Ceremonial Sitting; On the Occasion ; of; the Swearing-in ; of; the Honourable John Dyson Heydon; As; A Justice of the High Court of Australia

[2003] HCATrans 558

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

CEREMONIAL SITTING

ON THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE JOHN DYSON HEYDON

AS

A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

ON

TUESDAY, 11 FEBRUARY 2003, AT 10.15 AM

Coram:

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Right Honourable Sir Harry Gibbs GCMG, AC, KBE, retired Chief Justice of the High Court

The Honourable M. Gaudron, retired Justice of the High Court

Seated behind the Bench were the following dignitaries:

The Honourable A.B. Nicholson AO RFD, Chief Justice of the Family Court of Australia

The Honourable D.K. Malcolm, AC, CitWA ,Chief Justice of the Supreme Court of Western Australia

The Honourable M.E.J. Black, AC, Chief Justice of the Federal Court of Australia

The Honourable J.H. Phillips, AC, Chief Justice of the Supreme Court of Victoria

The Honourable J.J. Doyle, AC, Chief Justice of the Supreme Court of South Australia

The Honourable C.J. Cox, AC, RFD, ED, Chief Justice of the Supreme Court of Tasmania

The Honourable P. de Jersey, AC, Chief Justice of the Supreme Court of Queensland.

The Honourable J.J. Spigelman, AC, Chief Justice of the Supreme Court of New South Wales

The Honourable T.J. Higgins, Chief Justice of the Supreme Court of the Australian Capital Territory

Members of the Judiciary seated within the Court:

The Honourable Justice B.A. Beaumont, Federal Court of Australia

The Honourable Justice P.D. Finn, Federal Court of Australia

The Honourable Justice A.R. Emmett, Federal Court of Australia

The Honourable Justice P.G. Hely, Federal Court of Australia

The Honourable Justice P.M. Jacobson, Federal Court of Australia

The Honourable Justice M.M. Finn, Family Court of Australia

The Honourable Justice J. Faulks, Family Court of Australia

The Honourable Justice R.P. Meagher, Court of Appeal, New South Wales

The Honourable Justice C.S.C. Sheller, Court of Appeal, New South Wales and Australian Judicial Conference

The Honourable Justice J.P. Bryson, Supreme Court, New South Wales

The Honourable Justice W.V. Windeyer, AM, Supreme Court, New South Wales

The Honourable Justice C.R. Einstein, Supreme Court, New South Wales

The Honourable Justice K.R. Handley, AO, Supreme Court, New South Wales

Mr R.J. Cahill, Chief Magistrate, Australian Capital Territory

Mrs M.K. Doogan, Magistrate, Australian Capital Territory

The Honourable Justice P.G. Underwood, Australian Institute of Judicial Administration

At the Bar Table the following persons were present:

The Hon. D.R. Williams, AM, QC, Attorney-General for the Commonwealth

Mr D.M.J. Bennett, QC, Solicitor-General for the Commonwealth

Mr T.I. Pauling, QC, Solicitor‑General for the Northern Territory

Mr R.J. Meadows, QC, Solicitor‑General for Western Australia

Mr M.G. Sexton, QC, Solicitor‑General for New South Wales

Mr C.J. Kourakis, QC, Solicitor‑General for South Australia

Mr R.K. Heinrich, President of The Law Council of Australia

Mr A.J. Glynn, SC, President of the Australian Bar Association

Mr R.D. Curtain, QC, past-President of the Australian Bar Association

Mr R. L. Gotterson, SC, President-elect, The Law Council of Australia

Mr B.R.C. Hayes, QC, President of the South Australian Bar Association

Mr J.T. Rush, QC, Chairman of the Victorian Bar

Mr J.D. Harris, SC, President of ACT Bar Association

The Hon R.I. Viner AO, QC, President of the Bar Association of Western Australia

Mr B.W. Walker, SC, President of the New South Wales Bar Association

Mr J.H. Reeves, QC, President of the Bar Association of the Northern Territory

Mr D.J. Porter, QC, President of the Tasmanian Independent Bar

Mr R. Benjamin, President of the Law Society of New South Wales

Mr T.M. Sullivan, President of the Queensland Law Society Inc

Mr A.N. Siopis, SC, representing the Law Society of Western Australia

Mr W.M. Redpath, representing the Law Society of the Australian Capital Territory

