Ceremonial - Nettle J - Welcome Sydney

[2015] HCATrans 55

[2015] HCATrans 055

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 GEOFFREY NETTLE

AT

SYDNEY

ON

FRIDAY, 13 MARCH 2015, AT 9.14 AM

NETTLE J

Speakers:

Ms J. Needham, SC, President of the Bar Association of New South Wales

Mr J. Eades, President of the Law Society of New South Wales

TRANSCRIPT OF PROCEEDINGS

NETTLE J:   Ms Needham.

MS J. NEEDHAM, SC:   May it please the Court.

Your Honour, five weeks have passed since Attorney‑General Brandis and speakers from the independent Bars welcomed you to the High Court Bench at a ceremonial sitting in Canberra.  Those speakers paid tribute to your intellectual rigour, legal scholarship, prodigious work ethic and excellence in the Victorian Court of Appeal.

Your Honour, such an orchestrated display of, dare I say it, flattery can be difficult to follow, much less repeat, and given the limited time available I cannot begin to recount the long list of your impressive academic qualifications, specialist expertise in revenue and commercial cases, contributions to professional standards at the Victorian Bar and many significant judgments upheld by the High Court.

Instead, on behalf of the barristers of New South Wales, may I extend my sincerest congratulations on your appointment and a warm, unashamedly parochial, welcome to the Sydney Registry of the High Court.

At the same time, I wish to pause to acknowledge the traditional custodians of the land on which this Court now stands and pay my respects to their elders, past and present.

Your Honour, my task is made even more difficult by the fact that your speech in reply in Canberra anticipated quite shrewdly some of the welcoming remarks I wish to make.  You recalled vividly your first significant exposure to the High Court, some 40 years ago, which just happened to involve instructing one of our Bar’s more eminent Queen’s Counsel, Tom Hughes.

Coincidentally, presiding that day in Melbourne was a former President of the New South Wales Bar Association, Chief Justice Sir Garfield Barwick.  You recalled marvelling at the way Barwick’s irascibility and intense verbal hammering appeared to run off Hughes like water off a duck’s back.

Your Honour’s impressions of robust advocacy by, and exchanges between, members of the New South Wales Bar and the Bench are consistent with those made by other High Court Justices whom we have welcomed to Sydney.  The honourable Justice Keane, a Queenslander, was once the guest of honour at the New South Wales Bench and Bar dinner.  He likened the tone of advocacy at other Bars to Oscar Wilde’s “The Importance of Being Earnest” which contrasted with the tone of the Sydney Bar which he said was akin to Macbeth.

The Bar Association records show that you were admitted to the New South Wales Bar in September 1986.  As an aside, I note that your application for a practising certificate was remarkable for its unblemished calligraphy.  It demonstrates both attention to detail and a deep appreciation for the aesthetics of the written word.

According to my somewhat limited research, admittedly, your Honour appeared in a number of important cases here in Sydney.  Most of your Honour’s cases in New South Wales were before the Federal Court Sydney registry, including Phillip Morris (Australia) Ltd & Ors v Nixon, Copperart Pty Ltd v Commissioner of Taxation, Commissioner of Taxation v Pantral Pty Ltd, Macquarie Health Corporation v Federal Commissioner of Taxation, Morlea Professional Services v Richard Walter, San Remo Macaroni v Commissioner of Taxation and Commissioner of Taxation v Richard Walter.  I do sense a theme.

In the Supreme Court of New South Wales you appeared in Fedsure International v Financial Services Group, and the Bank of America v The Bank of New York before the Court of Appeal in 1994.  Furthermore, since your Honour’s appointment to the Supreme Court of Victoria in 2002, and your elevation to the Court of Appeal in 2004, your decisions are often cited by the superior courts here in New South Wales.

Your Honour’s appointment was greeted with enthusiasm, not just from the legal profession, but from the fourth estate as well, not that they did not try to find fault.  The worst that The Australian’s legal affairs editor, Chris Meritt, could say that while your Honour is no judicial rock star like Michael Kirby, your appointment appears to be bulletproof, to which I say, indeed.

On behalf of the New South Wales Bar, I welcome your Honour back to Sydney and extend our warmest congratulations on your appointment to the High Court.

May it please the Court.

NETTLE J:   Mr Eades.

MR J. EADES:   It is an honour and a privilege to congratulate your Honour on your appointment.  It has been universally applauded, and on behalf of the solicitors of New South Wales, we welcome you to the harbour city.

I have attended several of these swearing‑in and welcoming speeches, and being at the end of the line I have a large pen which crosses out all the things that the speech writers have organised, and I was tempted to formally tender the transcript of your Honour’s swearing‑in.  Yet, in that swearing‑in on 3 February you issued a modest challenge to me and to others in my position.  You remarked about how the people were very kind in not addressing certain issues.  I wish to address those issues.

