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

[1995] HCATrans 312

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

PERTH

ON

TUESDAY, 24 OCTOBER 1995, AT 9.33 AM

Coram:

BRENNAN CJ
GUMMOW J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Honourable J.P. Carr, Justice of the Federal Court of Australia

The Honourable G.A. Kennedy, Acting Chief Justice of the Supreme Court of Western Australia

The Honourable Justice Rowland

The Honourable Justice Wallwork

The Honourable Justice Heenan

Master Ng

Master Adams

Acting Master Chapman

Speakers:

Ms J. Eckert, President, Law Society of Western Australia

Mr C.J.L. Pullin, QC, President, Bar Association of Western Australia

TRANSCRIPT OF PROCEEDINGS

BRENNAN CJ:   Ms Eckert.

MS ECKERT:   If the Court pleases, it is my honour to represent the Law Society of Western Australia this morning.          We welcome the members of the High Court to Western Australia once again.  Your annual visit is appreciated by us and we look forward to it as a highlight of the legal year.

It is well acknowledged that the appointment of your Honour as Chief Justice of the High Court is one which is very widely acclaimed.  Your Honour has had a distinguished career with which we are all familiar and which culminated in your becoming Chief Justice on 21 April of this year.  Instead of concentrating on the details of your career, I would like to briefly highlight one concern held by your Honour and which has been central to your approach, namely the delivery of justice to the community by the legal profession.

Mr Peter Taylor SC, writing in the ALJ about your Honour’s appointment described how your Honour has emphasised the contribution of the profession to the work of the Courts and its consequent social, special and heavy responsibility in securing the administration of justice under the rule of law.  If I may quote from Mr Taylor, whose words are far better than any I could write:

It is a consistent theme of his Honour’s approach to the practice of the law that those responsibilities must be assumed, and discharged, by each individual legal practitioner no matter what the area of practice, no matter who the client and no matter what the personal cost of service to the ideal of justice and equality before the law.  Thus, the pursuit of principle and the agony of unremitting, but wise, diligence are the prices that the legal practitioner must pay for the privilege of service to the law and to the community.

It is at times hard for members of the legal profession to consistently and professionally discharge those responsibilities regardless of the personal sacrifice.  There are so many external pressures on the profession - for example from the media and from government.  We are told to be more competitive and to be a profitable industry, not a profession.  It is therefore sometimes difficult to remember to hold onto the notions of our primary obligations. 

However, with a Chief Justice such as your Honour who holds the beliefs that you do, the profession has someone at its pinnacle to emulate.  A Chief Justice to inspire and, we hope, to encourage us to maintain and develop our role in the legal system.  We welcome your appointment as Chief Justice knowing that you bring to the position many fine qualities and unquestionable ability.

Your Honour Justice Gummow is the thirty-ninth person to be appointed a Justice of the High Court.  Your Honour is well known to all of the legal profession in Western Australia, not only because of your previous nine years with the Federal Court, but because of the two text books of which you are joint author, namely, “Equity, Doctrines and Remedies” and “Jacobs Law of Trusts”.  Your ability in these areas is well acknowledged and your understanding of the difficult and complex issues involved in these areas has contributed substantially to our understanding.

Since graduating, your Honour has lectured in Equity and Intellectual Property at the University of Sydney.  It is a tribute to you that you continued your teaching after your appointment to the Federal Court.  It is imperative that we teach and train future lawyers thoroughly.  Your long commitment to this vital component of the legal system will continue to be of great benefit to the profession.  The knowledge and scholarship that you bring to the High Court will be of great advantage to us all, and I congratulate you on your appointment.

We are sure that each of you will have a very successful term of office, and may I also offer the continued support of the Western Australian profession to all members of the Court.  May it please the Court.

BRENNAN CJ:   Thank you, Ms Eckert.  Mr Pullin.

