Ceremonial Sitting - Farewell to the Honourable Justice Callinan - Melbourne

[2007] HCATrans 391

[2007] HCATrans 391

H I G H   C O U R T   O F   A U S T R A L I A

SPECIAL SITTING

FAREWELL TO

THE HONOURABLE JUSTICE IAN CALLINAN, AC

AT

MELBOURNE

ON

FRIDAY, 3 AUGUST 2007, AT 9.31 AM

HAYNE J:   Mr Shand.

MR M. SHAND, QC:   May it please the Court, I appear on behalf of the Victorian Bar and the Law Institute of Victoria.

On this the last occasion on which your Honour Justice Callinan sits in Melbourne as a member of this Court, the Victorian profession extends to your Honour our warm congratulations and thanks for your years of distinguished service to the law.  We were particularly delighted that last night your Honour could enjoy the hospitality of the Commercial Bar Association.

Your Honour came into the law the hard way, working full‑time and studying part‑time. 

Your father had served with the Royal Australian Air Force in New Guinea in World War II.  Ill health arising from his war service forced his early retirement on a veterans’ TPI pension. 

At your welcome to this Court, you acknowledged the “great sacrifices” of your parents in supporting your education.  You also had a government scholarship at school and a Commonwealth scholarship at university.

Modestly, you said recently, “I didn’t go to university full‑time”.  That was something of an understatement.  The Oxford Companion to the High Court relates that your Honour worked as a clerk in the Department of Immigration in the first year after school.  However, that year, 1956, you also did first‑year law.

Your Honour served five years[1] long articles with the Brisbane city firm of Feather, Walker & Delaney.  Obviously that firm regarded you highly because it instructed Mr Octavius North of counsel to represent you before the Full Court of the Queensland Supreme Court for an order to exempt you from the requirement of Latin.

[1] In fact Callinan J served three years in articles and then worked as a law clerk for a year before graduating LLB from the University of Queensland.

Typically those serving long articles worked all day and took their law courses at night, qualifying for admission to practice, but not qualifying for the LL B degree.  Your Honour did the additional courses and graduated with the degree as well.

Taking into account your five years long articles, you had the best part of 10 years in solicitors’ offices, also attaining partnership in the firm of Conwell & Co.  That substantial foundation as a solicitor is something in which I know the Law Institute, for whom I also speak today, takes considerable pride.

Your Honour then had an outstanding career at the Bar.  You appeared in practically every court and tribunal, from the Judicial Committee of the Privy Council down, and in practically every area of law; industrial law, family law, commercial law, town planning, defamation and, as a junior-junior, you had a retainer from the waterside workers’ union and represented their members in personal injuries claims.

You also served the profession with extraordinary energy and dedication, serving as President of both the Queensland Bar Association and the Australian Bar Association and, for example, as an honorary director of Barristers Chambers Limited from 1974 to 1991, a member and then Chairman of the Queensland Barristers Board, and for 17 years as an honorary member of the Council of Law Reporting.

In your appointment to this Court directly from the Bar, you joined, in modern times, the late Sir Keith Aickin, Sir Daryl Dawson and the Honourable Mary Gaudron.

Your Honour has been a staunch defender of the independent Bar whose principal role, you have stated, is to assist in the ordinary and transparent, that is to say, public resolution of disputes in a civilised community.

Your Honour has also spoken of the effectiveness of consensual mediation and other forms of dispute resolution in saving the State and litigants money.

Your Honour’s legal writing has brought special rewards to its readers - judgments, clear, incisive and at times passionate.  I call to mind your Honour’s dissenting judgment in the Work Choices case in which you characterised the legislation as an act of constitutional spoliation.

At your swearing in you confessed that you came to this Court at, and I quote, “a somewhat older age”.

Your Honour has served 9½ years on the Court and are about to be taken from the Court by the age limit introduced by the constitutional amendment in 1977.  Such an arbitrary requirement gives pause to question its utility.

It has been described by Tom Hughes QC as “the product of an anachronistic misconception that people who have led an active and useful life are over the hill at age 70 and that they have reached, as it were, the bank of the river Styx”.