The Hon T.E.F. Hughes AO, QC

Mr D.F. Jackson, QC

Mr F.M. Douglas, QC

Ms S.M. Crennan, QC

Mr D.J. Bugg, SC

Ms R.S. McColl, QC

Mrs A.C. Bennett, SC

Mr I.G. Harrison, SC

Mr A.J. Meagher, SC

Mr H.C. Burmester, QC

Mr M.A. Dreyfus, QC

Mr A.S. Martin, SC

Mr R.C. Refshauge, SC

Mr J.T. Gleeson, SC

Mr J.D. Harris, SC

Mr J.J. Webster, SC

Mr T. Molomby, SC

Mr D. Colagiuri, SC

Mr P.J.P. Power. SC

Mr R.D. Harding, SC

Mr D.J. Russell, SC

Mr C.S. Leahy, SC

Mr M.B. Williams, SC

Mr M.A. Elkaim, SC

Mr D.B. McGovern, SC

Mr J.L.A. Bennett, SC

Mr F.G. Lever, SC

Mr G.J. Hatcher, SC

Mr I.D. Faulkner, SC

Mr G.O. Blake, SC

Mr R.W. Seton, SC

Mr D.R. Campbell, SC

Ms A.P. Stenmark, SC

Mr S.G. Campbell, SC

Mr I.H. McClintock, SC

Mr J.E. Marshall, SC

Mr R.J. Webb, SC

Mr B.J. Knox, SC

Mr I.McN. Jackman, SC

Mr R.A. Hulme, SC

Mr P.M’C. Dowding, SC

Mr G.M.G. McIntyre, SC

Ms J. Crisford, SC

Mr E.M. Corboy, SC

Mr G.T.W. Tannin, SC

Mr D.G. Mullins, SC

Mr K.N. Wilson, SC

Mr G.A. Lewis, SC

Mr J.P. Leckie, SC

Mr P.F. O’Dwyer, SC

Mr P.N. Wikramanayake, SC

Mr V.A. Morfuni, SC

Mr T.P Tobin, SC

Mr J.W. St John, SC

Mr T.P. Murphy, SC

Mr A. Garantziotis, SC

Mr J.B Richards, SC

Mr T.J. North, SC

Mr P.D. Santamaria, SC

Mr B.N. Caine, SC

Ms F.I. O’Brien, SC

Mr F. Parry, SC

Mr C.D. Golvan, SC

Mr P.E. Anastassiou, SC

Ms M. Sloss, SC

Ms M.L. Quigley, SC

Mr M.L. Sifris, SC

Ms M. Kennedy, SC

Ms E. Hollingworth, SC

Ms P.M. Tate, SC

Mr P.A. Heywood‑Smith, QC

Mr M.T. Boylan, QC

Mr B.F. Beazley, QC

Mr D.C. Lovell, QC

Mr W.McF. Campbell, QC

Ms M.M. Gordon

Mr M.J. Leeming

Mr G. de Q. Walker

Mr E. Willheim

Dr M.A. Perry

Mr M.F. McDermott

Mr A.G. Diethelm

Speakers:

The Honourable D. Williams, AM, QC,  Attorney-General for the Commonwealth

Mr R.K. Heinrich, President of the Law Council of Australia

Mr A.J. Glynn, SC, President of the Australian Bar Association

Mr B.W. Walker, SC, President of the New South Wales Bar Association

TRANSCRIPT OF PROCEEDINGS

HEYDON J:   Chief Justice, I have the honour to announce that I have received a Commission from his Excellency the Governor-General appointing me a Justice of the High Court of Australia.  I now present the Commission to your Honour.

GLEESON CJ:   Mr Principal Registrar, please read aloud the Commission.

PRINCIPAL REGISTRAR:

Commission of Appointment of a Justice of the High Court of Australia

I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution, appoint the Honourable John Dyson Heydon, a Judge of the Court of Appeal of New South Wales, to be a Justice of the High Court of Australia commencing on 11 February 2003 until he attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 19 December 2002.   Governor-General, by His Excellency’s command, Daryl Williams, Attorney‑General.

GLEESON CJ:   Justice Heydon, I invite you to take the Oath of Allegiance and of Office.

HEYDON J:   I, John Dyson Heydon, do swear that I will bear true allegiance to Her Majesty, Queen Elizabeth the Second, Her Heirs and Successors, according to law, that I will well and truly serve Her in the Office of Justice of the High Court of Australia and that I will do right to all manner of people, according to law, without fear or favour, affection or ill‑will.  So Help Me God.

GLEESON CJ:   If you will subscribe the oath then I will attest your signature.  Mr Principal Registrar, will you please place these documents amongst the records of the Court.

PRINCIPAL REGISTRAR:   Yes, your Honour.

GLEESON CJ:   Justice Heydon, I congratulate you on your appointment and invite you to take your seat on the Bench and proceed to the discharge of the duties of the office a Justice of the High Court of Australia.

