Ceremonial - French CJ - Welcome Sydney

[2008] HCATrans 340

[2008] HCATrans 340

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 CHIEF JUSTICE ROBERT FRENCH

AT

SYDNEY

ON

TUESDAY, 30 SEPTEMBER 2008, AT 9.19 AM

FRENCH CJ

Speakers:

Mr S. Gageler, SC, Solicitor‑General of the Commonwealth of Australia

Mr H. Macken, President of the Law Society of New South Wales

TRANSCRIPT OF PROCEEDINGS

FRENCH CJ:   Yes, Mr Gageler.

MR GAGELER:   If your Honour pleases.

It is an irony borne of a tradition founded on respect that your Honour must, this morning, endure being welcomed to a place where your Honour is certainly no stranger, on behalf of persons to whom and by whom your Honour is well known.

As a judge of the Federal Court of Australia, as President of the Native Title Tribunal, as a Presidential Member of the Administrative Appeals Tribunal and as a Presidential Member of the Australian Competition Tribunal, your Honour was a frequent visitor to Sydney.

The performance of national functions on a national stage has also involved your Honour in frequent professional contact elsewhere with members of the New South Wales Bar, whose practices are themselves increasingly less confined by State boundaries.

Long before attaining the omnipotence that comes with the office of presiding over Australia’s ultimate court of appeal, your Honour was omnipresent; criss‑crossing the country to preside at first instance or at the intermediate level of appeal over any number of cases on any number of subject matters; frequently in person, not infrequently by video link and even on occasions through the virtual reality of eCourt, of which your Honour was an early pioneer.

Indeed, just two weeks before the announcement that your Honour was to be appointed Chief Justice of Australia, your Honour was in Sydney determining at short notice a distinctly New South Wales case of distinctly national significance.  Your Honour presided over the Full Court of the Federal Court which ultimately, and with the Wisdom of Solomon, held valid in part, but invalid in part, a regulation made by the Governor of New South Wales shortly before and in connection with World Youth Day.  The case was started on a Monday.  The Full Court heard it on a Friday.  The Full Court delivered judgment the following Tuesday.  In the meantime, not wasting a trip to the east, your Honour attended over the weekend an academic conference in Brisbane where you delivered one of the leading papers.

Your Honour’s approach throughout that recent case, like your Honour’s consistent approach throughout numerous other cases of comparable significance and comparable intensity demonstrated the highest qualities of industry, intellect, decisiveness, courtesy and good humour.  The first three of those qualities we in New South Wales are fortunate to have come to expect in any judge.  The last two of those qualities, courtesy and good humour, we have come very much to appreciate in your Honour.

Your Honour, on behalf of the barristers of New South Wales, I welcome you back to Sydney as Chief Justice of Australia.

FRENCH CJ:   Thank you, Mr Gageler.  Mr Macken.

MR MACKEN:   Your Honour, on behalf of the solicitors of New South Wales I am delighted to welcome you as Chief Justice of the High Court of Australia to Sydney. 

No doubt your Honour would be aware that Sydney is regarded as the “capital” of Australia and the gateway to the world - bigger, brighter and with a reputation for being more dangerous than other parts of Australia.  I thought I would take a moment to assist you in understanding the particular dangers that Sydneysiders face.

One peculiar danger is the Sydney funnel web spider.  This will cause you no trouble, however, as whilst deadly they are very introverted, isolated, lacking in confidence and increasingly recede to dim, dark holes to live out their lives.  Accordingly, it will come as no surprise for you to know that they have all moved to Adelaide.

Big cities like Sydney often have a reputation for being places where criminals pose a particular danger to people and property.  You need have no fears of this in Sydney.  Our sentences tend to be the longest in the country - the term, not just the transcript.  Our laws make it increasingly difficult to get bail when you are accused of a crime and, anyway, the particularly tough economic times in New South Wales have seen skilled professionals, tradesmen, thieves, thugs and bully boys move to the resource‑rich States of Queensland and Western Australia.

Shark attack remains a very, very unlikely, although technically possible occurrence.  If a great white does find its way to feast upon New South Wales’ scantily clad bathers, be warned, your Honour, there is some risk that the shark will be identified as being West Australian in origin and, unlike your presence here today, a most unwelcome aberration.

