Ceremonial - Brennan CJ, Gummow - Welcome to Adelaide - CER

[1995] HCATrans 242

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

SPECIAL SITTING

WELCOME TO

CHIEF JUSTICE SIR GERARD BRENNAN AC, KBE

AND

JUSTICE WILLIAM MONTAGUE CHARLES GUMMOW

AT

ADELAIDE

ON

TUESDAY, 22 AUGUST 1995, AT 9.33 AM

Coram:

BRENNAN CJ
GUMMOW J

Speaker:

MR D. Clayton, QC, President of the Law Society of South Australia

TRANSCRIPT OF PROCEEDINGS

BRENNAN CJ:   Yes, Mr Clayton.

MR CLAYTON:   May it please the Court, it is my honour to represent the Law Society of South Australia and the legal practitioners in this State. 

The annual visit of the High Court to Adelaide is much like Christmas.  Not only because it is a visit by wise men from the east but because of the considerable interest that is generated simply by the presence of the Court. 

The visit to Adelaide by the ultimate Court in the Australian legal system demonstrates to this community that the determination of cases is not always confined to Canberra.

The South Australian profession has always done its best to make the members of the High Court feel welcome.  That is particularly so this year.  It is not often that we have the opportunity to welcome a new Chief Justice and a new Puisne Judge.

Already much has been said to acknowledge the appointments of Sir Gerard Brennan as Chief Justice and Justice Gummow as the Puisne Judge at the ceremonial sitting of the Court in Canberra on 21 April and sittings in other capital cities.  I do not apologise for repeating some of the things that have been said previously.  Very few South Australian practitioners were able to travel to Canberra for the ceremonial sitting.

Your Honour the Chief Justice is the tenth Chief Justice of the Court and the third Queenslander to hold that office, following Sir Samuel Griffith and Sir Harry Gibbs.

Your Honour was admitted to practice in Queensland in 1951 and was appointed one of her Majesty’s Counsel in 1965.

When your Honour was in practice it was rare for lawyers to work outside their home State.  The “dog fence” was intact.  While your Honour did not practise in South Australia you were well known in this State by your reputation as a leader of the Queensland Bar.

You were Senior Counsel in Lord Denning’s Arbitration in the Fiji Sugar Industry in 1969 and in 1972 the Senior Prosecutor in a long running trial for the murder of the District Commissioner in Rabaul, Papua New Guinea.  In 1974 you were Senior Counsel for the Northern Land Council in the Woodward Commission into aboriginal land rights in the Northern Territory.

As a student in 1949 you had been the President of the National Union of Australian University Students.  You were the President of the Australian Bar Association in 1975 and 1976 and a Member of the Executive of the Law Council of Australia between 1974 and 1976.

In 1976 your Honour was appointed the first President of the Administrative Appeals Tribunal and Judge of the Australian Industrial Court.  In the same year you were appointed the first President of the Administrative Review Council and appointed an additional Judge to the Supreme Courts of the Australian Capital Territory and the Northern Territory.  Your Honour was an inaugural appointment to the Federal Court of Australia in 1977 and it came as a surprise to no one when your Honour was appointed a Justice of the High Court of Australia in 1981.

In common with other Judges who have served on the Law Council of Australia, your Honour has maintained a warm relationship with the legal profession.

At the ceremonial sitting in Canberra on 21 April, your Honour gave an explanation of the significance of the Oath of Allegiance and Office which is taken by new Judges.  Your Honour’s comments should be compulsory reading for all legal practitioners and students.

You explained the importance of the promise of loyalty and the promise to “do right to all manner of people according to law without fear or favour, affection or ill will”.  You spoke of the importance of the words “according to law” and the tension that can exist between justice and the rules of law.  Importantly you said, “this Court is not a Parliament of policy; it is a court of law”.  You gave a reminder that “the law is most needed when it stands against popular attitudes”.

At the ceremonial sitting in Canberra your Honour confessed that even Chief Justices have short comings.

You told the story of a trial about fifty years ago when as a Judge’s Associate you arraigned a prisoner in a court presided over by your father who was a Judge in Queensland.  When reading the indictment your Honour misread the name of the prosecutor for the name of the accused.  Your Honour confessed “I charged one of the dearest and most upright of men with the crime of rape”.  Your Honour continued “such is the camaraderie of the Bar that Counsel for the accused leapt to his feet and pleaded not guilty on behalf of his learned friend.”

The Law Society has made strenuous efforts to identify any connection which your Honour may have with the State of South Australia.  Sadly we have been able to identify few apart from your Honour’s passion for one of the State’s primary products.  Nevertheless, your visits to the State have always been much appreciated by the South Australian profession.

Your Honour Justice Gummow is also well known to South Australians by reputation.  Your Honour is the thirty-ninth person to be appointed a Justice of the High Court.  At the time of your appointment the South Australian profession was beginning to know your Honour as a member of the Federal Court of Australia.  Your Honour’s background and experience equips you very well for appointment to this Court.

The two textbooks of which your Honour is a joint author “Equity Doctrines and Remedies” and “Jacobs Law of Trusts” adorn the library shelves of every equity lawyer.  Your Honour’s scholarship in that area is well known to all.