HEYDON J:   Thank you, Chief Justice.

GLEESON CJ:   Mr Attorney.

MR WILLIAMS:   May it please the Court. 

It is my great pleasure and privilege to be here today at this special sitting of the High Court of Australia to welcome the Honourable Justice John Dyson Heydon to the Bench.  On behalf of the Australian Government and the people of Australia, I extend to your Honour congratulations and best wishes on your appointment to the Bench of the highest court in our country. 

Your Honour’s appointment is a fitting tribute to your personal qualities and already distinguished career ‑ one in which your contribution to the exposition and application of the law is already highly acclaimed.  Your Honour comes to this Court after a diverse and distinguished career in the law as:  first, an academic; later, an eminent barrister; always, a prolific author; and most recently, an influential judge.  Your Honour’s appointment to the High Court is the 44th since its establishment close to a century ago. 

Your Honour has the distinction of being only the fifth appointee who was born outside Australia.  Your predecessors in this group were the very early appointees, Sir Samuel Griffith from Wales, Henry Higgins and Sir Frank Gavan Duffy from Ireland, and more recently Sir Ninian Stephen from England.  However, your Honour was born in another part of the Commonwealth - in Ottawa, Canada.  From your early beginnings in Canada, your Honour had an international education.  As the son of a diplomat, you were educated in a number of cities around the world, including London, Wellington, Rio de Janeiro, and finally in your hometown, Sydney. 

You completed your education at Shore School and St Paul’s College at the University of Sydney.  You graduated from that university in 1964 with a Bachelor of Arts degree with First Class Honours and the University Medal in History. 

In 1964, your Honour was awarded a Rhodes scholarship to study law at Oxford University.  Your commitment to study was justly rewarded when you were awarded the Martin Wronker prize for the top first‑class honours degree in law in 1966.  Not content to rest on your laurels, you completed the degree of Bachelor of Civil Law the following year and were awarded the Vinerian Scholarship for the best results in that course. 

Your Honour brings to this Court an outstanding international reputation as a jurist.  This reputation is contributed to in no small part by your highly respected academic background.  You were a Fellow of and Tutor at Keble College, Oxford, from 1967 to 1973, and you lectured in Evidence and Trusts at the Inns of Court School in London from 1969 to 1972. 

In 1973, your Honour returned to Australia as Professor of Law at Sydney University Law School, where you nurtured the legal skills of hundreds of students in what had fast become your areas of specialty, namely, Equity, Evidence, Commercial and Company Law, and Restrictive Trade Practices.  Following a tradition of “firsts” you became the youngest person to head a law school in Australia when you were appointed Dean of the Sydney University Law School in 1978. 

In addition to being an experienced educator, your Honour is a gifted academic writer, and in the course of your career you have written extensively on a variety of legal subjects.  Your first book, The Restraint of Trade Doctrine, was published in 1971 and was quickly followed by numerous other learned volumes, including Economic Torts, a Casebook on Evidence and, in 1975, Cases and Materials on Equity which your Honour co‑edited with Messrs Gummow and Austin, as they then were.  Several editions of each followed.     Your Honour has also published a large number of journal articles on topics of interest throughout the common law world.  A perusal of a list of your published works reads like an encyclopaedia from Equity to Expert Evidence, from Torts through to Trade Practices and Trusts. 

From 1980, your Honour eased yourself out of academe and commenced practice at the New South Wales Bar.  Your Honour joined the eighth floor of Selborne Chambers, where you read with Justice Hely, as he now is, and you were privileged to work with other senior barristers, including the now Chief Justice Gleeson and Justices Meagher and Gummow, and the Honourable Tom Hughes, QC.  These mentors and colleagues have been for you over many years sources of inspiration, challenge and support, as I venture you have been for them. 

Your Honour’s personal work habits are extraordinary.  It has been said about your Honour that you have always taken on a workload that should have been outlawed by some post‑Dickensian Factory Act, and I trust that such an allusion will gratify you.  Your Honour has been described as an “old‑fashioned intellectual - in the very best sense”.  As a classical scholar you are blessed with a passion for and knowledge of history, and allusions to historical events and seminal statements by history’s characters regularly enliven your own conversation and observations. 

Your Honour’s aptitude for working extraordinary hours is well demonstrated by the enthusiasm with which your Honour took on several editing roles concurrently with developing your practice at the Bar.  Editing any of the Australian Law Reports, the New South Wales Reports and the Australian Bar Review is a significant task.  Your Honour did all three at the same time, as well as being a member of the Bar Council from 1982 to 1987.  At the Bar, your Honour developed quickly a very successful practice dealing with a wide range of matters, including what were by that time your longstanding specialties of Trade Practices, Company Law, Equity and Trusts.  Your Honour appeared regularly in the High Court, the Federal Court and the State Supreme Courts – experience which will undoubtedly stand you in good stead in discharging your duties in this Court. 

