Ceremonial - Heydon J - Welcome Adelaide CER

[2003] HCATrans 290

[2003] HCATrans 290

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 JOHN DYSON HEYDON

AT

ADELAIDE

ON

TUESDAY, 12 AUGUST 2003, AT 2.02 PM

HEYDON J

Speakers:

Mr Andrew B. Goode, President of the Law Society of South Australia

Mr Brian R.M. Hayes, QC, President of the South Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

HEYDON J:   Yes, Mr Goode.

MR GOODE:   May it please the Court, it is my honour and privilege today to represent the Law Society of South Australia and extend our very warm welcome to your Honour on your first visit to this State as a Member of the High Court.

Your Honour, it is six months today since you were sworn in as a Justice of the High Court of Australia and since that time you have been welcomed in a number of States and well‑deserved words of praise have been uttered on those occasions so you have probably heard all of this before.  But as your Honour well knows, listening to repeated submissions comes with the territory.  It is now South Australia’s turn to welcome you, and on behalf of the profession, record our sentiments on the first day of this week’s sittings and to congratulate your Honour on your appointment to the High Court.

Your Honour and your colleagues will also have heard representatives of other outlying States say how important it is that the High Court travels to them and that the Court continues with the tradition of participating in a welcome ceremony for the most recently appointed Justice.  These visits have, on past occasions, locally been likened to “wise men visiting from the East”.  Indeed, one past president, on a welcome for a previous Member of the Bench, likened it to Christmas.

But as the economic and political power of Sydney, Melbourne and Canberra grow, and communication between far‑flung cities becomes easier, there is a tendency for major institutions to become centralised in the Sydney/Melbourne/Canberra triangle.

However, the profession and the people of this State take the view that justice is not one of those institutions which can be exclusively concentrated in one place.  Accordingly, we are very grateful for the Court continuing to visit, and also to your Honour for agreeing to participate.

Your Honour has an outstanding reputation as a jurist and someone who has already made a significant contribution to the law in Australia.  We are confident that your Honour will make an enormous contribution to the High Court.  Your Honour has a legendary reputation, I understand, for being extremely hard working, and many stories abound of your 5 am starts at Chambers.

Your Honour has an impressive list of educational and professional credits to your name.  After completing a Bachelor of Arts at the University of Sydney in 1964, your Honour became a Rhodes Scholar.  Your Honour completed a Bachelor of Arts and a Bachelor of Civil Law, both with Honours, at Oxford University, and then completed a Master of Arts at Oxford, as well as being a Fellow and Tutor.

In 1973, your Honour was admitted as a Barrister in New South Wales and also became a Professor at the University of Sydney’s Law School, being appointed the youngest Dean of the Faculty in 1978.  Your Honour was appointed a Queen’s Counsel in 1987 and sworn in as a Judge of the Supreme Court of New South Wales and the Court of Appeal in 2000.

Your Honour is a prolific legal author and editor.  Generations of Australian students have relied on your legal texts on Evidence and Trusts and Equity, some of which you co‑wrote with other eminent members of the profession.  At times, your Honour’s output of published works has averaged two major texts each year.  Your Honour has also been the General Editor of Halsbury’s Laws of England since 1990 and Editor of the New South Wales Law Reports and Australian Law Reports since 1981 and 1980 respectively.

You have also been a co‑author of Donald and Heydon, a leading text of Trade Practices Law, which is a much loved and used textbook for any lawyer who dares to dabble in trade practices law, and I found, in fact, a first edition copy in our own office, under our own book retention policy, even though it has now been superseded by the leading text Heydon on Trade Practices Law.

