Ceremonial - Callinan J - Farewell Sydney

[2007] HCATrans 307

[2007] HCATrans 307

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

SPECIAL SITTING

FAREWELL TO

THE HONOURABLE JUSTICE IAN CALLINAN, AC

AT

SYDNEY

ON

FRIDAY, 15 JUNE 2007, AT 9.36 AM

GLEESON CJ:   Mr Solicitor.

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia :   May it please the Court.  As everyone here knows, this is to be your Honour Justice Callinan’s final special leave appearance before retirement in September and I would like to say a few words on behalf of the Attorney-General of the Commonwealth to mark the occasion.

His Honour Justice Hayne is claimed by New South Wales, although his Honour was born in Queensland and spent his childhood in Victoria, on the basis that he must have passed through New South Wales to get from one to the other, but New South Wales claims your Honour on a more solid basis because your Honour was born in the town of Casino.  Your Honour also has served as a Visiting Professor of Law at Newcastle University.

You were appointed to this Court in 1998 after a distinguished career as a barrister with a national practice, particularly in criminal law and defamation.  You were President of the Queensland Bar, the Australian Bar Association.  You have acted for a wide range of clients, including Christopher Skase[1] and Alan Bond.  You have taken part in a wide range of community activities.  Apart from your activities in legal organisations you were Chairman of the Queensland Totalisator Board, a director of the Incorporated Council of Law Reporting, a lecturer in legal ethics at the University of Queensland, a director of a number of companies, including Queensland Coal Resources Limited and Santos Limited, Chairman of the Queensland Barristers’ Board, Chairman of Trustees of the Queensland Art Gallery and a director of the Australian Broadcasting Corporation.  This wide range of community activities has helped your Honour understand the many aspects of life which come before Justices of this Court.

[1] Justice Callinan did not in fact act for Christopher Skase, but rather for the Australian Government.  He was “introduced” to the Spanish Court in Majorca in 1994 and appeared robed at the Bar table with the Chief Prosecutor for Spain in the Skase extradition proceedings in which an order for Skase’s extradition (subsequently reversed on appeal) was made.

When you took your place on the Bench it had been over 22 years since a barrister had been appointed directly to the Court from private practice.  Despite that, no one could say it took your Honour long to find your voice.  Your dissenting judgment in Patrick Stevedores, written like many other judgments in that case under great constraints of time pressure, was an illustration of this.

Your remarkable energy and incisiveness are evident in scores of other judgments covering areas as diverse as the provisions of the Constitution and the finer points of criminal procedure. Your courtesy to counsel in the High Court was very much appreciated by all who appeared before you.

But what makes your Honour’s career in this Court even more remarkable is that being at the High Court was only your day job.  You found time to write several novels and plays in your spare time.  The main ones are The Lawyer and the Libertine - and I note that it is significant that the title indicates that the lawyer and the libertine were different people – The Coroner’s Conscience – I suppose at least he had one – The Missing Masterpiece, which I am glad to say was found; Appointment at Amalfi, which your Honour will now have time to keep and After the Monsoon, which is perhaps a way of describing your Honour’s post‑judicial life.

Possible future titles are Murder in the Lighthouse, a literary work built around the Commonwealth’s power under section 51(vii) of the Constitution and The Dissenting Judgment, but that might involve your Honour making a work choice.

The legal scandal magazine, Justinian, has had a section entitled The Callinan Diaries for some time.  I had a look at it this morning and I am sorry to advise that there is nothing in it which I could possibly use at a hearing such as this, but I commend it to those who are interested.

Your Honour has maintained your love of history, the arts and sport, especially cricket, rugby and tennis, and it is said that you have battled the Chief Justice on the tennis court for hours, just as Roger Federer has battled Rafael Nadal, but I will not press the comparison any further.

On behalf of the Attorney-General of the Commonwealth, I thank you for your service to the people of Australia and wish you all the best on your retirement.  Your Honour will be missed.

GLEESON CJ:   Thank you, Mr Solicitor.  Mr Slattery.

MR M.J. SLATTERY, QC:   If your Honour pleases.  Today marks the last occasion that your Honour will sit in Sydney as a member of the High Court.  On 13 February 1988 your Honour was first welcomed to Sydney by Ian Barker, QC, after your appointment to the Court.  It is now my very great honour to briefly bid you farewell on behalf of the New South Wales Bar.

Although today is only 15 June, this ceremony reminds us that section 72 of the Constitution has already started to ever so gently tap your Honour on the shoulder. Come late August her voice will be unmistakably firm. For a judge with your Honour’s creative but disciplined vigour both on and off the Bench your enforced constitutional retirement has come far too quickly for us here in New South Wales as it has for the national profession, but on 1 September this year there will be a shift in plot for your Honour that may be worthy of a novel. Perhaps it soon will be.

