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

[1995] HCATrans 161

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

MELBOURNE

ON

FRIDAY, 9 JUNE 1995 AT 9.20 AM

Coram:

BRENNAN CJ
GUMMOW J

Speakers:

Mr D. Habersberger, QC, Chairman of the Victorian Bar Council

Mr M. Woods, President of the Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

MR HABERSBERGER:   If the Court pleases, it is my privilege to appear today on behalf of the members of the Victorian Bar to welcome your Honours on the occasion of the first sitting of your Honours in Melbourne in your new capacities, as Chief Justice and a Justice of the High Court of Australia respectively.

Your Honours were officially welcomed to the Court in Canberra on Friday 21 April.  However, as few members of the Victorian legal profession were lucky enough to be able to be in Canberra on that day, it is fitting that we welcome you to Melbourne today and I propose to briefly recall something of your Honours’ past deeds.

Your Honour the Chief Justice is the tenth Chief Justice of this Court and the third Queenslander to hold that office.  Your Honour was admitted to the Queensland Bar in 1951 and was appointed a Queen’s Counsel in Queensland in 1965.  You were widely recognised as the outstanding advocate at that Bar, and you enjoyed a wide‑ranging practice in both trials and appeals.  You were briefed in many significant matters, including Lord Denning’s arbitration in the Fiji Sugar Industry dispute, the Woodward Royal Commission into Aboriginal Land Rights and a number of appeals to the Privy Council.  In 1975 your Honour became President of both the Queensland Bar Association and the Australian Bar Association and a member of the executive of the Law Council of Australia. 

Your Honour’s illustrious judicial career began in 1976 when you were appointed as the first President of the Administrative Appeals Tribunal and as a judge of the Australian Industrial Court.  You were subsequently appointed to the Supreme Courts of the Australian Capital Territory and the Northern Territory.  In 1977 your Honour was one of the first appointments to the Federal Court of Australia.  Four years later your Honour was appointed to the High Court. 

As I have said, your Honour is a Queenslander.  Nevertheless, the Victorian Bar greatly treasures your Honour’s many links with us.  Your son, Frank, was a member of our Bar between 1978 and 1984.  Many of your Honour’s former associates are members of our Bar and I trust that in reciting their names I do not overlook anyone.  Some of us marvel at what tolerance and understanding your Honour must have for those associates are, Jack Hammond, Tony Cavanough, Michael Fleming, Peter Power, Debbie Mortimer, James Elliott and Chris O’Grady.  For many years your Honour has been a regular attendee at the Victorian Bar dinner.  This is greatly appreciated and we hope that it will continue despite the increased demands on your Honour’s time now that you have assumed the position of Chief Justice. 

Notwithstanding your Honour’s outstanding achievements your Honour is respected as a friendly and modest man.  This modesty is exemplified by the fact that you thanked those who welcomed you in Canberra by taking comfort from thinking you must have learned to conceal your shortcomings and by relating the story of when you first entered your father’s court to arraign a prisoner at the commencement of a criminal trial.  As your Honour said, you picked up the indictment and misread the name of the prosecutor for the name of the accused and you charged, in your Honour’s words, “one of the dearest and most upright of men with the crime of rape”.  As 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”.

Your Honour Justice Gummow comes from New South Wales and is a relative newcomer to Victoria.  Your Honour obtained a First Class Honours Law Degree from the University of Sydney.  Your Honour then worked for the firm of Allen, Allen and Hemsley as an articled clerk; later as an employee solicitor, and then as a partner.  In 1976, after 10 years as a solicitor, your Honour became a member of the New South Wales Bar.  Ten years later your Honour became a Queen’s Counsel and, a matter of days later, you were appointed to the Federal Court of Australia.  Your Honour’s outstanding work on that court has now been recognised with your appointment to this Court.