I heard a rumour recently that when you received the call from the Attorney‑General with news of your appointment your Honour answered the phone with a very beautiful welcome, “Go ahead, make my day”.  If, indeed, true, I am not sure if such a statement would have made an immediate, if not sudden, impact.  It was further rumoured, but also unsubstantiated, that reference to your age provoked an outburst of a Rolling Stones classic, “Time is on my side; yes, it is”.

I note that our last High Court Judge welcome to Sydney for the honourable Stephen Gageler took place on the anniversary of the Ides of March.  Today is an equally auspicious day, and it may be unsettling for some, while provoking unusual behaviours from others, particularly litigants.  With that in mind, perhaps your Honour could claim mitigating circumstances should you lead to channel Clint Eastwood during today’s special leave applications.

Take, for example, an immortal quote, “Ever notice how you come across someone once in a while that you should not have messed with?  That is me”.  It will give a great start to the leave list this morning.

Whilst Sydney has not only the highest proportion of legal practitioners, it was world class facilities, infrastructure, lifestyle, climate – if you like humidity – and a mecca for sporting enthusiasts.  I come from the country.

As keen sailor of the one design Jubilee Class 18 footers, your Honour is no doubt aware that the Victorian yacht was built in the jubilee year of the reign of the first yachtsman of the empire ‑ your Honour is nodding – the late King George V.  However, you may not be aware that the Jubilee Class boatbuilders were responsible for the construction of a boatshed, slipway and pontoon at Greenport, Newport, now the site of the Royal Prince Alfred Yacht Club.

The year was 1938.  To mark the official opening of the shed some 22 Jubilee Class yachts competed at Pittwater, so while the Mexicans south of the border were innovators of the class, Sydney can offer your Honour the opportunity to indulge that sport which will be more exciting than trying to do it on Lake Burley Griffin.

These boats are known for their ability to handle all kinds of conditions – gale forces, heavy seas or skim along with the slightest breeze.  If I were to draw an analogy, your Honour has also proved capable of handling a diversity of legal matters from the highly sensitive to the mundane.  I am reminded that Sir Garfield Barwick, who was referred to earlier by my learned friend, once described his practice at the Bar as “a dog’s breakfast”.

Likewise, your ownership of the first Jaguar, 1946 Mark IV, with its mantra, “Grace, space and pace” is perhaps reflective of your Honour’s approach and demeanour.  And speaking of pace, I understand that your Honour is a marathon runner, so you might like to step up into Sydney’s ultra marathon some time this year in September; it is only some 50 kilometres and it is over a spectacular scenic course.

On behalf of the solicitors of New South Wales, we look forward to you serving, sir, and we welcome you to the city of Sydney.

May it please the Court.

NETTLE J:   Your Honours, ladies and gentlemen, Ms Needham and Mr Eades, thank you all very much indeed for your welcome, most innovative and generous as it is.

Truth to tell though, it is a little overwhelming, if only because, after being welcomed, as has been observed, in Canberra on 3 February, and since then on being welcomed on each of the first occasions I have sat in Melbourne, Adelaide and now Sydney, I suspect I am getting perilously close to the point of having been generously and lavishly welcomed on more occasions than weeks that I have been in the job.

That is by no means to say, however, that it is anything but a thrill and a pleasure to be here this morning and to be welcomed by the New South Wales profession as I am.

Nigh on 40 years ago now, when I was a young solicitor in Melbourne, I worked for a while under one of the partners of the firm who was responsible for a French multinational corporation that had its Australian headquarters here in Sydney.  From time to time, for one reason or another, he had to come up here to advise them and after I had been working under him for a while he took to bringing me along too; I suspect probably to carry the bags.

The point of the story for present purposes, however, is that each time we would come up here he would say to me in his inimitable fashion, “going to Sydney is like going to Paris”, which for him meant like going from London to Paris, because, although it was hard work, it was different, cosmopolitan, sophisticated, exciting and ultimately very gratifying.

As a barrister, as has been observed, I sometimes had the good fortune to be briefed to appear in Sydney, either in the Supreme Court or the Federal Court of Australia.  As a consequence, I had the privilege of meeting and being opposed to what I regarded as some of the finest counsel in Australia.  It also gave me the chance to appear before some of the great judges of the day, both at first instance and before what was then the only dedicated and, undoubtedly, best intermediate appellate court in the country.

Now that I have been appointed to this Court, and particularly on a day like today, when we are sitting in Sydney, I am conscious, once again, of being back amongst some of the best counsel and judges in Australia; albeit no longer opposed to or in front of them.

If I may respectfully say so, therefore, it is very pleasing to be back here in Paris.  It is hard work, but it is different, it is cosmopolitan, sophisticated and exciting and ultimately it is very gratifying.

Ladies and gentlemen, thank you all for your attendance here today and the honour which you do me by your presence.

The Court will now adjourn to reconstitute.

AT 9.25 AM THE MATTER WAS ADJOURNED