Both as a barrister and as a Judge your Honour has always been an iconic figure for the New South Wales and the Australian Bars.  You are the only Judge of the High Court of the present generation to be appointed direct to the Court from the private Bar and you were the first ever from the Queensland Bar, but at the time of your appointment to this Court you were one of but a handful of Australian barristers who nearly 100 years after Federation had a truly national practice.  You were as at home right here before a Sydney civil jury in defamation cases such as Ettingshausen and Makim as you were in defending Alan Bond in a criminal trial in Perth or arguing a point of commercial law for the Queensland Canegrowers’ Council.  Cases from every State of Australia took you to the High Court as Counsel where you appeared in some of the landmark legal and social disputes of their era, such as Gould v Vaggelas and Mudginberri Station.

It was fitting that with such a practice you should serve with distinction as President of the Australian Bar Association in 1984 and 1985.  Your Honour’s plain speaking style of persuasion using successive statements of profound commonsense appealed to the Common Law Bar and to juries alike, but the nation’s Equity Bar made a special claim to you after one Queensland junior artfully described your cross‑examination technique as “death by a thousand whispers”.

On the Bench your judgments have enlarged this earlier technique, they present deft legal analysis within what one often feels, to the reader, like a personal conversation with you.  Your Honour has a special place in the affection of the New South Wales Bar.  You joined it in 1985 and you informally shared chambers here from the mid‑1980s, which you used frequently.

As a judge you have conspicuously supported the collegiate and intellectual life of the New South Wales Bar as you have the Bars of the other States.  Public commentators often use a loose form of “State of Origin” language to describe members of the High Court.  With your Honour such language risks being highly misleading.  In this city where advocates named Jackson, Gzell, Douglas and Sheahan have long flourished, surprisingly, even to call your Honour a Queenslander celebrates something very local, something very close to us, indeed something very Sydney.

This is not the occasion to summarise the breadth of your Honour’s work on the Court, but one of the special qualities much appreciated by the Bar which your Honour has brought to the Court is an intimate understanding of the first instance courtroom dynamic and the importance of the facts and true issues at trial.

You also have a keen appreciation of the difficult role of counsel.  This is well captured in your judgment in D’Orta where, in dismissing an argument that allegations of undue pressure by counsel could give rise to a cause of action, your Honour said this:

the applicant asserts that “undue pressure” was imposed by the respondents.  The Court of Appeal was correct in holding that this could not give rise to a cause of action.  In any event, the particulars indicate that the allegation is effectively of emphatic, perhaps even very emphatic, advice.

Then your Honour said:

As to that, it may simply be said that advice that is not clear is advice that may not be worth having.

To your Honour, strict legal analysis and reasoning by analogy are not quite enough.  You have enriched the Commonwealth Law Reports with imagery that also portrays a view of the law as literature.  We have all our favourite examples of this, but one of mine is in your Honour’s dissenting judgment in WorkChoices where your Honour described the legal effect to the contrary view as one likely to turn State Parliaments into what your Honour described as mere debating societies.

Your Honour’s life is a permanent rebuke to any ill‑informed critics who might venture to suggest that this Court is either out of touch with contemporary Australia or that judges and sportsmen are mutually exclusive classes.  Apart form your writing, which is well known, whilst on the Bench your Honour has taken a number of appointments that continue to reflect the richness of your interests which you deploy for the benefit of all Australians.

One of these, for example, was your appointment in 2000 as the Chairman of the Australian Defence Force Academy.  Those tragics who believe that cricket is an allegory for life need only look to your Honour as a vivid support for the correctness of their belief.  Your Honour has immense energy in every part of your life.  In March of this year the New South Wales Bar played its annual cricket match against the Queensland Bar. Your Honour played for Queensland and, as a leg spinner, you simply destroyed the New South Wales Bar’s middle order batsmen taking 4 for 39 off 8 overs.

Only one of your former associates playing for New South Wales survived this onslaught.  He explained his success because he had learned to pick your Honour’s “wrong ’un” when between hearings you used to bowl to him in the corridors of the court.  At the end of the day the only undefeated Queensland batsman standing at the crease was your Honour.  That day you did what you have often been called upon to do in this Court, you displayed a careful resistance to everything served up to you by the New South Wales Bar.

A biographical note in the Australian Bar Review by Gallagher, QC, on your Honour’s appointment also gives a fitting account of the admiration and affection for your Honour as a Judge felt by the Bar of this State.  He said “His achievements are intimidating to most aspiring lawyers, yet throughout his life his humility made even greater those successes”.

Your Honour, the New South Wales Bar salutes your achievement and congratulates your Honour on your service to the people of Australia as a Judge of this Court and wishes you well in your retirement.  May it please the Court.

GLEESON CJ:   Thank you, Mr Slattery.  Mr President of the Law Society.

MR G. DUNLEAVY:   May it please the Court.  It is a pleasure and a privilege to appear today on behalf of the Solicitors of New South Wales and make some valedictory remarks on your Honour’s impending retirement after what can only be described as an illustrious and an important career in the law.

Much has already been written and said about your Honour’s extraordinary achievements and your Honour’s extraordinary contributions to the legal profession of Australia.  Indeed, it has to be said that whilst only the best of the legal profession are appointed to the Bench of this Court, not many can boast such a stellar rise to the High Court as your Honour’s.

To add various other titles to this list such as novelist, playwright, sportsman, professor, chairman and patron of the arts is an indication of another extraordinary talent that your Honour possesses, the ability to maintain a relationship with a very supporting and loving wife.