Your Honour’s expertise at the Bar was recognised early when you were appointed Queen’s Counsel in 1987 after only seven years in full‑time practice.  Eventually, your Honour became floor leader of the eighth floor, Selborne Chambers.  In that role, I am advised that your Honour’s door was always open and you were a superb mentor to juniors in chambers.  It was a very happy floor under your leadership.  Although, apparently, no floor meetings were ever called or desired, it was said that “so benevolent was the dictatorship that no cries for reform were ever heard”. 

Whilst at the Bar, your Honour appeared in a number of high‑profile cases.  One notable case, whose subject matter riveted the nation, or at least the eastern seaboard States, was the famous Super League Case in 1996.  It is fitting that your Honour was involved in the case which exposed the sport‑loving Australian public to the complexities of the law of trade practices, contract, tort and equity.  Although evidently a dedicated scholar, your Honour has always been a keen sportsman, playing cricket and rugby at the University of Sydney and at Oxford.  While I had the privilege of being at Oxford at the same time as your Honour, I regret I did not have the pleasure of observing your prowess in those particular fields of endeavour. 

It was apparent that your Honour’s love of football did not end with your playing days.  I am told that in the Super League Case, after successfully cross‑examining the famous 1970s Parramatta second rower, Dennis Fitzgerald, now CEO of the Parramatta Leagues Club, you approached him outside the court for an autograph – for one of your daughters, of course. 

Your Honour was appointed to the Supreme Court of New South Wales and the Court of Appeal in February 2000.  During your three years on the Bench, you have adorned volumes of the New South Wales Law Reports with written judgments that have had a profound impact on the law.  Of particular note is your contribution to the law of expert evidence given in the Makita v Sprowles decision, in which you provided seminal guidance on determining the validity of expert evidence.  I have no doubt that your background as an appellate judge, an advocate and an educator, your fine personal attributes and your extensive experience in careful analysis and exposition of the law will serve you well in the discharge of the important duties of your new office. 

Your new brief is indeed a complex one.  Your Honour is joining this Court at a time when it is facing some challenges.  The challenge of ensuring that the law is contemporaneously relevant is ever present.  Another challenge is the ever‑increasing number of cases brought in Australian courts every year, and the High Court is no exception in this respect.  Along with the increase in litigation, there has been an increase in the number of self‑represented litigants.  In the year 2001‑2002, self‑represented litigants were responsible for 30 per cent of the matters filed in this Court. 

While the reasons for this growth in the numbers are complex, it is clear that self‑represented litigants raise particular issues for the Court with respect to the increased workload, complicating the conduct of litigation and a disproportionate use of Court resources.  This problem is not unique to the High Court, but I know that it is felt acutely by the Judges of this Court.  The government is sympathetic to the Court’s position, and it is clear that a solution or, more likely, a series of solutions must be sought.  Whatever the solution, we must always remain mindful of the need to ensure that access to the justice system is not unfairly curtailed for those who are, for whatever reason, unable to secure legal representation. 

Your Honour’s appointment to the High Court is a fitting recognition of your outstanding achievements in and contribution to the law in Australia.  I am confident that you will continue your significant contribution through important work on the High Court. 

Your wife, Pamela, and your four children, Victoria, Christina, Nicholas and Alexandra, most of whom, I understand, are able to be here today to share this day with you, must be very proud indeed.  I offer my congratulations and my best wishes on your appointment. 

GLEESON CJ:   Mr Heinrich, President of the Law Council of Australia. 

MR HEINRICH:   May it please the Court.

Today marks a hugely significant event for both an individual and an institution.  For an Australian lawyer there is no greater honour or responsibility than to serve on the High Court of Australia.  To achieve such an appointment the lawyer is recognised as a pre-eminent leader in their field having a depth of legal and life experience to equip them to play a pivotal role in the legal profession and in the government of their nation.

For the institution of the High Court the appointment of a new Judge reflects a process of continuation and renewal.  Including your fellow Judges, there have only been 44 members of this Court as it reaches its centenary year later this year.  With such a small number of judges over 100 years each appointment is of great importance.  The reputation of the Court and in many ways the strength of the concept of the rule of law depends on the quality of the appointments to this Court.

