Brennan CJ, Kirby, Hayne, Callinan JJ - Welcome Hobart CER

[1998] HCATrans 86

H I G H   C O U R T   O F   A U S T R A L I A

SPECIAL SITTING

WELCOME TO

THE HONOURABLE CHIEF JUSTICE SIR GERARD BRENNAN, AC, KBE

THE HONOURABLE JUSTICE MICHAEL KIRBY, AC, CMG

THE HONOURABLE JUSTICE KENNETH HAYNE

THE HONOURABLE JUSTICE IAN CALLINAN

AT

HOBART

ON

MONDAY, 30 MARCH 1998, AT 12.01 PM

Coram:

BRENNAN CJ
KIRBY J
HAYNE J
CALLINAN J

Speakers:

Mr T. Bugg, Vice-President of the Law Society of Tasmania

Mr M.E. O’Farrell, President of the Tasmanian Bar Association

TRANSCRIPT OF PROCEEDINGS

BRENNAN CJ:   Mr Bugg.

MR BUGG:   If the Court pleases.

It is with pleasure that I appear on behalf of the Law Society of Tasmania to welcome the Court to Tasmania on this occasion.  I also extend the welcome of the President of the Society, Mr Dixon, who is not able to be here today but who has prepared the remarks I am about to make.

More particularly, I wish to record that this occasion marks the commencement of the Court’s sitting in Hobart which reflects the Court’s policy of sitting in places other than Canberra “when there is sufficient business to warrant it”.

Whilst you, Chief Justice, have visited Tasmania on judicial duty with the Court before, this occasion marks the first such visit for you as Chief Justice, and for your Honours, Justice Kirby, Justice Hayne and Justice Callinan.  It is pleasing indeed for the Tasmanian profession to welcome each of your Honours in person, and to congratulate each of you on your respective appointments within and to the Court.

The legal professional is undergoing rapid change as it faces opportunities and threats from its external environment.  Whilst to a degree the Tasmanian profession has been insulated from some of these changes that have occurred in mainland Australia, it is becoming more and more aware of the need to adapt and embrace the changes that our mainland counterparts have been involved in.

In particular, I refer to such things as mutual recognition of interstate admissions, the right to practice in other State or Territory jurisdictions, national competition policy and its impact on the reservation of work to lawyers, common standards for practical legal training and common professional conduct rules.

Hopefully, this period of rapid change will better equip the legal profession to serve the needs and wants of its clients, and more particularly, so far as this occasion is concerned, to enhance the professional competence of those members of the profession who appear in this Court.

It is three years since the Court last sat in Hobart.  If insufficiency of business is the cause of that, perhaps the profession in Tasmania is at fault for being too efficient and expert in dispute resolution!  Be that as it may, the fact that you are here today does indicate a sufficiency of business and, moreover, gives some of our number the opportunity of appearing before the Court on their home ground.

Again, I welcome the Court to Hobart and trust that its visits here will become more frequent in the future.

If it pleases the Court.

BRENNAN CJ:   Thank you, Mr Bugg.  Mr O’Farrell.

MR O’FARRELL:   If it please the Court.

On behalf of the Tasmanian Bar Association, I welcome your Honours to Hobart.

To your Honours Justices Hayne and Callinan, I extend the congratulations of the Tasmanian Bar to your recent appointments to the Court.  To your Honour Justice Kirby, I extend our rather belated congratulations on your appointment and, to your Honour the Chief Justice, we congratulate you on your elevation to your present office.

These belated wishes exemplify the plight of Tasmania in our federal system.  It is a function of population that we do not entertain an annual sittings of this Court as the business necessary to ensure the Court’s presence does not always accumulate.

Nevertheless, it is with great pleasure that we welcome you here today.

I know that the Court values the opportunity to sit in each of the States as often as business permits to strengthen the national character of the Court.  It is a policy which we hope will never be discarded.

Although our Bar is a small one, and to a large extent those who practice at the Bar are also solicitors from a fused profession, we nonetheless have a proud tradition and I believe that in times past, many of our senior advocates have been highly thought of by the Court.  That is a tradition which we hope will continue and one which we think will be strengthened by the Court’s visits to Tasmania.

We note with sadness that at the end of these sittings, it will also mark the last time on which your Honour the Chief Justice will visit Tasmania with the Court.  On behalf of the Tasmanian Bar, may I thank your Honour for your service to the law throughout your distinguished career and especially as a Justice and Chief Justice of this Court.  We wish you a long and happy retirement, although I have no doubt that your contribution to Australia will not cease when you leave the Bench of this Court.

If it please.

BRENNAN CJ:   Thank you, Mr O’Farrell.

I speak on behalf of Justice Kirby, Justice Hayne and Justice Callinan as well as myself in thanking you for your warm welcome.  The generosity of your remarks reveals the traditional courtesy which the profession in this State has always extended to this Court and its Justices.  We appreciate both the sentiments you express and the assistance which you give the Court in the cases in which you appear.  Some of the most significant cases of recent years have emanated from this State.  Some of them have been heard here but others have been heard in Canberra because of the necessity to constitute a full Bench for their determination.  In recent years, it has been the practice of the Court to hear cases requiring a full Bench in Canberra and, on circuit, to hear only those cases requiring a Bench of no more than five Justices.  This limits the range of cases which attracts the Court to a circuit sittings but it is no indication of a change in Court policy.  The policy of sitting in Hobart, Brisbane, Adelaide and Perth each year when there is sufficient work to justify the sittings remains.

