Ceremonial - Heydon J - Welcome to Hobart

[2003] HCATrans 447

[2003] HCATrans 447

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

HOBART

ON

MONDAY, 3 NOVEMBER 2003, AT 10.47 AM

HEYDON J

Speakers:

Mr David John Gunson, SC, President of the Law Society of Tasmania

Mr Stephen Peter Estcourt, QC, representing the Tasmanian Bar Association

TRANSCRIPT OF PROCEEDINGS

HEYDON J:   Yes, Mr Gunson.

MR GUNSON:   May it please your Honour.  It is with pleasure that I appear today on behalf of the Law Society of Tasmania to welcome your Honour to this State as a member of the High Court.  I extend to your Honour the congratulations of the Law Society of Tasmania on your appointment to the Court in February of this year.  It is now some eight months since you were sworn in as a Justice of the High Court of Australia and I am aware that you have been welcomed in a number of States since then by the profession.  Your Honour has heard many well deserved words of praise in these other welcomes.  I trust that I will not be unduly repetitious this morning.

Your Honour has had a long and distinguished career in the law and has pursued that career, not only as a barrister, but as an academic, an author and as a judge.  Your Honour’s scholarship is well known and you are the recipient of a Rhodes Scholarship to Oxford.  Subsequently, at that well‑known institution, you were both a fellow and a tutor at a University College.  You have written and published extensively on the subjects of equity, torts, trade practices, trusts and evidence.  Not content to author textbooks, your Honour has also edited the New South Wales Law Reports, the Australian Law Reports and been the general editor of Halsbury’s Laws of Australia.

In 1998, the then Chief Justice, Sir Gerard Brennan, on being welcomed along with Justices Kirby, Hayne and Callinan to Tasmania, said that the sittings of the High Court in Hobart are more than a symbol of the Court’s territorial jurisdiction.  His Honour said:

It reflects the function of the Court as an integral part of the judicial hierarchy of the State of Tasmania.

Your Honour’s attendance here today, along with other members of the Court, reinforces what Sir Gerard Brennan had to say on that occasion.

That the High Court continues to travel to Tasmania is welcomed by the profession of this State and we trust that the Court will continue to sit in Tasmania on a regular basis and that your Honour will be a member of that Court on all those occasions.  However, in requesting the Court to continue to sit here on a regular basis, we must acknowledge that this involves an obligation on our part to be able to provide the Court with sufficient work to justify its attendance here.  For our part, that means the recognition that we should be prepared to seek judicial review at the highest level for our clients of those decisions that we believe should be the subject of such review.

Again, on behalf of the legal profession of this State, I welcome your Honour on this, your first visit to the State, as a member of the High Court.  May it please your Honour.

HIS HONOUR:   Thank you, Mr Gunson.  Yes, Mr Estcourt.

MR ESTCOURT:   May it please your Honour.  It is doubtless a truism and probably a tautology to say that great lawyers are prolific workers.  Whatever the correct syntactical position may be, however, your Honour fits the description on both counts.

Your Honour’s capacity for work has become legendary at the Sydney Bar, where your Honour joined the eighth floor of Selborne Chambers in 1980, spending seven years at the junior Bar before taking silk in 1987 and subsequently becoming a popular floor leader and an extremely generous mentor to the Bar in that city.

Your Honour’s arising as early as 3.00 am, attending in chambers frequently at 5.00 am and conducting conferences from 6.00 am is nothing short of astonishing to those of us who are incapable of rational thought at such hours.

Your Honour’s legal excellence is also well in evidence, as my learned friend, Mr Gunson, has pointed out; your career encompassing as it does an awesome catalogue, including tutoring at Keble College Oxford, lecturing in evidence and trusts at the Inns of Court School in London, lecturing in equity at the Law School of the University of Sydney, writing and editing the leading legal works in this country on evidence, trusts and equity and trade practices, and adorning many volumes of the New South Wales Law Reports with written judgments from the Court of Appeal.

I pause to add that your Honour was the editor of some 60 volumes of the New South Wales Law Reports between 1980 and the year 2000, not to mention the Australian Law Reports which your Honour also edited from volume 29 in 1979 through to volume 169 in the year 1999.  As my learned friend has pointed out, your Honour was also the general editor of Halsbury’s Laws from 1990.