Although Your Honour’s visits to Melbourne may have been rare, your reputation as a scholarly author and learned judged was well known to the Victorian profession.  I refer in particular, of course, to your Honour’s joint authorship of “Equity, Doctrines and Remedies” and Jacobs’ “The Law of Trusts”. 

Despite your Honour’s three rather rapid career changes, there has been one constant for nearly 30 years, and that is your continued lecturing at the University of Sydney on a part‑time basis.  At the time of your Honour’s appointment, it was reported in the press that the necessity to give up this activity was your one regret about accepting the move to Canberra.

Your Honour has also been described as “quite adept at the piano”.  No doubt that instrument will now be installed in the High Court building ready for your Honour to entertain your brother and sister Judges and members of the profession at the end of a long and arduous day in Court.

Your Honour brings to the High Court an unparalleled experience as a teacher, solicitor, text-book writer, barrister and judge and no doubt it is this, amongst other reasons, that has led to the universal acclaim at your Honour’s appointment. 

The Victorian Bar congratulates each of your Honours on your recent appointment, welcomes you to Melbourne, despite the weather, on the first of what we hope will be many occasions in your new role, and wishes you a long and satisfying term in office.

If the Court pleases.

BRENNAN CJ:   Thank you, Mr Habersberger.  Mr Woods.

MR WOODS:   May it please the Court, I appear this morning on behalf of the solicitors of Victoria to welcome the appointment of your Honour Sir Gerard Brennan as Chief Justice of this Court, and your Honour Justice Gummow to the Bench of the High Court of Australia. 

The appointment of your Honours was, of course, the subject of frenzied rumour and speculation which reached fever pitch in the month or so prior to the Attorney‑General’s announcement of the appointments.  And that speculation and rumour was not confined to the legal precints of Australian capitals, it ran right through the popular press. 

People variously quoted as “legal sources”, “senior legal sources”, “court insiders”, “senior court sources”, and someone called a “source very close to the Court” were able to assist those in the profession who were running books on these appointments to assess the odds. 

There was the story of another member of the Bench who refused the appointment as Chief Justice, on the grounds that that judge would be seen as too close to, or reliant upon, the Commonwealth, which is, of course, a frequent litigant in this Court.  That same story reported, however, that the government was spending its entire time vigorously trying to talk the judge around.

Another paper referred to the impossibility of Sir Gerard Brennan being appointed Chief Justice for two reasons - firstly, your Honour had been knighted, and the appointment would have been inconsistent with the present government’s views on the constitutional monarchy; and secondly, that your Honour came from Queensland, and so did His Excellency the Governor General, and of course there were insufficient votes to be gained in that State to justify the appointment of two Queenslanders to the two most senior offices in the land.

I should add that the same story quoted senior members of the Sydney Bar as its source; and then went on to quote another source as saying, “Everyone at the Sydney Bar claims to know everything - and they’re always wrong”. 

Speaking of the Sydney Bar, your Honour Mr Justice Gummow’s appointment was described by the Financial Review as, “a surprise choice”, and as “an outside choice” by the Melbourne Age.  Both of these venerable journals, however, describe the appointment as a good one, although for completely different reasons. 

The Financial Review said your Honour had been seen as “a rigorous and conservative lawyer”, whilst The Age described you as “an activist who would place greater emphasis on looking at social consequences and values, as opposed to adhering to strict legalism”.  I guess the upshot is that those whom a recently retired County Court Judge in this State has described as the “illeterati in the press” would collectively see your Honour as at least being even‑handed.

Your Honour’s stamina is testified to by your Honour managing to succeed in that highest of high pressure worlds of large firm practice in Sydney.  My learned friend has spoken about your Honour’s career as a lawyer.  Suffice to say that your Honour’s renowned legal scholarship, particularly in the areas of Equity and Trusts, have been appreciated by lawyers in this State for many years, and your Honour’s ability to impart that knowledge to students is well known, and that has earned your Honour the respect of the profession nationwide. 

Whatever your Honour’s judico-political character, it is your desire to see the law understood by the community which will earn your Honour the respect of the entire community, given the higher profile of this Bench. 

