17, aged 84, after a heart attack, was born in Sydney, at Darling Point, on March 1, 1925. His parents, Daniel Patrick McAlary and Beryl Louisa Stratton, lived on a property, Emu Park, near Warren, NSW, where McAlary grew up. His great grandfather was an Irish labourer, who came to Australia with his wife about 1840. They lived in Sydney and Grafton before going to Victoria and settled in the Kelly country. They left there in 1880, because of the trouble over the Kellys, and a group of them went to Warren and settled there. McAlary's grandfather was very successful. He started of as a labourer and fencer, but in the end bought three or four properties in the Warren district. The family still own part of the land they settled on.

McAlary's father died when he was 10, and in a sense he, as the eldest (there were four brothers and a sister) became head of the family. His mother tended to do nothing without consulting him. The family stayed on at Emu Park until he was 13, when his mother decided to move to Sydney because he would never get an education. He hadn't been to school, though he did correspondence courses. They lived in Woollahra until his mother bought a house in Rose Bay in 1942. He went to the Christian Brothers school at Edgecliff and then Rose Bay. His mother had insisted he go into a profession and decreed it should be law.

He enrolled as a part-time student after getting a job as an articled clerk at Freehills, Hollingworth and Page. He graduated in 1946 with Gough Whitlam and, after three years at Feehills, he joined Minter-Simpson where his role was if anyone had a problem it was his job to fix it, whether it was a problem in conveyancing, contract law or whatever. One job he did was being responsible for (Sir) Warwick Fairfax's first divorce from Betty Buckland.

When he went to the Bar in 1948 at 23, Minters gave him some briefs, including a junior brief at the Maxwell Liquor Royal Commission. McAlary was junior to Hugh McGuire, who was representing the wine and spirit merchants.

McAlary got his first rooms in Chalfont chambers, where he shared with Jack Slattery (later Chief Judge at Common Law). When Chalfont broke up, McAlary bought a room at Wentworth/Selborne chambers in 1957. At the beginning he did crime, tenancies and then started doing workers' compensation. Sir John Kerr led McAlary in a number of cases, mostly involving negligence claims. (Sir) Garfield Barwick led him several times in dam cases, Clive Evatt (Snr) in cases involving personal injuries and also Eric Miller.

One case in which McAlary established a key principle was Cooper v Standard Portland Cement. McAlary appeared for Cooper, a little boy who had his arm burnt off. The boy was sliding down a tip of spill, which came very close to a high-tension wire at 32,000 volts. The boy was a trespasser who put his arm up and got it burnt off. The jury returned a verdict for the boy. But McAlary faced a problem, there was no duty of care owed by an occupier of a property to a trespasser. That was in the 1960s. McAlary won it in the High Court and then it went on appeal to the Privy Council, where he won it again. That was the first case where it was held that the occupier of land owed a duty of care to a trespasser. It established a precedent. However, it doesn't apply now because the High Court subsequently abolished all the different duties of care, deciding instead there would be a duty of care to take reasonable care.

McAlary took silk in 1969 and has been involved in a number of notable cases including Astley v Austrust (1999), Brodie v Singleton Shire Council (2001) and Burnie Port Authority v General Jones Pty Limited (1994), a case which he won at each level of the judicial hierarchy on a different ground at each level. The depth and breadth of his practice has been vast.

He appeared for a wide variety of sporting personalities - horse trainer, Bart Cummings, fight promoter, Bill Mordey, Robbie Waterhouse, and Rugby League player Ian Roberts. But perhaps his finest hour was when he didn't open his mouth in court. McAlary owned Yeeda station, in the Kimberley, where an Aboriginal named Wallace, who was working for him, came home late at night and found a man in bed with his wife. Wallace allegedly hit the man with an iron bar and was charged with murder. McAlary sat in the back of the court, the only white face among a sea of blacks, with his manager, Gordon Gallea, looking at the witnesses giving evidence and they couldn't remember anything. So the magistrate ruled there was no evidence and discharged Wallace. Outside the court, McAlary said to Gordon, "That's remarkable, I thought there was a strong prosecution case". Gordon said, "I told those witnesses that if they gave evidence against the Big Fella's friend the Big Fella would deal with them".

McAlary always had a hankering for the bush, but he didn't go back to the bush. He stuck with the law but he followed the bush through buying properties, Each time there was a rural depression he bought a couple of properties and over time the properties improved. He bought a number of properties in the Glen Innes district, including Lombardy, which his son, Daniel manages. He also bought several properties in the West Kimberley. Later he sold two of them, but retained one, Mount House, which his daughter, Caitlin, manages.

A man of true humility and faith, he regularly attended Mass and communion and worked at weekends for the St Vincent de Paul Society at Matthew Talbot Hostel. He also went on several pilgrimages to Madjagouria, in Bosnia, where it is believed the Virgin Mary revealed herself to a number of school children and continues to do so.

Perhaps the last word on Frank McAlary should go to Justice Michael Kirby, formerly of the High Court, who said, "To understand his technique of advocacy one had to see him from the other side of the Bar table. Opponents never knew his secret weapon. It was those eyes. It was absolutely unbearably painful for a judge to reject the slightest argument, however trivial, of a barrister always so utterly convinced of the rectitude of his client's cause. I hope those eyes are captured on video in the High Court's filmed archives. They should be played and replayed in centuries to come to teach new judges of the need to be on the lookout for advocates of passion like Frank McAlary. A big mind. A big heart".

He is survived by his wife, Patricia (nee Saunders), who he married in 1952, his sons Daniel and Michael, and daughters Marianne, Suzanne, Patricia and Caitlin. Two of his sons, Shane and Frank, predeceased him.

Frank Stratton McAlary, born March 1, 1925; died January 17, 2010.

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Citation details

John Farquharson, 'McAlary, Frank Stratton (1925–2010)', Obituaries Australia, National Centre of Biography, Australian National University, http://oa.anu.edu.au/obituary/mcalary-frank-stratton-1564/text1627, accessed 26 November 2014.

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