‘I dropped dead by the beach’

Damien Toohey: I started work at 12 Selborne Chambers when I was 16, and I worked my way up. I studied law part-time and became a law clerk, and then a managing clerk, and went all the way through doing personal injury and workers comp and all that sort of stuff. And then I just got jack of it and thought, “There’s got to be more to life than this.” So, I took up flying at 30 and became a professional pilot. Ultimately, after doing a lot of different flying, like air ambulance, instructing, charter, search and rescue and regional airlines. Then I got into the airlines and eventually got into Qantas at 43. They said I was the oldest second officer in Qantas, either at the time or ever. I can’t remember, but that was a hoot!

And I have been flying ever since. But in 2013, I had a cardiac arrest out at Balmoral Beach, and I dropped dead on the concrete down there. I was resuscitated and defibrillated by a navy medic who was passing by and she saved my life. I had bypass surgery and, when I was in hospital, I just used to watch the surgeons, and I thought, “Wow. They’re here at 7:30 in the morning. They’re here 8pm at night and giving the gift of healing.” And I thought I’ve got to do something important with my life. And I always wanted to go to the bar, so I decided, then and there, that that’s what I do.

AA: What is so meaningful about flying?

DT: For me, it’s the ultimate test of character because of the persona. I often say to people, I’m going to put my suit of armour on, which is my uniform, because when I put my uniform on, it strengthens my mind about the task at hand. And I mean, flying is very joyful, but it’s very exacting. And what I like about it is if you can’t do it, don’t pretend that you can, and always put your hand up. And so it’s been a great guide for my personality over the years because I always self-critique, stop myself from getting too bold, and don’t pretend. I’ve got nothing to pretend about. I either can do something or I can’t. If I’m in court and stuck on something, I’ll always say, “Look, your honour. I don’t know.”

AA: Do you find that putting on your barristerial garments has a similar suit of armour effect for you?

DT: It does and it doesn’t. It protects me because I can feel my way into the persona. I got it from my dad. My dad was very old when I was born, and he died when I was young, but he always dressed in a suit. I was just captivated by it because his shoes were always shining. He taught me how to shine shoes. And I’ve always held firm to looking the part – looking the best you can in all the circumstances. But it does help. It helps to put on the uniform. I think I put a post on LinkedIn once that I used to study with my wig on when I was doing the bar exams because it helped my brain focus. And because I’ve got so much on in my life, like flying and a full-time load at the bar, I have to hone my mind on what I’m doing.

AA: Tell us about the flying work you’re doing now.

DT: I returned after COVID-19 a little later than many others because my practice was going quite well. I was not flying because we all got stood down by the airline I fly for, and then I gradually found my way back. And that was wonderful. So it was at that time that I re-qualified for the A380, but I’ve since changed aircraft to the A330.

AA: And how is your week structured? How many times are you flying? How are you balancing that against having your workload as a barrister?

DT: In the airline, we have a 56-day roster period, and we can bid for trips on the days we want to make those trips. It depends on your seniority, like the number at the deli, as to whether you get that trip. If you don’t, you have to try and swap with someone if you’ve got something on. And so I bid for my flying when the roster comes out, look ahead and see what’s available, and then try to take on work during that period. I attend a lot of conferences and give advice, as well as the work I can do and court work. It’s just whatever I can fit into those times.

AA: It’s not as though you’re in court nine to five, Monday to Friday, and then you’re doing the red-eye between those days in court.

DT: No, and I’ll often bid for flying Bali flights that leave on a Friday afternoon and get back Sunday morning. I try and make trips like that that don’t impact too much on the week, so it doesn’t leave me a lot of time to do other stuff.

AA: How do you find managing that juggle? Do you find it to be motivating? Do you find it exhausting? Is it both?

DT: It’s nothing to do with exhausting. I love helping people, and I like meeting new people. I don’t like going to parties, but I enjoy meeting people who are in need, who need advocating and who don’t have a voice. That’s what I’m about.

AA: And is there anything you can learn from one vocation to the other? Is there anything about your barristerial work that informs how you operate as a pilot?

DT: Yeah, as a barrister, I tend not to leave any stone unturned, and then that helps a lot with flying. But it’s cross-pollination because in flying, we use an acronym which is called GRADE, which is gather, review, analyse, decide and evaluate. So I try to bring that sometimes to law because I think that’s a very important stage of the decision-making process.

AA: It sounds like those transferable skills help you in your practice.

DT: You’ve got to be a bit careful because sometimes, as a barrister, you can become what appears to be a little bit dictatorial because you are in a decision-making role, and people need to be whipped into shape a little bit. And sometimes I have to stop myself and think, “Okay, now I’m just being a bit arrogant here, maybe there’s something you’re missing.”

AA: Have you ever used the phrase, “This is your barrister speaking,” as you might do over the loudspeaker from the cockpit?