It is an historical fact, your Honour, that frequently appointments to the Court are prefaced by, and sometimes accompanied by, close scrutiny and debate in the press and in the legal profession.  Your Honour’s appointment, however, was both popular and universally regarded as a most deserved and fitting recognition of your Honour’s outstanding achievements and contribution to the law in Australia.  There can be little doubt that your Honour’s contribution to the jurisprudence of this country will continue from your present position.

Your Honour, on being welcomed in Adelaide in August last year you commented that the rambling and rather dark corridors of the Supreme Court there, dominated by the smell of seasoned timber and old books, contrasted sharply with the bland modernity of the buildings used by the Federal Court in the eastern States.  We have shown your Honour this morning a little of each perhaps, or perhaps a compromise, but we trust that you enjoy your time in our court here in Hobart.

May I conclude, your Honour, on behalf of the Bar, by congratulating you most warmly on your appointment to the Court and by welcoming you to our State.  May it please your Honour.

HIS HONOUR:   Thank you, Mr Gunson and Mr Estcourt, for your kind remarks.

I was never briefed to appear in the Supreme Court in Tasmania or the Federal Court sitting in Tasmania or in any High Court appeal from Tasmania and I only had a small amount of advisory work from Tasmania, but, like many people on the mainland, I have had a great affection for Tasmania for a long time and I have had the good fortune to have paid three prior visits here.

More than any other city in the country, I think, Hobart has preserved not only its institutional links with the earliest periods of European settlement, but also its architectural links.  Hobart was a great port in the nineteenth century, a great centre of Pacific trading activity, and the physical survivals of the wealth of the colony in those days have been much less damaged than their equivalents in the other colonies.  It is a great boon to modern Australians that in Hobart they breathe the last enchantments of the Georgian age and that those enchantments continue to enthral, but, as one contemplates the historic associations which the physical beauty of Hobart brings to mind, one is also reminded of the great contributions which Tasmanian lawyers have made, not only within Tasmania, but across the whole country.

Earlier this morning, we heard something of Andrew Inglis Clark, and it is not necessary to say anything more now about that remarkable man.  Let me mention a few more recent figures.  When one encounters a judgment composed by Sir Stanley Burbury, one is struck by the maturity of the wisdom they display.  Overlapping his time, there flourished a judge whose name will now forever be connected with Andrew Inglis Clark, namely, Mr Justice Neasey.  He attained a national reputation as an evidence scholar.  I know that my colleague, Justice Kirby, rightly admired his contributions to the labours of the Australian Law Reform Commission on that subject during his chairmanship, in which time Mr Justice Neasey served as a commissioner.

I would also refer, simply as one example of his skill, to his magisterial analysis of the law on the extremely difficult subject of marshalling in Commonwealth Trading Bank v Colonial Mutual Life Assurance Society Limited [1970] Tas SR 120. Not every commentator has agreed with Mr Justice Neasey’s conclusions, but all have praised their intellectual power. Then, a legal generation later, came Mr Justice Zeeman. Well‑informed lawyers across Australia joined the local profession in lamenting the loss which we all suffered in his untimely death.

Let me conclude by paying an inadequate tribute to one great Tasmanian, a lawyer, certainly, but more than a lawyer.  Although Sir Guy Green has been, until very recently, active on the legal and public scene, and happily remains in the fullness of his vigour, it is not inappropriate to say something very soon after he has laid down the last of the many public offices he adorned.  His was a unique career of dedicated service; first on the judiciary, culminating in his long tenure as Chief Justice, then as Governor.  I well remember two thoughtful speeches he gave in that capacity when opening two national conferences which were held in Tasmania during his term of office. 

When a divisive crisis took place earlier this year and it was necessary that an administrator be appointed to exercise the executive power of the Commonwealth of Australia until a new Governor‑General could take up office, he served as that administrator for some months, calmly, wisely, and with complete dignity.  It was fortunate that, in its hour of need, the country was able to call upon so capable a man.  His conduct of affairs reflected considerable lustre on the society and the legal profession from which he sprang.

I look forward to future dealings with the Tasmanian legal profession and to frequent visits here, annually, if the demand of litigants is sufficient, but, if not annually, at least as frequently as possible.

I thank you all for your attendance.  The Court will now adjourn for a short time.

AT 10.57 AM THE COURT ADJOURNED