Ceremonial - Farewell Gummow J - Melbourne [2012] HCATrans 203

[2012] HCATrans 203

[2012] HCATrans 203

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 WILLIAM GUMMOW, AC

AT

MELBOURNE

ON

FRIDAY, 17 AUGUST 2012, AT 9.18 AM

GUMMOW J:   Ms Sloss.

MS M. SLOSS, SC:   May it please the Court.  I appear on behalf of the Victorian Bar.  I understand that this is the last occasion on which your Honour Justice Gummow will be sitting in Melbourne and the Victorian profession wishes to mark that occasion.  Accordingly, I will address my remarks this morning to Justice Gummow.

Seventeen years ago, on 21 April 1995, at your Honour’s swearing‑in and welcome, Justice Crennan, in her role as President of the Australian Bar Association, addressed the Court.  As Chairman of the Victorian Bar, it is my very great honour and pleasure to do so today.

At your welcome, Justice Crennan reflected on the variety of your Honour’s experience in the law – as a scholar, teacher, solicitor, barrister, writer of leading texts and judge of the Federal Court – that grounded the universal applause with which your appointment to this Court had been received.

In your remarks, your Honour reflected on the fundamental mystery of the law – how things must change if they are to remain the same.  You referred to Sir Owen Dixon’s statement to like effect.  In his address on first presiding as Chief Justice here in Melbourne, in May 1952, Sir Owen said:  “I believe that the court has always administered the law as a living instrument and not as an abstract study”.

On the same theme, your Honour then mentioned the achievements of Sir Frank Kitto and Sir Victor Windeyer, observing that:  “They appeared seamlessly to connect what they were deciding – with what had gone before – whilst showing the way to the future”.

Much more recently, in 1999, this fundamental concept was also the theme of your Honour’s lectures at Oxford University in the Clarendon Law Lectures series.

The Clarendon Law Lectures series was established by the late Peter Birks, Regius Professor of Civil Law at Oxford.  As a Clarendon lecturer, your Honour joined a glittering array of leading intellectuals – mostly holding university chairs at places like Oxford, Cambridge, Yale and Chicago.

Your three lectures, now published by Oxford University Press, were entitled:  Change and Continuity:  Statute, Equity and Federalism.

In reflecting on your Honour’s significant contribution to the Court and its jurisprudence, I am drawn to what was said of another Justice at the ceremonial sitting to mark his retirement.  I quote:

I believe, Sir, that when some student ultimately essays the task of examining your . . . work, your . . . record, he will find that you, perhaps more than any other man, have woven the stuff of legal history into the fabric of modern statute and modern decision.

That is what the Prime Minister, Sir Robert Menzies, said at the sitting in Melbourne on the occasion of the retirement of Sir Owen Dixon.

Dixon is, of course, without peer in his 35 years on the Court – and in his influence extending throughout the common law world.

There is, however, in Menzies’ description of Dixon having “woven the stuff of legal history into the fabric of modern statute and modern decision” a quality which your Honour has also seen in the achievements of Sir Frank Kitto and Sir Victor Windeyer – and in which, may I say, your Honour shares.

The late John Lehane, when writing of your many leading judgments that you wrote and participated in, observed:

They are marked both by a close attention to statutory language and context, and by a careful examination of the evolution of principle and doctrine.

Your Honour’s command of the law and its historical foundations – and of the cases, down to the detail of the volume in the Commonwealth Law Reports in which they are to be found – is encyclopaedic.

On the Bench, your Honour’s dialogue with counsel has been known to stop even the most eminent and experienced counsel in their tracks – with a question, something like, “Mr or Ms So and So, you haven’t mentioned Chapter 1 of Quia Emptores”.

Such seemingly arcane questions have, on occasion, changed the course of argument and decision in the case.

Your Honour has served the law, the profession and the people of Australia with distinction since your admission to practice in 1966 – indeed, as you gently observed in your Federal Court welcome remarks – longer than that, because you participated in legal proceedings first as an articled clerk.

On behalf of the Victorian Bar, I wish your Honour the very best in retirement.  May it please the Court.

GUMMOW J:   Thank you, Ms Sloss. Ms Miller.

MS K. MILLER:   May it please the Court.  I appear on behalf of the Law Institute of Victoria and the solicitors of this State.  The President of the Law Institute, Michael Holcroft, is overseas and I pass on his compliments and best wishes.

As solicitors, we are proud of our role in the administration of justice, which was described by Sir Owen Dixon as of “the greatest possible importance”.

Solicitors were glad of your Honour’s expressions of appreciation, made at your welcomes to the Federal Court and to this Court, for the quality of your service under articles and of your experience as a young practitioner, and then partner, at Allen, Allen & Hemsley.

The Law Institute is pleased to adopt and endorse all that has been said by Ms Sloss on behalf of the Bar.  We join with the Bar in expressing our appreciation of your Honour’s service over many years to the law and both the Federal Court and to this Court and in wishing your Honour well in what we all hope will be an active, productive and satisfying retirement.  May it please the Court.

GUMMOW J:   Thank you, Ms Miller.

Ms Sloss, Ms Miller, Justice Gordon, Justice Tate, ladies and gentlemen, the Court is deeply appreciative of the esteem indicated to the Court by the attendance here this morning of so many people.

The first of these ceremonies I attended was as a very young barrister in Sydney.  It was a welcoming ceremony, as they call them there.  As we were leaving I said to a silk, who had better remain anonymous: “That seemed very impressive.  They seemed to say a lot of generous things”, and he said, “It’s what they say when he leaves that will really matter”.  He had a point, as it turned out.

My connections with the Victorian profession go back a long way.  I first, as a solicitor, briefed members of the Victorian Bar many years ago.  I can remember briefing Mr Alf King, Mr John Lyons and Mr Keith Aickin.  My firm did so for good reason.  The good reasons were even more apparent when one arrived down here for a conference.  There were two characteristics which did not manifest themselves much in Sydney.  First, counsel had read the brief before we arrived; secondly, they gave us their undivided attention.  There was no interruption and incessant telephone calls from other sources of legal work while we were trying to have a conference.

There were some difficulties, though.  First, in Mr Lyons’ chambers it was almost impossible to breathe for the smoke.  Leaving Mr Aickin’s chambers – he had been talking very quietly to us and we had been nodding – when we got out of the room we were not at all sure any of us had really understood what he was telling us, so quiet was his demeanour.

I had an even earlier experience with members of the solicitors branch in Melbourne.  This was at a time when there was beginning what would now, I think, be understood as the development of a national legal profession.  This was stimulated by the flow into this country of vast funds from a number of international banking sources to stoke project development, as it came to be called.

This required a national effort on the part of the solicitors branch around the country.  It was in that connection, as a very young solicitor, I came to Melbourne to tag behind my elders and betters to work with Mr Peter Trumble and Mr Colin Trumble at Mallesons and the legendary Mr Macindoe at Hedderwicks.  They were very impressive lawyers.  It is not, I think, fully appreciated the extent to which the work that was done then has helped the creation of a new dimension in the Australian legal system.

The work of the Court, of course, is enormously stimulating and we are greatly in debt to the assistance we get from counsel.  However, I have never asked a question about the statute of Quia Emptores in my life.  It is probably too late today to start.  The Court greatly appreciates what has been said this morning.  We look forward, after my departure of course, to further assistance at the highest level from the Victorian profession.  We thank you for attending this morning. 

We will take a short adjournment before we commence the special leave list.

AT 9.29 AM THE COURT COMMENCED
THE HEARING OF SPECIAL LEAVE APPLICATIONS