Ceremonial - Farewell to Hayne J - Sydney

[2015] HCATrans 90

[2015] HCATrans 090

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 KENNETH HAYNE

AT

SYDNEY

ON

FRIDAY, 17 APRIL 2015, AT 9.16 AM

HAYNE J
BELL J
GAGELER J

HAYNE J:   Mr Hutley.

MR N.C. HUTLEY, SC:   May it please the Court.

I have the honour to speak on behalf of the New South Wales Bar on this last sitting by your Honour in this Court.  I do so relatively at ease that there is neither a 19th century Victorian statute to confound my remarks, nor a susceptibility to their being reduced to four, all too anaemic, but essential propositions.

Your Honour has been a judge since 1992, and of this Court since 22 September 1997.  In October 2003, as part of the celebration of this Court’s centenary, your Honour observed that you were participating in a marathon, not a sprint.  There was no hint of the martyr in that remark as your Honour continued that although the workload was unremitting, it had had its rewards, particularly in doing it as well as you could.

The raw statistics of your Honour’s run are that since your Honour’s first entry in the Commonwealth Law Reports in Romeo v Conservation Commission of the Northern Territory at page 485.9 of volume 192, your Honour has participated in 679 reported decisions, and no doubt there are three or four volumes to go as the tail of your Honour’s decisions run out.

Attempts to make any assessment of the significance of the body of your Honour’s work would be presumptuous and, in any event, as they say, it may be too early to tell.  However, by any standards, that body is impressive and mightily admired.

Bret Walker addressed on behalf of the Law Council at your Honour’s swearing‑in, and speaking with an elegance and in tones that I dare not try to replicate, he derided the pundits who mapped out your impact on what might be called the judicial political balance of the Court.  The childishness of such characterisations are all the more obvious when one attempts to look back at a career of your Honour’s breadth and distinction.

Your Honour has obviously run as hard – and every now and again, perhaps too hard – and as well as your Honour could at the hundreds of challenges that have been deposited before you in this Court. 

The New South Wales Bar wishes you well in whatever your next outing may be.  We are indebted for your Honour’s service to this Court.

If the Court pleases.

HAYNE J:   Thank you, Mr Hutley.  Mr Eades.

MR J. EADES:   May it please the Court.

On behalf of the solicitors of New South Wales, it is a pleasure to add my remarks on the occasion of your Honour’s final Sydney sitting.  We wish you well in the future, and thank you for your contribution you have made to the law as a judge, a teacher and mentor. 

In preparing for this occasion, I am mindful that your Honour will sit through many of these ceremonies and probably has perfected the art of sleeping with your eyes open, if not already, so my remarks will be short.

The legal profession and the law have undergone significant changes since your Honour’s admission to practice (and, indeed, my own):  the feminisation of the profession, the emergence of new business models and areas of practice, globalisation coupled with major technological – and I use the word in inverted commas – “advances”.  At this point, your Honour has the distinction of mastering an iPad, which has been noted in the Court.  Unfortunately, unlike you, sir, I have been dragged kicking and screaming into this century and I view this ghastly instrument as the devil’s toy.  I prefer old‑fashioned occasion - a black Bakelite phone sitting on a desk.  You had peace then. 

There was no Federal Court, and High Court judges were afforded tenure for life.  Perhaps some would consider that a sentence enough.

On the occasion of your swearing‑in, Mr Gotterson said that “history was against you”.  He was referring of your appointment to the Victorian Supreme Court when you feared you were “too young” to sit.  This, of course, was not borne out by your subsequent appointment.

But history is against you by virtue of fact that your Honour is approaching that milestone that requires you to step down.  No one would rationally consider you are “too young” to leave the Bench, certainly if it means being carted off to the “Home for Bewildered Judges”.

As further evidence, I put the following to you.  Since your appointment, the High Court has published 17 Annual Reports.  Almost Oscar Wilde like, your photo accompanying the notes has very rarely changed.  One wonders was there a painting somewhere in the High Court’s cellar.