MR PULLIN:   May it please the Court.  It is with great pleasure that I appear on behalf of the Western Australian Bar Association to welcome your Honour Justice Brennan on your appointment as Chief Justice of the High Court, and your Honour Justice Gummow on your appointment to the Bench.

Your Honours have now been present at ceremonial sittings in, I think, South Australia, Victoria, Queensland and Canberra, and doubtless countless Bar dinners and that kind, so it would not be fair for me to run through a recital of your careers from law school through to the present time. 

Nevertheless, for the benefit of others in attendance, your Honour the Chief Justice, I should mention, is the tenth Chief Justice of the High Court, having been appointed while a member of the Federal Court and having practised at the Bar in Queensland before going to the Bench.

Your Honour the Chief Justice’s time on the High Court has corresponded with the final stage of what I might call the Australianisation of common law and equity.  When I was at Law School or in early practice, one would use English cases to tag areas of law, such as High Trees estoppel or Hedley Byrne & Heller for areas of tort.  Nowadays, I think young practitioners would wonder what I was talking about if I mentioned High Trees estoppel and would doubtless refer to judgments of your Honour or Waltons Stores v Maher as the tag appropriate to that area of law.  I recall the beginning of this phase very well because when I came to the Bar in 1986 I bought my Authorised Reports from Bob French, later Mr Justice French, and as the transaction closed the reports came out revealing that Cook v Cook had been handed down and your Honour’s judgment and your brethren decided that judicial statements to the effect that decisions of the English Court of Appeal generally to be followed by Australian Courts should no longer be considered as binding - thereby diminishing my investment in the Authorised Reports which I had just purchased and which still are on my shelves.

In 1975, your Honour the Chief Justice, while at the Queensland Bar, accepted the invitation of our Summer School Committee to act as leader.  Other people who have been leader at the Summer School include Sir Ninian Stephen, then Stephen QC, Toohey QC, Morling QC, Meagher QC and Pincus QC.  We in the West like to think that we contributed to your Honour’s appointment as Chief Justice.  We feel this, not only because your Honour but these other practitioners, of course, went on to judicial office in superior courts. 

I have read carefully March v Stramare again, and the Chamberlain decision about circumstantial evidence, but nevertheless we feel that we caused, or materially contributed to, your Honour’s appointment to the Bench and therefore to gain the opportunity to become Chief Justice, your present appointment.

I also discovered, when looking through Brief, our local professional magazine, something that your Honour would not know about, and something that I had quite forgotten, and that was that in 1975 when your Honour was here at the Summer School, I had prepared a line drawing of your Honour, a cartoon, which was published in Brief, and I have handed a copy of this to your associate for your amusement or otherwise after the Court rises today.

Your Honour Justice Gummow comes to the Bench from the Federal Court, having practised in New South Wales before that.  Your Honour also has an early connection with Western Australia because while you were a solicitor with Allen Allen & Hemsley, I think in 1970, your Honour worked on what was then, I think, the biggest resource project in Australia’s history, that is the Robe River Project. 

The legal work in this project attracted many well‑known names.  I am told that the then Keith Aiken QC gave advice, and Kim Santow, now Mr Justice Santow of the New South Wales Supreme Court was involved in giving advice to various parties in the project.  Maybe I should call in aid March v Stramare and Chamberlains’s Case again, and wax parochial to claim that this early connection with this Western Australian project materially contributed to your Honour’s appointment to the Bench also.

Rory Argyle, of Parker & Parker, tells me that there were a number of high‑powered American lawyers who worked on this project, and Rory still remembers that the American lawyers remarked about the clear thinking and self‑assurance and certainty of view expressed by one of the young lawyers in the team who was then perhaps only thirty or in late twenties.  This was, of course, your Honour and the Americans had detected qualities which, of course, are undoubtedly relevant to your Honour’s recent appointment to the Bench.

Unfortunately, I do not have a line drawing of your Honour, but in quiet moments on future appearances before the High Court, I may be able to discretely remedy that deficiency.  I hasten to add this is not a threat or a promise.

