Henric Nicholas, a legal dynamite ‘who did not suffer fools in court’

During his schooldays, Nicholas acquired the nickname “Spot” because – like Australian tennis great Pat Rafter – he had a 20-cent-size circle of white hair behind his left ear. One of his school contemporaries and a lifelong friend was John Campbell, a farmer and son of the poet David Campbell.

After school, Nicholas enrolled in arts and law at Sydney University and was a resident student of St Paul’s College. He also worked as an article clerk at the then venerable Sydney law firm of Stephen Jaques & Stephen.

Later, he underwent the traditional “rite of passage” for young Australians in the 1960s, cadging a free voyage on a cargo ship to Britain in return for painting the hull. He worked as a research assistant at the International Commission of Jurists, in Geneva, and in a commercial garbage-handling facility in London.

He returned to Australia and was admitted to the NSW bar as a barrister in 1966.

Nicholas was following a strong family tradition. His grandfather, Harold Sprent Nicholas, was a prominent NSW barrister, judge and part-time leader writer for the Sydney Daily Telegraph and The Sydney Morning Herald.

After being an MP in the NSW Parliament and associated with two royal commissions, Harold Sprent Nicholas was appointed a Puisne Judge of the NSW Supreme Court in 1935, and was later a judge in Equity.

He also helped to preserve the Independent Theatre in North Sydney, was the first editor of the Australian Quarterly and was active in the Australian Institute of International Affairs.

A grandson and son of the establishment, young Nicholas may have been privileged as a youth, but his early days at the bar were lean. According to Murray Tobias, QC, he spent much of his first year in chambers “reading the great Russian novelists, and waiting for the phone to ring”.

This period also marked the beginning of his remarkable contribution to wider public life, starting with coaching a Sydney University rugby team and soon after becoming vice-president of the NSW Council for Civil Liberties.

Notorious defamation case

Meanwhile, his practice took off in the area of defamation, initially working as a junior for Michael McHugh – later a High Court judge – and Tom Hughes, who is generally recognised as the godfather of the Australian bar and is a one-time Liberal attorney-general.

Nicholas’ work in the defamation area began with commissions from Rupert Murdoch’s then Mirror Newspapers group, but soon spread to John Fairfax, publisher of The Sydney Morning Herald and The Australian Financial Review (both now owned by Nine Entertainment), and Kerry Stokes’ Seven West Media.

His most celebrated – and, indeed, notorious – case was the one involving the flamboyant Sydney solicitor John Marsden. After six years in court, Marsden won his defamation case against Channel Seven after Today Tonight alleged in 1995 that Marsden had paid underage boys for sex.

Although I have been in a few, I doubt that a gladiatorial contest will always provide to the court the assistance which leads to a just outcome.

— Henri Nicholas

It cost Marsden more than $6 million in legal costs. After his victory, he said “no amount of money, no matter what it could be, can compensate me for the anguish, the pain, the humiliation of the past few years”.

Nicholas’ appointment to the NSW Supreme Court in the early noughties brought out another, stricter, side of his character. According to Richard Ackland, publisher of the online Justinian and Gazette of Law and Journalism, “he did not suffer fools in court. He was dynamite.”

It was at the ceremony marking his appointment that Nicholas laid out in plain, but clear and forceful English, the role of the judge.

“The primary role of the trial judge is clear enough. He or she is to find the facts. The judge is also required to apply the law.

“Some say that on appointment a gulf develops between a judge and counsel. I must say I see it differently. Fulfilment of the judge’s duty in every case self-evidently involves reliance on the contribution of the profession.

“Although it is true that the object of a party is victory, and the conduct of a case is inevitably determined by what will influence the tribunal, counsel nevertheless share responsibility for its outcome.

“And although I have been in a few, I doubt that a gladiatorial contest will always provide to the court the assistance which leads to a just outcome. Litigants seek justice. A judge is more likely to deliver it if their case is conducted to the end that the truth is elucidated rather than obscured.”

Prior to his appointment to the NSW Supreme Court, he had been an assistant commissioner at the Independent Commission Against Corruption, served as a member of the NSW legal profession’s Disciplinary Tribunal, was a member of the NSW Bar Association’s Arbitrators Panel, and the NSW Publications Classifications Board.

For five years he was a trustee of the Centennial Park Trust, a director of the Sydney Theatre Company, chairman of the Eleanor Dark Foundation/Varuna Writers’ House at Katoomba in the Blue Mountains, a director of the Blake Society for Religious Art, and was chairman of the Kimberley Foundation of Australia, which promotes research into ancient Aboriginal rock art in the Kimberley region in north-west Western Australia.

In addition, Nicholas was chairman of the Council of Sydney University’s St Paul’s College, a councillor of the Royal Agricultural Society of NSW, has been a significant breeder of black Aberdeen Angus cattle, and has run marathons in Honolulu, Paris and Melbourne.

Concerning the latter, he was a member of a long-standing running group. One of his legal proteges and running partners, the Land and Environment Court’s Robson, says Nicholas was a kind and generous man who may have been a son of privilege, but never took his position for granted. During those long runs, no subject was out of bounds – whether it was sex, law, politics or society, Robson says.

On one of their outings, Robson and Nicholas were isolated from the rest, ran through some bush and came across a body flat out and upside down. They gingerly turned the body over, expecting to witness some grisly details, and were instead met with the loud words: “F— off!”

Extensive travels

Since 1969 Nicholas was married to Marion (Minny) Nicholas, one of Australia’s most outstanding journalists, who worked for the Daily Telegraph when it was owned by Frank Packer’s Australian Consolidated Press, and who was later a witty, acerbic and pomposity-puncturing columnist on The Sydney Morning Herald.

Henric and Marion Nicholas travelled extensively with their children in Europe, Vietnam, Laos, Myanmar and Cambodia. His daughter, Grace, spent some time as a journalist at News Ltd then later worked for CARE International in Hanoi and Beirut.

Robson recalls Nicholas receiving a 4am phone message from former Liberal prime minister Malcolm Fraser, who was then chairman of CARE Australia, saying Grace was safe and well after a bombing in Beirut.

In a similar fashion his son, Edward, took leave from the Sydney firm of Clayton Utz to work in a law firm in Phnom Penh. His younger son, Hughie, is an audio engineer and a rock musician.

Marion Nicholas retired from journalism and has spent much of her time since cooking for, and feeding, the needy at Norman Andrews House in the basement of the Chapel by the Sea at Sydney’s Bondi Beach.

The Nicholas family plans to hold a private funeral and a public memorial to Nicholas’ remarkable life once COVID-19-mandated number restrictions have been lifted for such gatherings.

Nicholas is survived by his wife, Marion, and children, Grace, Edward and Hughie.