It is with great pleasure that I am able to say that with your Honour’s appointment the Australian legal profession believes the ability of the High Court to fulfil its seminal function in the Australian democracy will be enhanced. 

Your Honour’s academic career and achievements are outstanding and have been dealt with by the Attorney.  Your Honour served as a member of the New South Wales Bar Council from 1982 to 1987 and no doubt had a close understanding of the issues facing the Law Council at that time.  Since then you have been very generous in the time you have given in providing specialist advice to the Law Council without charge and we are very grateful to you for this.

Your Honour’s keen interest in the sport of rugby is well known.  You will now be spending a significant amount of time in Canberra and may well join the ranks of the enthusiastic supporters of the mighty Brumbies.  Your Honour, it is apparent that you join the Bench of the High Court after already making a huge contribution to the law and to the community in this country.  Your capacity for hard work, intellectual rigour and incisiveness is well‑known throughout the profession and is something to which I can personally attest.

It was my privilege and pleasure to brief your Honour over many years from the time you first commenced active practice at the New South Wales Bar in the 1980s up until the time you were appointed to the New South Wales Court of Appeal.  I must say that it was somewhat of a relief when you were appointed.  As not being a particularly early riser I am no longer troubled by your kind offers of 6 am early morning conferences.  The offers of such early morning conferences, however, were a mark of your Honour’s accommodating and obliging nature to assist, in particular, instructing solicitors with urgent and difficult matters even when your Honour was otherwise burdened with other matters or cases.

I will always appreciate your Honour’s help and guidance in relation to all of those matters in respect of which I briefed you, particularly in the medical insurance area.  I had hoped that one day, as an appellate judge, you may get the opportunity to revisit the issues considered in the United Kingdom case of the Medical Defence Union Ltd v Board of Trade with regard to discretionary assistance granted by medical defence organisations and whether or not it constituted insurance.  It is now unlikely that your Honour will have that opportunity if the Medical Indemnity Provincial Supervision and Products Standards Bill is passed by the Parliament.

The legal profession wishes you many happy and satisfying years in your new role and on behalf of the Law Council of Australia and all legal practitioners I congratulate you on your appointment and look forward to reading your judgments. 

Before concluding, on behalf of the Law Council of Australia, I would like to note the retirement of Justice Mary Gaudron.  Justice Gaudron was an outstanding member of the High Court and her contribution to the legal profession and the administration of justice in Australia is warmly regarded by the Law Council and the wider profession.

Justice Gaudron was a trailblazer in many respects, of course, most notably being the first and only woman to serve on this Court.  Undoubtedly, as a number of women holding senior positions in the legal profession increases there will be many other women to serve on the High Court in the near future.  This will be a development much welcomed by the Law Council.  May it please the Court.

GLEESON CJ:   Mr Heinrich.  Mr Glynn, President of the Australian Bar Association.

MR GLYNN:   May it please the Court.

On behalf of the Australian Bar Association I am delighted to welcome your Honour Justice Heydon to the
Bench of the High Court.

As has been said, your Honour brings to the Court the amazingly diverse background of gifted academic, prolific and respected legal author, talented counsel and highly regarded judicial officer.  The good standing of this Court is important to the fabric of Australian society and an appointment such as your Honour’s must give confidence to all observers that the high reputation which the Court justifiably enjoys will be maintained by such appointments as yours.

The Australian Bar takes justifiable pride in the appointment of former counsel of your Honour’s standing to this Court.  I have not had the benefit of appearing before or with or against your Honour, so what I say is gleaned from hearsay and writings and I hope your Honour will forgive me should there be any error of detail.

Your Honour was clearly headed for an outstanding career in the profession as a young man having earned first class honours in arts and being awarded a university medal in history, a subject in which your Honour is said still to maintain an interest.  On winning a Rhodes Scholarship, your Honour earned a Bachelor of Civil Laws with first class honours from Oxford and won the Vinerian Scholarship in the same year.

You returned to Australia from an academic career in London in 1972 taking up appointments firstly as Professor of Law at Sydney University and then later as Dean of the Sydney Law School.  Although admitted to the Bar in 1973 your Honour did not commence actual practice until about 1979 or 1980.  You took silk in 1987 after a mere seven years at the Bar, a remarkable feat and one which clearly marked your Honour as likely to be appointed to high office.

You have been a prolific writer of legal texts both alone and in collaboration with other gifted lawyers and have contributed greatly to the learning in those areas in which you have written.  After an outstanding career as a silk, your Honour was appointed to the New South Wales Court of Appeal in 2000.  It is reported that at your Honour’s swearing in as a judge of the court, you said:

The world has little understanding of the duty of the Bar to represent the unpopular, the unpleasant and the unfashionable.

