Ceremonial - Hayne J - Welcome Sydney CER

[1997] HCATrans 274

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 KENNETH MADISON HAYNE

AT

SYDNEY

ON

FRIDAY, 3 OCTOBER 1997, AT 9.15 AM

HAYNE J

Speakers:

Mr D.M.J. Bennett, QC, President, New South Wales Bar Association

Ms M. Hole, Junior Vice-President of the Law Society of New South Wales

TRANSCRIPT OF PROCEEDINGS

HIS HONOUR:   Mr Bennett.

MR BENNETT:   May it please the Court.  At your Honour’s ceremonial welcome in the High Court about two weeks ago, the Chairman of the Victorian Bar claimed you for his State.  We have also heard that your Honour was born at Gympie in Queensland and that State, too, has staked a claim.  Our claim is somewhat weaker.  It is based on the fact that we assume that you must have passed through New South Wales on your way from Queensland to Victoria as an infant.  Your Honour was a Rhodes Scholar and I confidently expect that the English Bar will at some stage seek to share your Honour’s glory.

The selection process for High Court Judges is becoming more complex and more public.  The degree of consultation involved in your Honour’s selection was outstanding and the fact that such a wide and appropriate consultation process resulted in your Honour’s selection is itself an enormous accolade to your Honour’s eminence and suitability for the position.

Our only concern in relation to the process is that the government appears not to have appreciated the significance of your Honour’s middle name, Madison.  Marbury v Madison was, of course, the leading United States authority which laid down the principle, for the first time, that courts in a federation could hold legislation to be invalid.  If your Honour takes inspiration from the heritage implied by that name, some of those responsible for your appointment may not be too pleased.

Many members of the New South Wales Bar had an opportunity to observe your Honour in action in 1991 in the Occidental Case.  That case involved about 25 counsel and at least that number of solicitors and a hearing which extended over a period of five months.  What we observed about your Honour in that case was that, whereas many other parties with a lesser involvement had teams of between three and five barristers and as many solicitors, your Honour managed to act for the party with the greatest degree of involvement with the other parties, the greatest degree of involvement with the issues with a single junior and, for most of the time, a single albeit outstanding solicitor.  The workload upon your Honour during that case must have been backbreaking but your Honour never complained and you conducted the case with skill and as if you had a team of many times that size.  The New South Wales counsel were all highly impressed.

Your Honour brings to the High Court experience not only of 22 years of practice at the Victorian Bar but also of periods both as a first instance judge and as an appellate judge.  In all three endeavours you have achieved eminence and respect.

The Bar of New South Wales welcomes you on your first visit to this State as a Judge of this Court and looks forward to more frequent visits in the future.  May it please the Court.

HIS HONOUR:   Thank you, Mr Bennett.  Ms Hole.

MS HOLE:   May it please the Court.  Your Honour, on behalf of the 14,500 solicitors of New South Wales, it is with pleasure that I congratulate you on your appointment.

Your appointment at this time in history is encouraging as you bring with you a wealth of experience in practice and a demonstrated ability to provide clear decisions with sound reasoning.

There has been much criticism of recent decisions of this Court without commentary on the reasoning given with the decisions.  You should not despair as to the value of reasoning, which will influence the thinking and argument of the future whilst the sensational selective reporting of the decisions will pass.  As with all forms of education, especially legal education of the professions and the public, the passage of time vindicates the task.

Your Honour has demonstrated his interest in legal education and we look forward, with you, to clear guidance as to the law interpreted in accordance with the prevailing reasoning assisted by comprehensive argument.  Necessarily, in some instances, the nature of society and the mores of society may be affected, and rightly so.                   Your reputation for legal learning, intellectual rigour, diligence and efficiency in your previous roles precedes you and it is welcomed.

Your Honour, I understand that there was some concern in respect of the chambers that you were to occupy in Canberra.  However, you may be rest assured or rather, toil assured, that the chambers you will occupy in Sydney do not leak; the rain does not penetrate the membrane here.

The solicitors of New South Wales trust that your high regard for our arm of the profession will continue to be justified.  We wish you well for the future and we feel confident that in your appointment the great tradition of this Court will increase.  May it please the Court.

HIS HONOUR:   Thank you, Ms Hole. 

Mr Bennett, Ms Hole, ladies and gentlemen, thank you all for your presence here today.  You do me great honour by taking the trouble to attend this ceremony but you also properly mark the place which this Court has in the life of this country.

Thank you, too, Mr Bennett and Ms Hole for what you have said.  It was unduly generous to me but it would not be right on this, my first sitting in Sydney, to seek to engage in some elaborate dissection of the submissions that have been made.

During my work at the Bar I was privileged to work with a number of practitioners from this State and, later, as a judge in Victoria, I had the pleasure of seeing some of the more peripatetic come to my court.

My first substantial exposure to the New South Wales profession began at the top.  In 1975 I was briefed to appear with W.P. Deane, QC, in the Western Australian air routes case.  It was soon clear to me, a very young and very inexperienced junior, why he was regarded as a leader of the Bar in this country.  But it was also clear to me very soon that he was a man who was prepared to take time to explain to the novice what he was proposing to do in Court, and why.  For that, I was and remain very grateful.

Later, I spent many days in various long cases to which the fates consigned me and in which other leaders of the New South Wales Bar were engaged - A.M. Gleeson, T.E.F Hughes, Andrew Rogers and others.  In addition, in the course of my occasional forays into the old court room at Darlinghurst where the High Court then sat, I saw those and others such as John Lockhart, Bryan Beaumont at work.  More recently, of course, I worked with or against other, equally eminent, practitioners from this State.  In these ways I was exposed to the work of the profession of this State from a very early time in my career:  both to its Bar and to its solicitors.

We are all familiar with the gossip among gatherings of lawyers which generalises about the work of the professions of each of the States.  All of us have heard those single sentence summaries of a large and diverse group of professional men and women as “more litigious” or “more combative” than some other group which is equally diverse.  All of us know that such generalisations reveal little, if anything, of real use.  But you will forgive me if I indulge myself by appearing to generalise from my own experiences.  Those whom I have mentioned were rightly regarded as leaders of the profession in this State and in the country.  Their professional skills were undoubted, the values which they pursued and applied were exemplary.  A legal profession which produces such practitioners and in which such practitioners are valued is itself a strong profession.  The importance of a strong legal profession to the work of the courts and to society generally is obvious to all of you.

When I was at the Bar I learned much from the practitioners of this State.  I know that that will continue to be the case and I look forward to it.

Thank you all for your attendance and for your good wishes.

The Court will adjourn to reconstitute for the business of the day.

AT 9.24 AM THE COURT ADJOURNED