Your Honour has served under three Chiefs - Sir Gerard Brennan, Murray Gleeson and Robert French.  None of the honourable members at the time of your appointment remain today:  Mary Gaudron, Bill Gummow, Michael Kirby, Michael McHugh and John Toohey.  You have outlasted even some who came after you.

Your deliberations and decisions are well noted, and your Honour remains a highly sought‑after speaker, which will provide probably a higher income than what the High Court Judges now receive.  You have offered practical and thought‑provoking advice and guidance to students and others.

As a truth, you have often stated that regardless of our title or the letters after our name, the work each of us does in the administration of justice matters:  “It matters far, far more, than we who do it” and we have an “enduring responsibility to do it well”.

It is now time not to look to the past, but ahead.  In wishing you well in your retirement – and I use the word advisedly – you will no doubt continue to be a vibrant and active participant in legal circles and wider. 

On behalf of the solicitors in New South Wales, we wish you a healthy, happy and fulfilling next stage in your life journey. 

May it please the Court.

HAYNE J:   Thank you, Mr Eades.

Mr Hutley, Mr Eades, your Honours, Mr Solicitor, ladies and gentlemen. 

May I thank both you, Mr Hutley, and you, Mr Eades, for what you have said.  It is not common for the Court to thank advocates for making submissions that are extravagant and exaggerated, but perhaps this is an occasion where I may be forgiven for doing so.  I am glad to know, though, and you may be comforted by the fact, that my colleagues will very quickly point out just how extravagantly wrong are the claims that you have made.

You are right to point out that it has been a long time that I have been sitting here.  So long have I been a member of this Court that, of the 50 who have sat as Justices of this Court since 1903, I have sat with nearly one‑third of them, and when I add to the 16 with whom I have sat, a further 10 before whom I had the opportunity to appear, I have engaged professionally with more than half of those who have ever sat as members of this Court, so indeed, it has been a long time.

Farewells are a frequent event in the courts.  They mark the change and renewal that must mark the life of every court.  They serve also to mark the continuity that underpins the administration of justice in this country, for in accordance with the unbreakable tradition of the Bar, whenever there is a retirement or a death, the universal response of the Bar has always been that single compound statement:  “That is a shame.  Who is going to be appointed?”  Rightly, the Bar, and the profession generally, look forward, not back, so a farewell like this provides the opportunity for the Bar to be assured in a formal and public way that the change in composition of the Bench which has been the subject of constant speculation in the corridors really will occur.

I must assuredly leave to you speculations about the future.  It is enough to say only that I am, of course, pleased and proud about what the President of the Law Council called “the curious quirk of history” that is to occur on 9 June.

It is a rare and remarkable privilege to be a member of this Court.  As you said, Mr Eades, I have remarked that the work is, and it should be, hard and unrelenting, and that therein lies much of the reward that the work offers.  That is not its only reward.  It is the privilege of witnessing the very finest advocates in the country instructed by the most able solicitors performing their indispensable parts in the pursuit of justice according to law.  There is the inestimable privilege of working with colleagues of the calibre exemplified by those who sit with me on the Bench today.  There are the joys of working with the associates who come to work in chambers, and then watching their lives and careers develop as remarkably as they do when they leave chambers.

I first sat in Sydney as a Justice of this Court on 3 October 1997.  On that occasion I recalled that from a very early time in my career at the Victorian Bar I had been exposed to the work of leading New South Wales practitioners, including W.P. Deane, A.M. Gleeson, T.E.F. Hughes, others, and thought then that they were rightly regarded as leaders of the profession in this State and in the country, and so they were.  I said that a legal profession which produces such practitioners and in which such practitioners are valued is itself a strong profession.  The 17 and a half years that have since elapsed have reinforced the view I then expressed.

Of course, new leaders of the profession have emerged in the very many years that have passed since I left the Bar.  They, too, are leaders of the profession, not only in this State, but in the country as a whole.  It remains the case that a profession which produces such practitioners, and in which such practitioners are valued, is itself a strong profession.  Long may it be so.

Those of you who have come here this morning do me great honour, and I thank you for it, but you also honour this Court, a Court in which I am profoundly proud to have served.

We will adjourn to reconstitute for the business of the day.

AT 9.29 AM SHORT ADJOURNMENT