The Court’s policy of sitting in Tasmania and in the capitals of the States more distant from Canberra followed vigorous advocacy by the Attorney-General of Tasmania, Mr G. Crosby Gilmore, and his predecessor, Mr Herbert Nicholls in correspondence with the editor of the Commonwealth Law Review in 1905.  Mr Nicholls wrote this:

“Many of the appeals will be from decisions on local Statutes, whose construction can as a rule be best argued by those fully conversant with the whole Statute law of the State, and the effect of different Acts upon each other.  The expense of sending appeals away would frequently prevent a just appeal going to hearing, as has so often been the case while the Privy Council was the only tribunal of appeal.  An appeal can rarely be efficiently conducted unless one of the attorneys or counsel engaged in the lower Court assists counsel in the Appeal Court.  The advantage to the State Bar also, of arguing its own appeals is considerable by increasing the efficiency of the local Bar.”

Mr Gilmore was of a similar view, and he wrote this:

“I am aware that in advocating an itinerary Court I am taking a course somewhat opposed to precedent, but it seems to me that bringing the fountain head of justice, so to speak, to a man’s door, is an advantage which outweighs much objection, grounded perhaps on an assumption of dignity, and may fairly excuse a deviation from the path of precedent.”

Well, the precedent has been firmly set in another way since then.  In the three years since this Court last sat in this Courtroom, there have been many changes in the Court, in the Supreme Court of Tasmania and in the legal profession of this State.  I should like, on this occasion, to mention and to pay tribute to the memories of three distinguished members of the Supreme Court who have died since this Court last sat here:  Sir Stanley Burbury, Mr Justice Frank Neasey and Mr Justice Bill Zeeman.  All were scholars and all were, in every sense, gentlemen.  After giving great leadership as Chief Justice, Sir Stanley, assisted by the gracious Lady Burbury, served as a respected Governor of the State and Administrator of the Commonwealth.  Justices Neasey and Zeeman leave not only their judgments but other contributions of their intellects which will be of continuing benefit.  Neasey’s work on Inglis Clark and Zeeman’s drafting of new Rules for the Supreme Court are memorials additional to their judgments.  Two distinguished members of the profession whose advocacy often assisted this Court should also be mentioned:  Mr Roger Jennings, sometime Solicitor-General for Tasmania and Mr John Kable.  The loss of these gentlemen has been felt by all who knew them.

When my predecessor, Sir Harry Gibbs, was welcomed here as Chief Justice, he said in the course of his response:

“         Our light work‑load in Tasmania is due in large part to the very high standard of the work of the Supreme Court of this State, a court which has always enjoyed great respect throughout Australia and which has, so long as I am able to remember, always had upon it judges of the highest judicial calibre.  Because there is less work in Tasmania than in other States, we have not had the same opportunity to get to know well as many members of the profession in Tasmania as in some other places.

Those observations could be repeated today.  That was an occasion, I might say, which I well remember.  It was my first visit to Tasmania as a member of the Court and the manner of our arrival, some may remember, was rather adventurous.  It was during a disruption to the ordinary air service and most of the Justices, together with the Court staff, travelled on an eventful flight from Canberra on a poorly heated DC 3 that was chartered for a return trip to Hobart after dropping a football team - no doubt, Australian Rules - into Canberra.  Sir Ronald Wilson’s light aircraft touched down safely late at night after the plane before it chose the water rather than the runway.  Fortunately, there were no injuries.

The sittings of the High Court in Hobart is more than a symbol of the Court’s territorial jurisdiction. It reflects the function of the Court as an integral part of the judicial hierarchy of the State of Tasmania. The genius of the founding fathers avoided the bifurcation of judicial power that was a feature of the American Constitution. By force of Chapters III and V of our Constitution, there is an integrated system of law to govern our nation, unified - or perhaps more accurately - co‑ordinated by the High Court. The Court was thus required to exercise both the function of a Constitutional Court and the function of determining appeals in all justiciable matters that might come from the Supreme Court, from Federal Courts or from courts exercising federal jurisdiction.

By practising before the courts, the profession performs the indispensable function of acting as ministers of justice.  By your work, competently and conscientiously done, you maintain freedom under the law.  It matters not how pedestrian a task may be.  It assures to the client the rights which can flow only in a society ordered by the law and not governed by rude power or the exercise of human whim.  The profession today is oftentimes examined critically.  And so it should be.  But I would hope that public examination does not cause the members of the profession to lose their own sense of social worth and the worth of the work that they do.  In the ultimate result, the peace of the nation depends upon it.  We acknowledge the Court’s indebtedness to the profession and we thank you again for your welcoming courtesies.

The Court will now adjourn until 2.15 pm.

AT 12.14 PM THE COURT ADJOURNED