It is both edifying and gratifying that someone who enjoyed your Honour’s outstanding career at the Bar marked your appointment with such a statement as is a hallmark of the independent Bar and one of which the Bar is, we say, justly proud.

May I on behalf of the Australian Bar congratulate your Honour on your appointment to this office and wish your Honour both success and enjoyment during your term as a Judge of this Court.  May it please the Court.

GLEESON CJ:   Mr Walker, President of the New South Wales Bar Association.

MR WALKER:   May it please the Court, for reasons not susceptible of rational explanation, the Law School at Sydney University hides its students well underground.  Nearly all teaching, particularly at undergraduate subjects at the core, like equity, was conducted in rooms which but for artificial lighting would be nothing but caves.  At any season they are unattractive.  In the middle of an academic year, coinciding with winter, they are even less attractive.  An undergraduate population does not rise early or does not rise early in a good or eager mood.  These are all matters of personal recollection on my part.

I share with many others, therefore, still some wonderment at the way at which at 8 am ‑ an hour which is far more extreme than the 6 am Mr Heinrich recalls from a remunerated legal practice – a crowded lecture hall well underground would attend your Honour’s equity lectures, not because it was compulsory and not because they were the only lectures, but because of your Honour’s strong expository style of a kind which even we, dimly understanding that we did not know enough, understood was not likely to be replicated to the same quality anywhere else.

Your Honour’s teaching style could not be described as having succumbed to any new-fangled techniques of pedagogy.  Conversation was not encouraged, of any kind, and there was no pretence on your Honour’s part that there was any intellectual, cognitive, academic, scholarly or legal equality of interchange between lecturer and lectured.  That approach had two great advantages: first, it was entirely accurate; and, second, it permitted those of us on the unfavourable side of the comparison to try and do something about bridging the unbridgeable gap.

Those qualities of strong, clear, unsentimental exposition stood your Honour in great stead as an advocate at the Bar.  You were, of course, literally a towering figure, having unwound your professorial figure from the customary seated position of lecturing and taking up practice at the Bar.  It was then a remarkable thing for the Dean of the Law School to come to the junior bar.  Your Honour carried off that remarkable feat remarkably well and your Honour soon came, figuratively, to tower at the Bar as well.

I respectfully dissent from what has been said from the Bar table this morning about your Honour’s extraordinary earliness in taking silk.  There are those who recall that it was not too early but, rather, too late when your appointment arrived.

The skills your Honour had as a barrister exhibiting your scholarly exposition did, however, come accompanied with one weakness, a weakness which turned into a strength upon your appointment to the Court of Appeal and which the Bar of New South Wales confidently regards as one of the virtues which will accompany you in your service and activities on this Court.  The weakness was usually indicated by a descent of almost impenetrable gloom on your part, mostly imparted to your juniors early in the morning and mostly not long before critical stages arrived in litigation.  Very occasionally with solicitors considered strong enough to bear the experience, the gloom was shared with them.

The gloom always ran on familiar lines:  “It would be an outrage for our client to succeed.  This is not just.  We are wrong.”  Some juniors had the robust Sydney approach to this, that the adversarial system required strong statements on both sides, that advocates were not judges and that there was a judge to decide the case.  Some were even rash enough to suggest to your Honour that you should lift your spirit of gloom, gird your loins, go to court and put the strong statement on one side “because”, the junior would say, “Mr Justice X will be there to decide the case”.  Calculated it may have been by the junior to lift your gloom but invariably whoever the X was, it would increase it very considerably.

That approach to justice and getting the right result, not treating it as a game to be decided by the rules of contest, was of course something that fitted you for your applauded appointment to the Court of Appeal which was both popular and well regarded in legal circles.  Everything that happened in the nigh on three years since then from your Honour’s activities as a judge on the Court of Appeal vindicated the applause for that appointment.  We repeat it for this appointment and if a Bar may be permitted, however illegitimately, to feel pride in the preferment of one of its own, the New South Wales Bar is unashamedly proud of what is happening today.

We wish you well in all of your discharge of your onerous office, and we simply note that when your Honour wrote last year in a collection of essays, your Honour concentrating on the role of the Equity Bar, you saw that for the better part of a century it could be said that the jurists on various benches had sown so that later generations would reap whirlwinds both in common law and in equity.  You concluded - perhaps more of the gloom -that we lived surrounded by a legal world drifting towards chaos.

Your Honour is now at the apex of the system.  It is an apex from which more than one broad field is supervised by this Court.  Your Honour’s activities, we are confident, will do something to contribute to this Court’s arrest of that drift towards chaos.  May it please the Court.

