Ceremonial - Crennan J - Welcome Melbourne

[2005] HCATrans 1040

[2005] HCATrans 1040

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 JUSTICE SUSAN MAREE CRENNAN

AT

MELBOURNE

ON

FRIDAY, 16 DECEMBER 2005, AT 9.16 AM

CRENNAN J

Speakers:

Ms Kate McMillan, SC, Chairman, The Victorian Bar

Ms Victoria Strong, President, Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

CRENNAN J:   Ms McMillan.

MS McMILLAN:   May it please the Court.  On behalf of the Victorian Bar it is my very great privilege to welcome your Honour on this occasion of your first sitting in Melbourne as a member of this Court.  From the time of the announcement of your appointment to the High Court all that could be said about your Honour’s considerable professional career and talents has been said, both in the media following the announcement of your appointment and at your welcomes in Canberra and in New South Wales.

The ceremonial sitting of the Full Court in Canberra at which your Honour presented your commission was a memorable occasion with a large contingent of Victorians present:  the heads of all Victorian courts, a total of 25 judges and magistrates from Victoria, 37 Victorian senior counsel, seven Victorian junior counsel and many Victorian solicitors, including Ms Strong, President of the Law Institute of Victoria, representing the solicitors of Victoria.

It was no surprise to us in Victoria that your appointment to this Court received acclamation from all quarters.  The number of people present at your swearing‑in was, I believe, the largest ever in the history of the High Court.  It was, of course, a recognition of the high regard, esteem and affection in which your Honour is held by the legal profession in this State and elsewhere. 

At your welcome on the first occasion of your Honour sitting in Sydney as a member of this Court much was made by my Sydney counterpart of your Honour’s time at the New South Wales Bar in the late 1970s.  It is natural that many want to claim and adopt you.  Indeed, at the welcome in Canberra even the Irish Bar was spreading its tentacles and seeking to bring you within their grasp and bask in your glory.  We at the Victorian Bar, unashamedly and with pride, claim you as one of our own.  In your 24 years of practice at the Victorian Bar your Honour developed and honed your reputation as a leader of this Bar.  You developed an extraordinarily wide practice.  You did everything and excelled in everything. 

Your Honour practised in all jurisdictions in Australia.  You also practised as an Australian barrister in the United Kingdom in London, Gloucester, Southampton and Bradford.  In the United States in New York; Wilmington, Delaware; Washington, DC;  Dallas, Texas; Miami, Florida and Chicago, Illinois.  You have also worked as an Australian barrister in Lausanne in Switzerland and you were admitted as an ordinary member to the King’s Inns in Dublin.

One anomaly in your career in Victoria was not caused by your Honour.  Curiously, you were required by the then Victorian Bar Council to read for a further short period, notwithstanding that you had completed your pupillage in New South Wales and had practised there for at least two years.  Your master at the Victorian Bar was Fred Davey, now a judge of the County Court.  Judge Davey not only willingly took you under his wing but no doubt his mentorship in non‑legal matters would have stood your Honour in good stead over the years.  I refer, of course, to his Honour’s uncanny ability in the share market.

You served on the Bar Council for seven years.  You were elected Chairman in 1993.  Under your Honour’s leadership the Bar Council introduced significant reforms, including limited direct access and co‑advocacy.  These reforms were controversial and in some ways remain so today.  Your Honour led the way in addressing the issue of access to justice in a constructive manner.  You thought of a scheme for pro bono legal assistance in civil cases in circumstances where Legal Aid funds were constrained.  The Law Institute immediately supported your Honour’s idea and it joined the Bar in support of the project.  The government was approached for, and supplied, modest seed capital for the venture.  The scheme is now known as Law Aid and it has become enormously successful and continues to thrive today.

Throughout your time at the Victorian Bar and following your appointment to the Bench your Honour has provided much support to the Bar.  The Victorian Bar is grateful for that support and for your continuing support of the Bar in its activities.  Ironically, as your Honour has increased in eminence in the law, the images of you and your trappings have become more modest.  As a judge of the Federal Court you wore a regal dash of maroon in your judge’s robes.  Now, as a Justice of this Court, there is an almost monastic simplicity of this Court’s plain black robe. 

Whether you wear a regal dash of maroon or the plain black robe, your Honour brings a certain savoir faire and flair, not to mention your more than 25 years experience as a scholar, barrister and judge, to the job ahead of you.  What is clear to us is that you are perfect for this job and the Victorian Bar has every confidence that you will acquit yourself in your new role with skill, mastery and commitment.  We welcome you home.  We hope to keep seeing you and to see more of you.  On behalf of the Victorian Bar I wish your Honour a rewarding and satisfying career as a Justice of this Court.  May it please the Court.

CRENNAN J:   Thank you, Ms McMillan.  Ms Strong.