I close by saying that the Western Australian Bar Association congratulates you both on your appointment to new office.  The Association hopes that each of you will enjoy your time in office and enjoy this annual visit of the High Court to Western Australia.  May it please the Court.

BRENNAN CJ:   Thank you, Mr Pullin.

Ms Eckert, Mr Pullin, Honourable the Acting Chief Justice, Judges of the Federal Court and Supreme Court and the Masters, ladies and gentlemen.

Your presence here this morning is of course a considerable personal satisfaction, not least, perhaps, because I gather we have been privileged to have Picasso QC address us.  It is one of the advantages of professional life to be associated with colleagues who command respect while they offer friendship. 

But there is a greater significance in your presence here today.  It is an indication of the integrated system of Australian Courts on which the peace and freedom of our society ultimately depend.

Perhaps we have become so accustomed to the administration of justice by the Courts of this country, both Federal and State at all levels, that we forget that their daily work maintains for each of us that freedom under the law which is the birthright of all Australians and which is denied to so many peoples in other parts of the globe.

The annual visit of the High Court to Western Australia serves not only to provide an opportunity for the judges of the several Courts to meet and an opportunity for the Judges of this Court to meet and to be met by members of the Western Australian profession; it is also a function which illustrates the High Court’s place in the judicial hierarchy of the State. The appellate jurisdiction invested by the Constitution in this Court ensures that this Court entertains appeals, both from the State and from the Federal judiciary; thereby it is ensured that the body of Australian law, whether Federal or State, is integrated so that no set of circumstances nor any relationship which might call for a judicial determination of rights or liabilities will be subject to divergent laws administered in divergent systems. The constitutional disposition has been reinforced by cross‑vesting legislation and the presence on the Bench today of the several Justices and the Courts they represent is indicative of the integration of the law and of their jurisdictions.

By practising before these 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 is an application of the law to serve the needs of the client; it assures to that 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.  I should hope that however open it may be, as it should be, to public examination, the members of the profession do not lose their own sense of social worth and the worth of the work that they do.  In the ultimate result, the peace of this nation depends on it.

I am grateful for the welcome that you have extended.  I am particularly grateful for the support that the Western Australian profession has, over 92 years of the Court sitting here, extended to this Court.  That relationship is one of continuing importance.  It is one which I hope will continue to be a source of satisfaction to the Western Australian profession, as it is a source of strength to this Court on its annual visitations.  I thank you for your greeting.

GUMMOW J:   Madam President of the Law Society, Mr President of the Bar Association, judicial colleagues, members of the legal profession, ladies and gentlemen.

I am very grateful for the kind words which have been spoken this morning.  Since taking up office on this Court I have been the object of various observations at similar occasions in other capital cities.  Perth is the last, but obviously, far from the least significant of the mainland centres in which the Court has sat since last April.  The welcome this morning stands out, not only for the generosity of what has been said, but for its accuracy - give or take a little. 

What undoubtedly is true, in my view, is that the profession in this State throughout the whole of my time in the law has been open and welcoming to new ideas and techniques as they have appeared in any part of the country.  This has kept the profession equipped to assist in the enormous development of this State over the last 40 years. 

I am particularly gratified that Acting Chief Justice Kennedy has been able to find time to be here.  As equitable in demeanour and temperament as in his depth of learning, his judgments - and I seek to speak here particularly as a former law teacher - continue to offer guidance and instruction across the country.

As Mr Pullin has mentioned, during my time as a solicitor, both as counsel and as a member of the Bench of the Federal Court, I grew to know and work with a number of the members of the profession of this State.  Some, indeed, are former students who have had the nous to move over, settle and practise in Western Australia.  I look forward to the continuance and extension of that connection in the time ahead.

BRENNAN CJ:   We thank you for your attendance here this morning.

AT 9.49 AM THE COURT ADJOURNED