Your Honour, a more personal view of your Honour’s attributes was expressed by Ian Jackman when he said “Heydon has also taken on a workload that should have been outlawed by some post‑Dickensian Factory Act.  No efforts were spared in anything he touched.  After a distinguished academic career Heydon spent only eight years at the Junior Bar, after which he commenced practice as a Silk.  On top of that, he has written seven books and countless articles and reviews, edited two series of law reports and has given his time freely for a very large number of causes both within the legal profession and the community at large.  If that were not enough, he has raised and educated four children.  I suppose if you can fill a pram, you might as well fill a boat.  As Fred Trueman said when he eventually hung up his cricket boots, someone someday would break his record, he just wanted to make sure the person would be very tired when he did ‑ ‑ ‑”

On that basis, my next point is probably wasted, but if your Honour has a small window of opportunity at all to see the delights of Adelaide on your visit, I should recommend to you one of our icons which is very close by here in the form of the Adelaide Market which sells our finest local produce and serves great coffee.  Perhaps you may get a chance between sittings.

The legal profession of this State welcomes your Honour to Adelaide today and looks forward with anticipation to your work on the Court and to continuing to welcome your Honour here for many years.

If the Court pleases.

HEYDON J:   Thank you, Mr Goode.  Yes, Mr Hayes.

MR HAYES:   May it please the Court.  May I also, on behalf of the South Australian Bar Association, welcome your Honour to South Australia on this your first visit as a Member of the High Court.

Information about your Honour’s background and experience has been publicly acknowledged at your Honour’s swearing in at Canberra on 11 February this year, and of course, subsequently in a number of sittings to welcome your Honour to the various States’ Supreme Courts.  Whilst acknowledging that, I do not make any apology for repeating some of that information for the benefit of members of this State who were not at those sittings, in order to enable South Australian practitioners to be made aware of your Honour’s achievements.

Your Honour has had a diverse and distinguished career in the law as an academic, as a senior and eminent barrister, a prolific author and as a Judge, and having been born in Ottawa, Canada, as the son of a diplomat, you were educated in a number of cities around the world, including London, Wellington, Rio De Janeiro and Sydney where you completed your education, graduating from St Paul’s College, University of Sydney, in 1964, with a Bachelor of Arts degree with First Class Honours and the University medal in history.

My learned friend has mentioned your Rhodes scholarship to Oxford, and subsequent to that, you were a Fellow and Tutor at Keble College, Oxford, as well as lecturing in evidence and trusts at the Inns of Court School in London.  Whilst a tutor at Keble, your Honour tutored our Chief Justice, the Honourable John Doyle, and also Mr Justice Sundberg of the Federal Court.

I believe that a good anecdote is worth telling.  It is also worth telling again, and so I have had resort to my colleague in Victoria who mentioned that whilst you were at Oxford, your Honour was, in Kipling’s words, both a “flannelled fool at the wicket” and a “muddied oath at the goal”.  It was pointed out at that sitting that you have always played a vigorous game of rugby which you continued to do until suggested by the then William Gummow that it was not fitting for the Challis Professor and Dean of the Law School to be seen kicking heads on a Saturday afternoon.  It was then that your Honour adopted Justice Gummow’s suggestion that you cease playing rugby and his other suggestion that you go to the Bar.

In addition to a very busy and successful practice at the Bar in New South Wales, you have continued your writing, publishing extensively on subjects ranging from equity to expert evidence, from torts through to trade practices and trusts.

The South Australian Bar has always done its best to welcome the High Court on its visits to Adelaide, and is a strong supporter of the tradition of participating in a welcome ceremony for the most recently appointed Justice.

Chief Justice Brennan, on the occasion of his welcome in this Court, pointed out that the annual sittings of the High Court in Adelaide is more than just a symbol of the Court’s territorial jurisdiction.  It reflects the function of this Court as an integral part of the judicial hierarchy of the State of South Australia, and by the exercise of its jurisdiction, the laws that operate in this State have effectively integrated into the legal system of the nation and the advocate who appears here by discharging his or her duty to the client is necessarily engaged in the work of constitutional importance.  His Honour then said that the results of advocacy expressed in the judgment will be the law on the subject for the nation even if the subject relates only to South Australia.

Members of the South Australian Bar will continue to strive to provide the Court with the highest standards of advocacy to which this Court is entitled, and on behalf of its Members, I offer my congratulations and best wishes, and our support to your Honour to enable you to carry out the work of the Court.  May the Court please.