What there is to fear in Sydney is failure.  There are 22,000 solicitors and over 2,000 barristers in New South Wales.  They are the best, brightest and most qualified anywhere in the country.  When they speak they are almost invariably correct.  Our self‑represented litigants, although you will barely need to encounter these – you need only read about them – have unparalleled skill sets compared to the practitioners from other States, so you can imagine how erudite, perceptive, learned and persuasive even the most newly admitted graduates of the law in New South Wales are.

My advice, therefore, is that there is nothing to fear but fear itself.  Not only are you welcome here, but you have very influential and important friends here who, should you ever feel the need, can provide you with reasons, precedents and insights as to why the views you hold are, in fact, the correct views.

Hold safe in the knowledge that the profession in Sydney maintains its focus of service, service to their clients, service to the community, service to the judiciary.  With this commitment to service we look forward to, and take immense pride in, serving your Honour and your Court whenever you are in town.

May it please the Court.

FRENCH CJ:   Thank you, Mr Macken.

Mr Gageler and Mr Macken and ladies and gentlemen, I thank you for the welcome that you have accorded me on behalf of the legal profession in New South Wales.

The legal system in this State has been contentiously compared to a judicial vortex.  In its metaphorical application, the term “vortex” is defined as a state of affairs likened to a whirlpool for violent activity and irresistible force.  In 22 years as a Judge of the Federal Court who sat many times in Sydney at first instance and on appeals, I can say that I have never found the local profession to be violent in its activity or more than usually irresistible.

On the other hand, I have, both in practice, before I joined the Federal Court and while serving on that court, made many friends among the practitioners and judges of this jurisdiction.  Western Australians saw quite a number of Sydney counsel in their courts from the 1970s when barriers to entry were lowered to practitioners from anywhere in Australia accompanied by the equivalent of a local collective shout of “Bring it on”.

Both the Sydney and Perth professions were early and enthusiastic proponents of the idea of a national legal profession.  A class of person known as “West Australian entrepreneurs”, for a time a term of national abuse, generated much work for both professions.  One of the earliest cases of large‑scale prosecutions for criminal conspiracy in the 1970s attracted to Western Australia, among others, as they then were, William Deane and Malcolm McLelland. 

I enjoyed working with and against Sydney counsel in Perth, appearing as junior to Robert Ellicott in a case about dredging where we were opposed to Tom Hughes and James Allsop, with Richard Conti in the middle.  James Allsop, I remember, came to town with 15,000 interrogatories.  All I had to confront him was an ancient authority called American Flange.

The Australian Broadcasting Tribunal was active in Perth in the early 1980s and many of us in the local profession saw quite a lot of the Sydney Bar.  I recall appearing in one hearing before the Tribunal where Mr Stuart Littlemore foreshadowed an unspecified constitutional point.  I inquired through the Tribunal what the point was.  Mr Littlemore said it was all there in section 51.  He added, gratuitously, that I probably had not had much of an opportunity to peruse that section.  I have looked forward as a Judge, and still do, to having him appear and explain section 51 to me.

I have made many friends amongst the judiciary on both the Federal and the Supreme Court.  The experience of sitting on the Supreme Court of Fiji with Chief Justice Spigelman, former President of the Court of Appeal, Keith Mason, Justice David Ipp and Justice Ken Handley, was very enjoyable and stimulated my own ideas about the desirability of judicial exchange.  These ideas have focused upon horizontal exchange between courts of co‑ordinate jurisdiction and I am delighted to see has been taken up with enthusiasm in New South Wales.

Vertical exchange, where appellate judges sit on trials, and vice versa, is also to be recommended, although it can be hazardous.  Chief Justice Rehnquist, when he was on the Supreme Court of the United States, sat at first instance in a human rights case in Virginia and was reversed on appeal.  I will not be emulating his example.

To be welcomed by the Sydney profession is to be welcomed by familiar and friendly faces.  I thank you and look forward to my new task and to sitting from time to time in this jurisdiction.

AT 9.29 AM THE MATTER WAS CONCLUDED