Your Honour Sir Gerard Brennan was appointed to the Federal Court of Australia in 1976 and as an additional judge of the Supreme Court of the ACT in the same year, and President of the Administrative Appeals Tribunal likewise.  Your Honour was appointed to the Bench of this Court in 1981.  If one combines these appointments with your Honour’s Presidency of the Australian Bar Association and the Queensland Bar Association and your Honour’s membership of the Law Council of Australia’s Executive during a period in the mid-1970s, it will be readily seen that your Honour has probably seen more welcomes than the average postman at tax refund cheque delivery time.

Your Honour has recently addressed members of the Law Institute and the Victorian Bar on your Honour’s direction as Chief Justice. It is not for me to recount the matters about which your Honour has spoken. What I can say, with respect, is that your Honour has been most consistent in judicial philosophy. Some 10 years ago, your Honour commented upon a paper delivered to the 23rd Australian Legal Convention here in Melbourne by Justice Sandra Day O’Connor of the United States Supreme Court. Her Honour spoke of the role of the Court in interpreting the Constitution, and the value systems which are a necessary part of that process. Your Honour told delegates that:

“We have developed neither a jurisprudence of social values nor a calculus of social priorities which might serve to govern the drastic power of judicial review of legislation on the ground that it infringes individual rights”. 

Your Honour went on to issue a warning to judges by quoting Judge Learned Hand in the Harvard Law Review of 1939:

“A judge’s authority depends upon the assumption that he speaks with the mouths of others the momentum of his utterances must be greater than any which his personal reputation and character can command, if it is to do the work assigned to it - if it is to stand the passionate resentments arising out of the interests he must frustrate.”

It came as no surprise to the lawyers of this State that your Honour’s appointment to the highest post in the Australian judicature was greeted with such enthusiasm around the nation.  History, indeed, has repeated itself.  If I may quote from the Law Institute Journal, Volume 55, March 1981, at page 95:

“Rarely has a High Court appointment met with such universal acclaim as that of Mr Justice Gerard Brennan.” 

Before he went to the Bench the consensus in every State was that he was a great lawyer and a great bloke. 

As Chairman of the Queensland Bar Association and later of the Australian Bar Association, he was on the Executive of the Law Council of Australia from 1974 up to his appointment as a Federal Judge in 1976. 

John Richards, former President of the Law Institute, and Bob Nicholson, former Secretary-General of the Law Council, both regarded his Honour as the outstanding member of that Law Council Executive.

It was strange that none of the Press tipsters got on to Mr Justice Brennan, because his appointment was being strongly pressed for more than two years by the Attorney-General, Senator Durack, and the Defence Minister, Mr Killen, both of whom knew him well at the Bar.

His Honour is the son of the late Mr Justice Frank Brennan of the Queensland Supreme Court who, because of his capacity to turn out quotable quotes, was one of the most publicised judges in Australia.  He once tried a rape case in which the prosecutrix, a barmaid, said that the accused had previously always left money on the mantelpiece.  On that occasion, she said, he barged in, made love and left nothing.  The judge asked, “Madam, wasn’t it ever on the house?”

Your Honours’ appointments are warmly welcomed by the solicitors of this State.  On behalf of the Law Institute, I pledge our co-operation and extend our good wishes.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Woods.

Your Honours, ladies and gentlemen, the welcome that you extend to us today is, of course, personally most gratifying.  If I might say, Mr Habersberger, that as this is the year of toleration it is appropriate for me to acknowledge my indebtedness to those of my associates who have tolerated me with such enduring compassion from the years that have been past.  I notice some of them here today.  If they look bloodied, at least they look unbowed.

You, Mr Woods, when you recall something of my father’s remarks in court, I can remember many others but time alone would not permit me to go into them.  Nonetheless, I am very grateful for the words of welcome that you have spoken. 