HEYDON J:   Yes, thank you, Mr Hayes.

I am very grateful to both Mr Goode and Mr Hayes for their kind remarks.  It is always pleasant to come to Adelaide, so beautiful a city, and compared to the ramshackle way in which Sydney is laid out, so elegantly planned a city.  It is, of course, a particular source of pleasure to come on this occasion.

It is obviously my first visit to those parts of the Supreme Court which are not open to the public.  Their rambling and rather dark corridors, which are dominated by the smell of seasoned timber and old books, contrast sharply and attractively with the bland modernity of the buildings used by federal courts in the Eastern States.  These sights and smells reinforce, on this occasion, what is one’s instinctive reaction stimulated by any visit to Adelaide, namely, remembrance and contemplation of the South Australian contribution to the common law.

It is invidious to discuss now the efforts of South Australian lawyers who are still active, but it is instructive to think of some of those of their forerunners, both living and dead.  Though much of his career was outside South Australia, the abilities of Sir Richard Blackburn greatly impressed those before whom he appeared and those who have had recourse to his judgments.

Chief Justice Bray’s qualities are so widely known as not to need any specific reference today.  Dame Roma Mitchell’s judicial career, like her pre‑judicial and her post‑judicial careers, was one of outstanding distinction.  Mr Justice Zelling established an enviable reputation for scholarship across many fields of law, and at least, in my personal opinion, Mr Justice Cox’s judgments constitute a corpus of highly meritorious achievement.

Another South Australian judge, to whose opinions one always turns with keen anticipation, and after perusal without any disappointment, is Chief Justice King, particularly in all matters of criminal law, practice, and procedure.

By coincidence, I was sent this morning a copy of a learned paper to be delivered at a conference of the Judges of the Supreme Court of New South Wales to be held on 22 August.  The author of the paper is Lord Justice May of the English Court of Appeal.  The subject is “expert evidence”.  He quotes with approval Chief Justice King’s celebrated judgment on expert evidence in R v Bonython (1984) 38 SASR 45. He notes that it has received the tribute of lengthy quotation in Archbold. That is but one fortuitous example of the high place Chief Justice King holds in informed professional opinion across the common law world.

But there is one South Australian judge who stood supreme, with only one or two others, in my opinion, among the lawyers of his day and generation, not only in South Australia but throughout Australia, and indeed, beyond Australia.  Mr Justice Wells made many contributions to the law, particularly the law of evidence, in his extra‑judicial writings.  In those writings, he propounded independent and fresh views with admirable force.  He had unusually profound insight into the trial process.  His trenchant opposition to the enactment of the Evidence Act 1995 by the Commonwealth and New South Wales Parliaments, warned that their enactment would sow the wind and that future generations would reap the whirlwind. Those warnings were read by the responsible Federal Minister and were no doubt taken into account by him, but they were rejected.

The most senior criminal judges in New South Wales, at least, now accept that those warnings were salutary and that the dangers described have come to pass.  On the Bench, the judgments of Mr Justice Wells were models of deep and judiciously applied learning, classics of legal reasoning which will retain their value as long as there is a common law.

It may be expected that South Australian lawyers and judges, operating against that inherited background, will continue to make useful contributions in the future.  I look forward with pleasure to participating in hearing special leave applications and appeals from the courts of South Australia and the Federal Court, sitting in South Australia.

Mr Goode’s statements about the importance of the High Court visiting Adelaide and his hopes that the High Court will continue to visit Adelaide are, I think, shared by the Justices, and they also have the sentiment that it is desirable to continue to visit Brisbane, Perth, and so far as business permits, Hobart.  While I have not specifically discussed this with them, I would anticipate that their hope, and no doubt the hope of all South Australian lawyers, is that those visits will continue into the indefinite future.

I thank you all very much for your attendance today.  The Court will now adjourn briefly.

AT 2.17 PM THE COURT ADJOURNED