DT: No!

AA: What’s happening in the aviation law space right now?

DT: Well, it’s quite interesting. People, like pilots, are flying longer now or as older people. So that presents its challenges. I find the regulator and CASA quite open-minded. Most pilots think they’re not. Most pilots think it’s them and us, but I don’t. I work with CASA quite a lot, and so I find them quite helpful. People are back to flying. There’s a lot of disciplinary stuff around the traps and I deal with a bit of that. People are getting themselves into strife.

People’s attitudes have also changed since COVID. People are less likely to follow the party line now and that’s got challenges. But it’s very much the same. Dealing with a pilot who’s having issues in terms of disciplinary matters, I find that’s the same as doing a plea in the local court. You just put your hands up and try to explain what’s happened, and then you get yourself out of there as quickly as possible.

AA: Have any legislative or regulatory changes happened recently, be it here in Australia or internationally, that are shifting the landscape for someone like yourself practising in the aviation space?

DT: Well, there’s a push-on regarding medical matters. Most pilots just put their hands up in there and think, “Oh, no, this is it” because it can be a very career-defining moment. I mean, it happened to me, but I was lucky. I didn’t have any damage to my heart. So I could get back after the mandatory six months off. I’ve got experience with getting through that process, and I know how important it is.

There’s a worldwide push to increase the age because fewer pilots are around and fewer are being trained. So they’re trying to push it out from 65 internationally to 67, which will bring challenges. Still, they’re considering all sorts of things at the moment, like single pilot operations in airline operations, which is just nonsense, and extending the age limits was not a bad one. There’s a lot of people who go early, who are very sharp and very healthy, very well, and there’s a lot of young people who are drongos and quite unwell.

AA: Do you have any particular predictions for some of the trends we might see in the aviation law space this coming year?

DT: No, but people need to be mindful and careful about what they’re doing. There are a lot of new entrants into the aviation space. There’s a lot of young people coming through, not necessarily young, but certainly inexperienced, and they don’t know what they don’t know, but they’re being thrown into roles that maybe they shouldn’t be doing. Are there roles that I would never have done? I know people who are doing cadetships with 300 hours in the right seat of an airliner. Well, I was flat out being a flight instructor or flying around in a crappy old Cessna with 300 hours, and anything more than that was more than I could probably handle.

AA: What’s it like having the unique perspective of being a pilot in the air and a lawyer on the ground dealing with CASA and other aviation-related matters? What’s it like to have an insight into those different perspectives?

DT: It’s very helpful. Generally, I keep my mouth shut because my opinion only becomes important when things get difficult up until then. Everyone’s got their view about things. What’s important to one may not be important to another. I might see some issues with it, but it’s nowhere to be. Yeah, it’s like my son, I don’t tell him everything. I think he needs to know. He’s got to learn what he needs to learn without me telling him. And I find that very much with people I come into contact with,

AA: Why is flying such a good hobby for them?

DT: It’s good because it’s very exacting as a skill. Coming through as a pilot, I did every job under the sun. I did bus driving, cleaned toilets, and vacuumed the air ambulance station to try and meet the chief pilot. And I’ve driven courtesy busses and loaded bags, newspapers, everything. So, it gives you greater insight. If you are a lawyer or a professional person, it allows you to roll your sleeves up and get dirty. Do proper, real jobs where you meet real people, salt of the earth people, and they can inform you about their life experience and knowledge, which opens you up.

AA: You had a near-death experience on Balmoral Beach and it strikes me that you are unafraid to do what you think you need to do. Why should others adopt that kind of attitude?

DT: There are no limitations in life. When I left the hospital, the registrar discharging me said, “We’ve fixed you. Now, go ahead and live a full life.” And it was the best thing anyone could have said to me. I felt that way anyway, but I had been in a controlled environment where I was being looked after. And I was scared. Life is all about fear. I’ve been dealing with fear for a long time before I had my cardiac arrest. There’s a great book called Feel the Fear and Do It Anyway. And there’s so much to that. Get out and do it! You get nothing done in the lounge. And it’s so easy to roll over and watch TV and talk about the people who are doing stuff. Just be one of them. Just get up and do it. Life is a really sweet experience, and it requires forgiveness, motivation, calculation, dedication, and all those things to be a good person. Like all those things, they sound trite but so true. Forgive often and be kind and nice to people.

I came out of the hospital, and I had to do my law degree again. And I sat around, and I had the shits about it for a while. Then I thought, “Well, look, I either go and do it or I don’t.” At 48, I had a full-time load of flying, so I did the law part-time, online, and I did a five-year degree in three years. It was full-on and it was out of control, but it was fantastic. And it set me up for how things are now because nothing much has changed!

Damien Toohey is a practicing barrister at 2 Selborne in Sydney. To find out about his mediation practice, visit respectmediation.com.au.