MS STRONG:   May it please the Court.  I appear on behalf of Victoria’s solicitors to congratulate your Honour on your appointment and to warmly welcome you on this, your first sitting in Melbourne as a member of this Court.  Your Honour’s career in the law has been underpinned with a strong current of hard work and dedication and at every point is punctuated with success. 

Admitted to practice in 1979, your Honour benefited from the tutelage of the present Commonwealth Solicitor‑General, Dr David Bennett, QC, with whom you read, and later with Fred Davey, now a judge of the County Court in Victoria.  Upon returning to Victoria your Honour rapidly earned a reputation as a formidable advocate and you took silk in 1989. 

Your Honour’s appointment has been greatly lauded, both in legal circles and throughout the broader community.  It was both an honour and a privilege to attend the ceremonial sitting of the Full Court in Canberra to witness your Honour’s swearing‑in.  The tributes paid to your Honour on that occasion and the numerous newspaper articles detailing your career achievements and professional skills have left no stone unturned, canvassing everything from your incisiveness, acute legal mind, fortitude and depth of expertise, through to your propensity to laugh.  In one report Professor Greg Craven said carefully, it is not like your Honour brays like a horse but when she laughs, she really laughs, while your Honour’s stellar rise or flight to the top of the law and razor sharp intellect were likened in The Age newspaper to the shillelagh or Irish cudgel that once took pride of place in your chambers. 

Among your Honour’s many career milestones was your election in 1993 as Chair of the Victorian Bar Council.  Your time as Chairman occurred during what was a major shake up of the State’s legal profession under the then Victorian Attorney‑General, Jan Wade, in 1993-1994.  Your challenging year as Chairman was rewarded and acknowledged at the Bar Christmas party whereupon you were graciously presented with a large bottle of the anti‑greying lotion, Grecian 2000, and a card which read, “Dear Chairman, We know it has been a tough year.  Try this.”

Your Honour has lent your expertise and intellect whilst serving on various boards, including those of the Human Rights and Equal Opportunity Commission and the Victorian Legal Aid Commission.  Throughout your career you have been committed to the important issues of access to justice.  You championed a scholarship scheme for indigenous people through your work with Melbourne University’s Law Foundation.  You were instrumental in establishing a formal pro bono scheme for Victoria during your term as Chairman of the Victorian Bar and part of your Honour’s legacy as President of the Australian Bar Association was implementing annual trips to Bangladesh by members of the Australian Bar to teach advocacy skills to local practitioners.

Appointed to the Federal Court two years ago, your Honour already has experience of the rigours of judicial office.  Your appointment to the High Court is a step towards balancing the dominance of Sydneysiders.  Your Honour is a worthy appointment to this Court and you will no doubt bring a different perspective to the Bench, that of a woman, mother, grandmother and active member of various Melbourne communities.

I do note with some intrigue that your Honour was rather a late bloomer in respect of learning to drive a car.  Having recently had the privilege of welcoming Victoria Bennett to the Family Court of Australia, I note that there seems to be an interesting parallel in the number of female members of the judiciary who learnt to drive later in life, which raises the question, is this part of the key to becoming a judge later on?

Your Honour’s appointment as the forty‑fifth Judge of the High Court Bench occurs at a crucial time:  when Australia is witnessing broad‑ranging law reform and when our courts and the administration of justice and protection of rights and liberties are very firmly in the public gaze.  It is a challenging time. 

On behalf of Victoria’s solicitors may I again congratulate you on your appointment and wish you a long and rewarding service of this Court.  May it please the Court.

CRENNAN J:   Thank you, Ms Strong.  Ms McMillan and Ms Strong, I am very grateful for your generous remarks this morning and the expressions of goodwill from those you represent.  I thank all present for their attendance and particularly members of family who have made an effort to be here. 

Although my legal career commenced in New South Wales, I spent many happy years in practice in Victoria and I should record my thanks to Fred Davey, now a judge of the County Court, who agreed to take me, sight unseen, as a reader for a short period in 1980.  In those days the Victorian Bar was, and still is to a large extent, organised with a chambers system of which the Victorian Bar is justly proud.  Anyone can take up chambers without any significant financial investment.  Barristers’ Chambers Ltd provides a great service to the Victorian Bar, clearly evidenced by the diverse backgrounds of leading Victorian barristers.

As a junior it was my privilege to be led by leaders of the Victorian Bar of the day.  Something I mentioned at my swearing‑in, which took place in Canberra on 8 November last, bears repeating in this, my home State.  Sixteen years of my practice at the Victorian Bar was spent on the 17th floor of Owen Dixon West Chambers.  It was home to two great leaders of the Victorian Bar in the common law mould:  John Barnard, QC and John Hedigan, QC, the latter now a retired judge of the Supreme Court of Victoria.  On the floor above was a great exemplar of the commercial and equity practitioners, S.E.K. Hulme, QC.  In the building next door there were two of the great exponents of general practice with wide experience of juries:  the late Neil McPhee, QC and John Winneke, QC, the recently retired first President of the Court of Appeal of Victoria.