You lectured at Sydney University for approximately thirty years and recently had conferred upon you the Degree of Doctor of Laws Honoris Causa.  You practised as a solicitor with the well known firm of Allen Allen and Hemsley for ten years and then practised at the Bar in Sydney for a further ten years.  Your Honour took silk in 1986 and was appointed a judge of the Federal Court of Australia later that year.

The South Australian profession welcomes Your Honour’s appointment and is confident that you will make an important contribution to the cases that come before the Court.

News of the High Court sometimes is slow to travel to Adelaide.  However, one piece of information that has come to this State is that your Honour was recently standing in the stacks in the library of the High Court building.  Your Honour was not in that section where one would expect to find the books on equity but in that section of the library which houses the criminal law collection.  While reading a passage in one of the books most intently your Honour was noticed to shake your head and mutter, “Oh dear, they have messed up the criminal law too”.

Intriguing references have been made by some people including the Commonwealth Attorney-General and the President of the Law Council of Australia to your Honour’s piano playing.  As yet no South Australian practitioner actually has any direct knowledge of whether these statements have a foundation.  However, we do look forward to your Honour’s visits to South Australia in years to come and learning first hand whether there is substance to the reports.

The South Australian profession sincerely congratulates each of your Honours.  We offer our support in carrying out the work of the Court.

We wish each of you a successful and stimulating term of office.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Clayton.  Your kind remarks are much appreciated.  The profession in South Australia has been accustomed in modern times to extend a warm welcome to judges and practitioners from other States and I have been the beneficiary of that spirit from time to time.  I am bound to say that the proceedings of the Law Society at Victor Harbour have been marked in my experience by an enthusiasm for activities which indicate a profound interest in topics which extend beyond the law and that has been a source of both considerable interest and satisfaction on the occasions I have attended.  However, the significance of this morning’s ceremony, marked by the presence of the Chief Justice and the Justices of the Supreme Court, is institutional rather than personal.

The welcome which you have extended affirms both the professional and personal relationship that exists between this Court and the courts and the legal profession in this State.  The annual sittings of the High Court in Adelaide is more than a symbol of the Court’s territorial jurisdiction.  It reflects the function of this Court as an integral part of the judicial hierarchy of the State of South Australia.  By the exercise of its jurisdiction, the laws that operate in this State are effectively integrated into the legal system of the nation.  The advocate who appears here, by discharging his or her duty to the client, is necessarily engaged in work of constitutional importance.  The results of advocacy, expressed in the judgment, will be the law on the subject for the nation, even if the subject relates only to South Australia.

This is not, however, a court of general appeal.  Nor, of course, is it a trial court as ordinarily understood.  The jurisdiction of the Court calls for advocacy of a special kind.  It is advocacy based on extensive research, mastery of the appeal book and a high level of conceptual thought.  When the advocate offers assistance of that quality, he or she not only serves the interests of the client but also assists materially in the doing of justice according to law.

I hope it will not be thought to diminish the dignity of the office of Chief Justice of South Australia if I take this opportunity to acknowledge our debt for his assistance when, as Doyle QC, he was appearing as counsel in this Court.  We have had great assistance from other South Australian advocates.  We expect - indeed we need - a good standard of advocacy.  Generally speaking, our expectations have not been disappointed.  And so I thank you, Mr Clayton, for your remarks this morning which are significant to this Court as it commences this sittings in Adelaide.

It is not the practice of this Court, even in formal retirement ceremonies, to comment on a Justice who has served on this Court and I shall not depart from that practice today except to say that we, who have been privileged to sit in this Court next to Justice Deane, cannot but rejoice for the nation, while we suffer our own sense of loss, at the announcement last evening that his Honour, with the essential and loving support of Lady Deane, is shortly to assume the office and duties of Governor‑General.  Justice Dawson, as you know, will be sitting in place of Justice Deane for the remainder of the Adelaide sittings.

I thank you, Mr Clayton and the other members of the profession in South Australia whose presence here this morning is a mark of respect for this Court, for the kindness of your words and the warmth of your welcome.  It is both traditional and, in my own case, most satisfying.

GUMMOW J:   Mr Clayton, your Honours and members of the legal profession.  I thank you all for the compliment paid to the Court as a national institution and to myself as a member of the Court by your attendance here this morning.  The kind and over‑generous remarks made by the speaker are much appreciated.  Their accuracy in some respects, as he says, remains to be seen.

As has just been observed, this is by no means the first occasion on which I have sat on the bench in this city.  This is the first time I have sat to one side of the portrait of Sir Samuel Way.  Those who have persisted enough to read a work on equity of which I am co-author will know the significant contribution made by that Judge and other members of the Supreme Court of South Australia to the development of equity jurisprudence in this country.

On numerous occasions, I sat here as a Judge of the Federal Court, both at first instance and on appeal.  As an apprentice Judge I was fortunate enough to sit with that most learned and wise of lawyers, Mr Justice Fisher.  From him I managed to learn much in the practice of my new trade.

I recognise here this morning many members of the legal profession whom I got to know through their work before the Federal Court and in some cases through my earlier time at the Bar and in practice as a solicitor.  I look forward confidently to the further assistance from the profession in the many years that would appear to lie ahead in this Court.

I thank you for your attendance and for the kind words that have been said this morning.

BRENNAN CJ:   The Court will now adjourn until 10.15.

AT 9.48 THE COURT ADJOURNED