Ceremonial - Farewell to Crennan J - Melbourne

[2014] HCATrans 287

[2014] HCATrans 287

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 SUSAN CRENNAN

AT

MELBOURNE

ON

FRIDAY, 12 DECEMBER 2014, AT 9.15 AM

CRENNAN J
KIEFEL J
BELL J

CRENNAN J:   Mr Peters.

MR J.W.S. PETERS, QC:   May it please the Court, I appear with MR D.J. CRENNAN on behalf of the Victorian Bar.

The Victorian Bar is delighted to have the opportunity to speak today at your Honour’s last sitting in Melbourne on behalf of the Victorian profession.

Your Honour has served as a Justice of this Court for more than nine years, and before that, for nearly two years as a judge of the Federal Court.  Before that, your Honour practised as a barrister for 25 years, of those, more than 14 years as a Silk.

Your Honour was an outstanding advocate, with an extraordinarily broad practice.  On any given week, your Honour could be found appearing in a patent trial, in a constitutional or commercial case, or in a criminal appeal.  Your Honour’s practice was also international, taking your Honour to work in America, England and Switzerland.  This wide scope of disciplines is unusual in this era of specialisation today.  In each area, your Honour displayed excellence in legal and factual analysis.

Your Honour was also a leader of the profession, not only in Victoria but in Australia.  Your Honour was Chairman of our Bar, and your Honour was President of the Australian Bar Association.

Your Honour held these positions in troubled times, when the very existence of the independent Bars was under significant threat from Commonwealth and State law reform agencies.  Your Honour was a courageous and effective leader, fiercely and persuasively putting the case for the critical role of the independent Bar in the administration of justice, and I see, your Honour, that we are all still here.

On your Honour’s appointment to this Court, Chris Merritt of The Australian wrote that your Honour was “a Renaissance woman”.  Honours in Law at Melbourne and Sydney Universities, the Jesse Leggatt Exhibition in Contract at Melbourne were to be expected.  But your Honour also obtained first class Honours in your postgraduate history thesis at the University of Melbourne.  This, and your Honour’s academic interest in English literature, are examples of the breadth of your Honour’s achievements in education and also they exemplify your Honour’s understanding of the human condition.  These qualities well prepared your Honour for your role on this Court.

On appointment, your Honour brought to this Court a foundation of a sound understanding of the law, the perspective of history, and the human qualities needed for the impartial dispensation of justice according to law, all this against a significant background of social change and major shifts in public and private values.

Two days after your Honour was sworn in, on 10 November 2005, your Honour as part of this Court heard the two cases of Harriton v Stephens and Waller v James, the so‑called “wrongful life” cases.  They concerned profoundly disabled children who, but for the claimed negligent failure to diagnose and advise their mothers, would not have been born.  Your Honour wrote the leading majority judgments holding that the child plaintiffs could not succeed.  The reasoning included an analysis of the content of human existence.

In the constitutional cases of Rowe v Electoral Commissioner and the two cases of Williams v Commonwealth, your Honour’s judgments added in particular a valuable historical perspective.

Your Honour has sat in important intellectual property cases, an area in which your Honour excelled at the Bar.  These included Lockwood (No 2), IceTV, iiNet, Apotex and Alphapharm.

Throughout your Honour’s professional career, you championed access to justice for all.  As Chairman of the Victorian Bar, your Honour worked with the Law Institute on the establishment of the Victorian Bar civil litigation assistance scheme, supported by a cognate Law Institute scheme, and you convinced the Victorian Government to supply seed capital.

Courtesy has been one of your Honour’s hallmarks.  As a judge of the Federal Court and a Justice of this Court, your Honour has been unfailingly respectful to all parties and their counsel; not merely “do[ing] right to all manner of people according to law, without fear or favour, affection or ill will”, but more than that, considerate of the human condition of those who came before you.

Your Honour’s service and contributions to the Victorian Bar, to the independent Bars of Australia, to the legal profession, to this Court, and to the jurisprudence of Australia has been outstanding. 

On behalf of the Victorian Bar, I wish your Honour, your husband Michael and your family, all the very best in your Honour’s retirement from this Court.

May it please the Court.

CRENNAN J:   Thank you, Mr Peters.  Mr Bowyer.

MR G. BOWYER:   May it please the Court.  I appear on behalf of the Law Institute of Victoria and the solicitors of this State.

Your Honour was never a solicitor – you did not even serve Articles, because that was not required in New South Wales for those going directly to the Bar.  However, it could not be said that we did not try.