Despite all that has been written and said about your Honour’s achievements, I have to admit that the task of penning a few notes in preparation for today has proved to be rather difficult.  Other speakers before me have already spoken at length about your background, skills and intellect, so I am not going to attempt to restate what has already been said before, but it is accurate to say that your Honour has worn many hats over the years and it is perhaps your success at achieving an all‑roundedness in life that makes you such a beacon to lawyers and, in particular, to younger lawyers in our profession.

I would like to focus today, your Honour, on perhaps something that has not been talked about as widely and that has been the legacy, or has been a legacy that you have left with the legal profession through your dealings behind the scenes, or more specifically the role that your Honour has played in helping shape many of the great legal minds that have had the privilege of working with you.

Many young law students spend much of their academic life in pursuit of university accolades.  In asking one of your fellow university law students, now a Queensland silk, what enabled your Honour to achieve such success beyond the study of law, that silk replied that it has been your Honour’s zest for life, your experience and your focus on what is happening at the coalface of the law that has marked you apart from so many others who graduated in the same year.

He went on to say that your Honour tried to instil this very ethos in many young solicitors with whom you worked and lectured.  According to this person, when it comes to young aspiring advocates your Honour has always gone out of your way to ensure as much knowledge and support has been imparted as possible.  This is attested to by your contribution as an Honorary Lecturer at the University of Queensland and as a Visiting Professor of the University of Newcastle.

In preparation for today, my office attempted to track down a few solicitors who had briefed you and you had mentored throughout your Honour’s career.  When asked about the legacy that your Honour will leave with the profession, one of those solicitors had cause to remark on his experience with you in relation to a high profile defamation case of the 1990s.  That solicitor described your Honour as, “He is intellectually a very broad person, a real renaissance man and difficult to pigeonhole.  At the time I was a junior lawyer briefing him and he had 25 years of experience on me.  He had an incredible patience with junior lawyers and a real personal interest in the development of these people.  He was approachable, open, friendly, and just as he was fearsome to his opponents, he was a very generous teacher.”

Your Honour, the support and respect you have achieved in the legal profession is evidenced by your achievements.  What is also evident is that you have left an indelible mark on those privileged enough to cross your path.  As the Court pleases.

GLEESON CJ:   Thank you.  Justice Callinan.

CALLINAN J:   Thank you, Mr Solicitor, Mr Slattery and Mr Dunleavy for your kind, but excessively generous remarks.

I was very touched when I was told that people were going to say something about me this morning.  I was also reminded, as I heard you speak, of what Sir Robert Megarry said when he decided the case of In re Flynn.  He had to decide the domicile of Errol Flynn at the time of his death and he was considering the extent to which he could have regard to Errol Flynn’s autobiography, My Wicked, Wicked Ways and he said of it, in the end, that he was prepared to give it some credence, but that just as in inscriptions on a tombstone a man writing an autobiography was not on his oath and I do not think any of you who have spoken about me this morning have been on your oath.  I appreciate the remarks, nonetheless.

It is 22 years and four months since Mr A.M. Gleeson, QC moved my admission to the Bar of New South Wales.  I have remained a member of that Bar ever since and kept up my membership of the association throughout my time on the Court.  During the time that I spent doing cases in New South Wales I had the good fortune to appear before some of the ablest judges and against some of the best counsel in the country.  I acknowledge, with gratitude, the presence of several of those here today.

I might say, however, that my first encounter with the Sydney Bar was not in the courts but was on the cricket field and that, too, was just as confronting as my debut in the courts of this State.  You might well say that it is an indulgence for me to talk about that, but I have noticed, now that everybody is sure that I am going, and I am going because the people of Australia in the second most popular referendum ever made sure of that, I find that I am allowed the odd indulgence or two.

I have had the good fortune to make many friends at the Bar of this State and a number of solicitors who were prepared to take the chance on a northerner.  It was a great privilege to be appointed to this Court, but I can assure you that it was with mixed feelings that I left the Bar and came to the judiciary.  In a sense, however, I like to think that I never left the Bar.

Now is not the time to dwell upon it, but I would not like to leave it unsaid that I believe that the work of an industrious and competent Bar, instructed by able solicitors, is not just important but is in fact indispensable to the efficient functioning of the courts.  This was an impression that I had when I was appointed.  Now that I am finishing I am certain of it.

The work of the Court is onerous.  That most of it has to be undertaken in Canberra away from the places in which we have lived and practised can itself be burdensome.  Reference to the late Errol Flynn reminds me that being a High Court Judge is not a stellar life.  I do not know whether therefore one can truthfully say that the life of the Court is enjoyable, but the variety and complexity of the work, the opportunities that it provides to mould the law, if only incrementally, the chance to play a role, albeit a minor one, in the affairs of the nation, the stimulus that all of these offer and the honour of the appointment more than make up for any of the disadvantages.

I am very pleased to have served and, so far as honour is concerned, you have all done me a great deal of it in coming here and speaking as you have and I thank you for it.

AT 9.57 AM THE COURT ADJOURNED