GLEESON CJ:   Justice Heydon.

HEYDON J:   Chief Justice, ladies and gentlemen, the resignation of Justice Gaudron has left an immense hole in the ranks of those who administer the judicial branch of our Federation.  She stood high among those best equipped for the task by capacity, by training, particularly at the hands of the late Mr Justice Hutley, by experience and by achievement.

The very favourable evaluation of her contribution on this Court which history is likely to make will rest on the personal impressions of thousands of people.  Let me offer just two. 

First, in oral argument, she never incurred the reproach of misleading advocates by maintaining an enigmatic silence in the face of a submission she did not understand or accept.  Bland inscrutability was impossible for a person of her temperament, convictions and powers.  She was in total command of what the learned Solicitor‑General for the Commonwealth is accustomed to refer to, somewhat euphemistically, as Socratic dialogue.

No one could complain of a want of opportunity to deal with any significant difficulty which struck her.  Her force of intellect and of personality could make these opportunities testing times for advocates.  They often had to summon up all their reserves of fortitude and calmness, but it was right of her to offer them.  And yet, if she realised that she had been misapprehending the problem or if she worked out for herself some possible solution to it, she would reveal her changed thinking at once.  She never left the pursuit of truth for the pursuit of victory.  But she did believe, like the old Yearbook lawyers, that by good disputation shall the law be well known.

Personal experience of her abilities in oral argument cannot survive oblivion in the minds of those who had it, but there is another benefit which will remain available for much longer.  Any lawyer attempting to analyse a novel or difficult problem can do no better than examine any relevant judgments of hers.  If they are read slowly, line by line, repeatedly, carefully and sympathetically, they create a much fresher and clearer vision of the issue.  One might not agree with either her reasoning or her conclusion, though very often one would, but the question of agreement is not to the point.  The value of her judgments lies not so much in compelling acceptance of a conclusion as in aiding readers to their own conclusions.  For that reason they will be read as long as any parts of the Commonwealth Law Reports continue to be read. 

I am honoured by the presence of Justice Gaudron here this morning.

The Court as a whole is honoured by the presence here today of Mr Anderson, the Acting Prime Minister; Senator Calvert, President of the Senate; Mr Andrew, Speaker of the House of Representatives; Mr Tirzu Beltran, representing the Dean of the Diplomatic Corps; the Chief Justices of the Federal Court, the Family Court and the Supreme Courts of the States and of the Australian Capital Territory; the Solicitors‑General for the Commonwealth, Western Australia, New South Wales, South Australia and the Northern Territory; the presidents of many bar associations and law societies; and many judges, judicial officers and practitioners from across the country.

I am especially grateful for the attendance of judges and their wives, both from the Supreme Court of New South Wales, in whose company my wife and I spent three most happy years, and from the Federal Court in Sydney.  I fear for the proper despatch of court business in Sydney today.

I note particularly the pleasure which many people are deriving from the presence of Sir Harry Gibbs.  He has shown to me his characteristic quiet and courteous friendliness ever since he introduced himself 30 years ago.  It is difficult to see how the model he set as a judge of the Supreme Court of Queensland, as a federal judge, as a Justice of this Court, and as Chief Justice of Australia, could ever be improved upon.

It is also good to see Mr W.J. Sinclair, whose name first appeared on the Solicitors’ Roll nearly 60 years ago.  Perhaps lapsing from his normal excellent judgment, he was kind enough to brief me in a large and important case at the start of my career.  For that I was, and remain, thankful. 

I am thankful too to all four speakers for their generous remarks this morning.

As he indicated, I have known the Attorney‑General for a long time.  I had various curious cases against him at the Bar – hard and evenly fought battles – in which he was imperturbable.  Barristers in those days sometimes attempted to upset him, just as political and media critics do now.  These efforts were, and always will be, futile, and I am at liberty to reveal now why that is so. 

When he and I were at the Oxford Law School together it was dominated by Mr P.B. Carter, fellow of Wadham College.  Older lawyers will remember a fine book of essays on evidence which he wrote with Sir Zelman Cowan.  He was a real presence in the faculty as a whole, in which he was then conducting a fierce reign of terror as an examiner.  But at Wadham College he consistently achieved outstanding examination results for his pupils by his mastery of torment as a teaching weapon.  So, to people not in Wadham, like myself and Justice Hayne and Chief Justice Doyle, he was baleful but not omnipresent.  Wadham pupils, on the other hand, could never escape him.