Your Honour’s retirement is a huge loss to the law.  If there can be any compensation to the public, it may well be in the prospect of more novels from your Honour’s pen - whodunits, murder mysteries and tales of adventure and travel that will bring great pleasure to their readers and doubtless much satisfaction to your Honour.

At the new silks dinner a few years ago your Honour spoke of the parallel between the Bar and the stage.  You told the story of the young actor playing defence counsel alongside an old stager as the judge.  The young actor was relieved that the judge had no lines.  On the first night after their scene together, the young actor rushed from the stage in tears.  The stage manager asked what was wrong.  “The swine drank the ink from the inkwell during my main speech!”.

No inkwells to hand today, mercifully, your Honour - they belong to a past era, but we do pay tribute to your Honour’s service to the law and on this Court, and to your passionate support and defence of the independent Bar.

On behalf of the Victorian Bar and the Law Institute of Victoria, representing the barristers and solicitors of this State, I wish your Honour and Mrs Callinan every joy and happiness in retirement.

May it please the Court.

HAYNE J:   Thank you, Mr Shand.  Justice Callinan.

CALLINAN J:   Thank you, Mr Shand, for your good wishes and, I am bound to say, exceedingly generous remarks.

No one who has appeared in this Court, let alone anyone who has had the honour and the good fortune to sit upon it, could fail to be conscious of the high standards of his or her predecessors and, in the case of Sir Owen Dixon, unattainable standards.

I mention Sir Owen Dixon because he was the son of Victoria and indisputably the Court’s finest Judge.  That is not, of course, to disparage other of Victoria’s famous sons, including Sir John Latham and my almost immediate predecessor, Sir Daryl Dawson, for whom also I have the greatest admiration.

When I came to the Court I was also conscious of the fact that I was the first person to be appointed directly from the private Bar since Sir Keith Aickin, another Victorian some 22 years earlier, Sir Daryl Dawson having been Solicitor‑General at the time of his appointment.  I had seen Sir Keith Aickin arguing cases in this Court and had appeared before panels of which he was a member several times.  I never had the good fortune to appear with him or the ill luck to have to oppose him.  His formidable talents as an appellate advocate have made him a byword for excellence throughout the courts of the nation for many years.

Although I had, before my appointment, appeared in the Federal Court and tribunals in this State it remains a matter of regret that I have never appeared in the Supreme Court of Victoria.  It is too late to repair that omission now, but that does not mean that I do not continue to regard that court as being consistently, over the years, as good a court as any throughout the common law world.  It is not surprising that it is not the source of very much work for us.

Not all appointments to this Court are greeted with universal acclaim, particularly if the appointee has, on occasions, been in the public eye by reason of, for example, the holding of unpopular brief.  I had my share of detractors.  On this occasion I acknowledge my gratitude to the Bar of this State for the support that it gave me at that time.

I have already mentioned fortune and luck.  I have certainly had my share of that too.  I do not think that, with a few exceptions, anyone can come to this Court without it.  I say this because of the great strength of the Bar and the Benches of this country, practically any of which is well capable at any time of producing candidates fit for appointment to the Court. 

Inevitably, every time an appointment is made, some very good people miss out.  That, no doubt, helps to explain the speculation in which the media and the profession indulge when a Judge’s retirement is imminent.  That is only part of the reason.  No lawyer could deny that the profession is heavily into speculation, if not to say gossip about legal affairs.

Mr Shand, you have mentioned compulsory retirement.  I know views differ on this.  For my own part, I am in favour of it, not only because I am feeling a little tired, but also because I think every institution benefits from rejuvenation and it is in the interests, I think, of the institution of the Court that people go and that they are replaced, when their time comes, by vigorous younger people.

I conclude by expressing the hope that I have not strayed too far from Sir Owen Dixon’s precept offered on his swearing in as Chief Justice of this Court 55 years ago.  “Lawyers are often criticised because their work is not constructive.  It is not their business to contribute to the constructive activities of the community, but to keep the foundations and framework steady.” 

Thank you very much.

AT 9.43 AM THE COURT ADJOURNED