But the welcome which you extend to us here this morning is more than an extension of a personal courtesy.  It is an acknowledgment of the function of the High Court as part of the judicature of both the State of Victoria and the Commonwealth of Australia.  In truth, to speak of the two judicial hierarchies suggests too sharp a division between them.    The autochthonous expedient of vesting federal jurisdiction in State Courts has been developed by cross-vesting legislation so that, in recent years, this country’s integrated system of law has been administered by an integrated system of State and Federal Courts.  We note with appreciation the courtesy of the attendance here this morning of the Acting Chief Justice and Judges of the Federal Court of Australia and Judges of the Supreme  Court of Victoria as well as Victorian barristers and solicitors.

The presence of those Judges in this Court on this occasion is an indication of the mutual respect which the Judges of the several courts of this country bear for one another.  Each of us has his or her own function to perform, but there is a consciousness of the many departments in the third branch of government, all of which play their part in securing the peace, order and good government of the Australian people.

That function could not be performed without the participation of both branches of the profession.  That is a truism to those who practise in the courts but, in the context of public debate about the legal profession’s provision of services to their clients, it seems sometimes to be overlooked that there is an overriding professional duty to the court.  If there be any failure in the discharge of that duty, the administration of justice is impaired.  The courts expect professional competence and impeccable performance of ethical obligations.  If the error were made by governments or government agencies or, even more, if the error were made by legal practitioners themselves, of treating legal practice as merely the rendering of services to clients for financial reward, the profession itself would be diminished.  It is the contribution of practitioners to the achieving of justice according to law that stamps them as members of a profession.  If that is not seen to be their overriding duty, injustices will multiply and the rule of law will be diminished.

The presence of so many legal practitioners here today is an indication of the profession’s commitment to the work of this Court.  This is an appropriate occasion to express the Court’s appreciation for the assistance that well-thought-out and rigorously presented arguments - from the counsel who fails as well as from the counsel who succeeds - give to the Justices of this Court.  We, and the public whom we serve, are indebted to those who raise and clarify the issues at all levels of litigation.

Today is the first occasion on which this Court sits in Melbourne since the appointment of the Victorian Court of Appeal.  That is a significant development in the Victorian judicature.  We extend our respectful good wishes to that Court and to its members, and we join in those expressions of confidence that that Court will exercise its jurisdiction to the satisfaction of its members, of the profession and, most importantly, of the people of Victoria.

I thank you for your attendance here this morning.

GUMMOW J:   Judicial colleagues, Mr Habersberger, Mr Woods, members of the Victorian profession, I am much gratified by the honour done to us and to the Court as a whole by this welcome. 

I am, in fact, no stranger to this courtroom, at least before its unattractive refurbishment.  I still remember, very shortly before my appointment to the Federal Court, offering ineffective resistance to a special leave application in this spot.  Later, I sat on this Bench from time to time when duties on the Federal Court have brought me to Melbourne.  Throughout the whole of my professional life I have had what, at least to me, have been close and happy working relations with the lawyers of this State.  As a young solicitor I worked with senior figures in the Victorian solicitors’ profession including Mr Peter Trumble, Mr Colin Trumble and Mr Jock Macindoe. 

The first counsel at the Bar here with whom I conferred was Mr Aickin, QC.  When I arrived with the client it became apparent, first, that Mr Aickin had studied the brief before my arrival.  He then gave me and the client his undivided attention whilst we were in conference.  That, I grew to understand, was the way things were done here.  No doubt, they still are.  But coming, as I did, from what one of my Federal Court colleagues who is here this morning always refers to as “north of the Murray” this, dare I say it, more civilised behaviour was a pleasant experience.  Nothing that has happened since has changed that view of professional life in this city.

I thank you for what has been said and I look forward to a continued assistance from the profession of this State.

BRENNAN CJ:   The Court thanks you for your attendance here this morning.  We will now adjourn in order to reconstitute for the business of the day.

AT 9.40 AM THE COURT ADJOURNED