There are others I could have named, some of whom are here today, especially from the 17th floor, but for the fact they remain in practice or are serving judges.  As barristers, those mentioned all played a vital role in the administration of justice.  They inherited and were masters of the high techniques of the common law and they passed these on.  I should also mention Hartog Berkeley, QC, with whom I worked when he was Solicitor‑General for the State of Victoria.  He was then also a member of the 17th floor.  His most enduring trait was the application of ordinary wisdom to legal problems, whether simple or complex. 

The honourable Xavier Connor, AO, former Bar Chairman and a retired judge of the Federal Court and Supreme Court of the Australian Capital Territory, was also a sometime member of the 17th floor during a long period when he assisted the Victorian Bar in elucidating to regulators the rationales for many of the Bar’s practices.  The great example he gave lay in his unfailing ability to see all sides of a question and to assess arguments with which he did not necessarily agree with scrupulous fairness. 

I acknowledge my debts to all my juniors from the Victorian Bar since I can comfortably say they all taught me something and it has been a particular pleasure to watch some of them take silk, including those who recently received that honour. 

The period from 3 February 2004 until 31 October last, which I spent as a judge of the Federal Court, has left me with an unforgettable impression of the differing claims of trial work and appellate work.  The Federal Court has maintained its distinguished reputation by the hard work and high calibre of its judges who now deal with a much expanded type and volume of work.  My relationships with all the Federal Court judges were very friendly and constructive.  I learnt a great deal from Chief Justice Michael Black and from my fellow judges, particularly those of the Victorian Registry, about the tasks of judgment writing and the efficient management of a judge’s workload.

Victoria has long and deep connections with the High Court and it is a great privilege to be the thirteenth Victorian Justice appointed to the Court.  The High Court opened at 11.30 am on 6 October 1903, sitting in the Banco Court of the Supreme Court in William Street, and Melbourne was the principal seat of the Court until 1973.  From 1928 until 1980 the Court sat at 450 Little Bourke Street and many cases were heard there which shaped the nation on its sovereign course as a Federation. 

Events of local significance involving the common law which occurred there are also worth mentioning.  On 31 October 1962 the then Chief Justice of the High Court, Sir Owen Dixon, asserted the authority of the Court to hear an application touching the liberty of the subject when the authorities of the day seemed impatient to execute one Robert Tait.  Tait’s only chance of avoiding execution lay in the new Mental Health Act, the provisions of which were only to become effective the next day, which was also the day set for his execution.  The Chief Justice said:

We are prepared to grant an adjournment of these applications without giving any consideration to or expressing any opinion as to the grounds upon which they are to be based, but entirely so that the authority of this Court may be maintained –

For good measure the Chief Secretary and the Sheriff and any deputies were restrained from carrying out the execution the next day.  That assertion of the Court’s authority and the primacy of the rule of law saved Tait from the gallows because the application was then heard on its merits and he died some 23 years later.

As a reader at the Victorian Bar I recall being told by my then clerk to go to 450 Little Bourke Street to watch the legendary cross‑examiner, Neil McPhee, QC, in the DOGS Case – for those not familiar with the acronym, the Defence of Government Schools Case.  The story of his one question too many has become part of the folklore of the Victorian Bar.  It illustrates the dictum that no question should be asked unless the cross‑examiner is reasonably confident of the answer which will be given.  McPhee, QC was cross‑examining a nun, a member of the Sisters of Mercy.  He had managed to get her to state that she prayed every day.  He then asked, “Sister, what do you pray for?”  She replied, “We pray for many different things, Mr McPhee.”  “What sort of different things?” he pressed.  “Well,” she said, “this morning, for example, we prayed for you, Mr McPhee.”

No account of practice in Victoria should omit mention of the traditional strengths of the Supreme Court of Victoria.  Many judges could be named but I confine myself to single examples of a trial judge and an appellate judge to illustrate my point.  Mr Justice Crockett and Mr Justice Brooking represented a particular Victorian style of jurist, moving seamlessly between civil and criminal law and between common law and equity, all the while delivering prompt judgments, distinguished as much by clarity as they were by legal scholarship.

I shall not repeat what I have said on previous occasions about the work of this Court and its role in the life of the nation.  I will say that the duties which will weigh on me will be made easier by the co‑operation and assistance of both branches of the legal profession in Victoria.  I thank you all for your attendance and support.

Adjourn the Court, which will resume sitting in a few minutes.

AT 9.34 AM THE COURT ADJOURNED