In the final year of your law degree, you worked as the librarian at the Sydney firm of Smithers Warren & Tobias, which later became Phillips Fox.  You had previously qualified as an Associate of the Institute of Patent Attorneys and worked at the Sydney Patent Attorneys, Arthur S Cave & Co.

The intellectual property partner at Smithers had you do some work for him.  He recognised exceptional quality, and did his utmost to keep you.  On hearing that you intended, on completion of your law degree, to leave and begin reading with David Bennett, he flew into your room: “Have you lost all capacity for rational thought?”  Not the most subtle or propitious approach to a talent he was trying to persuade to remain with the firm and serve articles with him.  But he did try.

Your Honour was the most consummate barrister.  However, your respect for, and active commitment to, the whole of the profession is legendary.  As Bar Chairman, you worked with the Law Institute President on building understanding and good relationships between the two branches of the profession in, as had been said, difficult times.

In 1995, in the massive change from the Legal Aid Commission to Victoria Legal Aid, your Honour was on the five‑member Board, and worked closely with Chairman Geoff Masel and Managing Director Rob Cornall.

Then the Legal Practice Act 1996 radically changed the whole landscape of legal practice in Victoria. Once again, your Honour played a key part in making the transition work for practising in the profession. Appointed to the Legal Practice Board, your Honour worked closely with fellow Board member and past Law Institute President, David Miles, for the good of the whole profession.

Along with other recent women, Chairs of the Victorian Bar, Justice Melanie Sloss and Fiona McLeod, SC, you have done much in bringing the LIV and Bar relationships so much closer together.  We are gladdened that the Crennan name will continue to resonate throughout this Court, and we note that your son Daniel is here today to honour the family name.

Your Honour has been truly a leader of the entire profession, and on behalf of the Law Institute of Victoria and the solicitors of this State, I am proud to join the Bar Chairman and the Bar in paying tribute to your Honour’s remarkable career and contributions to the law and to the jurisprudence as a barrister, judge and Justice of this Honourable Court, and to wish your Honour and your husband Michael and all of your family the very best in your retirement from the Court.

May it please the Court.

CRENNAN J:   Thank you, Mr Bowyer.

Judicial colleagues from other courts, former judicial colleagues from other courts, members of the legal profession and ladies and gentlemen, the Court greatly appreciates your attendance this morning.  Mr Peters and Mr Bowyer, thank you for the generosity of your remarks and your expressions of goodwill.

The incoming member of the Court, Justice Nettle, will be sworn in at the beginning of February in Canberra.  I have had a chance to congratulate him and to wish him a successful and satisfying period in office.

It has been my good fortune to be in chambers in Melbourne with Justice Hayne since 2005.  The day‑to‑day work of the Court is made so much easier by collegiality, and the shared concern of all members of the Court for its institutional wellbeing.

I am particularly glad my husband, Michael, is present in Court this morning, together with our children, Daniel and his wife Laura, Bridget with her husband Paul, and Kathleen, and our grandchildren, Hannah, Tomas and Lillian.  Their unstinting patience and support has been crucial to me during the course of my time as a Justice of this Court.  I am glad to have the opportunity to thank them.

I should also acknowledge my warm gratitude to Ms Shirley Downing, who has been my personal assistant throughout my judicial career, and has been of tremendous assistance to me over that time. 

The support received from officers and staff of the Court in Canberra and other Registries, most particularly Melbourne, must also be mentioned.  I thank them all.

It is also a great pleasure to see in Court current and former associates, all finding their way, or about to, in a profession I can recommend highly.

Manifold changes both to the law and to legal practice since I was first admitted reflect complex social changes, at least in part.  It would be impossible to expatiate on such changes meaningfully in a speech as short as this must be.  It can be remarked, however, that the Commonwealth Law Reports are perhaps the greatest natural archive of Australia’s social, political and economic history.  This reflects the firm tethering of the law in the spirit of every age.

Let me turn now to the Victorian legal profession.  My experience with Victorian solicitors was a happy one, informed by their culture of professionalism and high efficiency. 

As I look around, I see some with whom I appeared as a junior, and many whom I led.  Some of those are now judges.  I also see former colleagues from the 17th floor of Owen Dixon West, some now serving as appellate justices.  Each of those persons inspired me when we were all in active practice at the Victorian Bar.

As to the Victorian Bar more generally, its professional continuities and its ethical standards secured by different generations of barristers are much to be admired.  The responsibilities of exercising the judicial power of the Commonwealth, both in the Court’s original jurisdiction and in its work as a final Court of Appeal, are made so much lighter by able advocacy.

Once again, I thank each of you for your attendance this morning.  There will be a brief adjournment before we commence hearing the special leave list.

AT 9.27 AM SHORT ADJOURNMENT