In Justice Hasluck’s book, Offcuts from a Legal Literary Life, will be found a striking and vivid portrait of Mr Carter.  The story is there told of Chief Justice Malcolm’s Christmas rugby tour.  He was a very good rugby player and was selected to play for the Oxford University Greyhounds on a tour of Belgium and France over Christmas.  He decided to move on to see Berlin and visit Norway as well.  In an evil hour these tidings came to Mr Carter’s ears.  The rugby player was summoned to the presence.  Mr Carter was tall, well built, striking looking and rather bleak, difficult to master in face‑to‑face dealings.  He informed the future Chief Justice that the time which was free of teaching over Christmas was not a holiday but a vacation and it was to be entirely devoted to work.  There could be no frivolities like touring.

The future Chief Justice then began a process of unsuccessful bargaining.  “Perhaps I could go if I left Norway out?”  “No.”  “What if I skipped Berlin, too?”  “No.”  “I could miss the Belgian leg?”  “No.”  So it went on.  In desperation, the future Chief Justice said, “Well, surely, I am entitled to have at least some sort of a break over Christmas?”  Mr Carter contemplated this novel idea in wonder and then murmured, “Morning or afternoon?” 

That was the tough school in which the Attorney–General’s formative years were spent and that is why he is incapable of being upset now.

There are two particular members of the legal profession to whom, as the Attorney indicated, I owe immense debts;  the Honourable T.E.F. Hughes QC and Mr Justice Meagher.  Everyone here will be familiar with their high intellectual and professional abilities.  I would now stress only a rarer trait, loyalty.  That is a trait which can seem widespread while the sun is shining but it is never revealed in a purer form than it is in them when they hear of a friend who is being affected by foul weather.

The institution to which I owe the greatest professional debt is the 8^th Floor Selborne Chambers where I practised for 20 years.  Its members have an outstanding record of contribution to legal literature.  I need refer only to the names of the late Mr Justice Glass, Mr Justice Meagher, Justice Gummow, Mr Ian Jackman, whose appointment as Senior Counsel was announced to this Court yesterday, and Mr Mark Leeming.  But the floor is not just to be compared to a group of Irish or Northumbrian Monks vainly trying to preserve civilisation through the strife of a new Dark Age.  Its leaders were masters at conducting the classical common law trial.

The late P.J. Kenny QC was a man of massive personal integrity.  He was of corresponding kindness except when it came to litigation.  He was prepared to accept that it might be foolish for citizens in dispute to start litigation and that litigation might not be an efficient way of resolving disputes, but he thought that once litigation had started, it was not for advocates to try to stop it.  The day of the trial was the day for accounts to be settled, with woe to the vanquished.  On that day, he thought, moderation was imbecility.  There was a duty to fight which could not be evaded or delegated.  It was wrong to fail to face up to it by hoping for kindness or concessions from the opponent or from the court.

These ideas are not fashionable but, Chief Justice, when the crunch comes, can the rule of law be protected by anything less? 

His colleague, the Honourable P.A. McInerney QC operated on slightly more moderate principles but did place one consideration on a pinnacle:  complete mastery of the facts no matter what effort was called for.  It is hardly surprising that when a sad event 10 days ago made it desirable he was immediately invited to return to public service, and it is even less surprising that he immediately responded to that call.  Among members of the floor present today of the veteran members apart from those I have already referred to, there are as well the Honourable John Kearney QC and the Honourable John Holt QC.  There are also present – I am glad to say – the two noble human beings who have successively held the onerous office of clerk, Mr W.J. McMahon and Miss D. Strathdee.

It is a truism that the families of lawyers do not have easy lives.  My family, like others, probably suffered less while I was on the Bench than in the years during which I was involved in the din and dust of life at the Bar.  Judicial life is calmer but it still imposes some strains.  The Egyptians made the lives of the Israelites bitter with hard bondage and caused them to sigh and groan.  Barristers can do the same to judges and the effect flows on to their families.

I am therefore most grateful for the endurance and support of my wife, Pamela, and our four children, Victoria, with her husband, Paul, Christina, Nicholas and Alexandra.  They are all here today, except Christina.  I apologise to you, Chief Justice, for her acceptance and then her rejection of the invitation but she has wisely accepted a subsequent invitation to what is for her a much more important engagement in Sydney.

Like most children, I owe irredeemable debts to my parents.  It is natural that the greatest happiness generated by events like today’s is that experienced by parents.  It is also natural that such events usually occur at a time in the life of a child when the parents have died.  So it is with me.  However, sharp memories of my childhood in this city have been revived by the sights and sounds and contrasting smells of Canberra as I walked across to the Court yesterday and today.

It was on another late summer day that my father first walked to work in this city 67 years ago.  He was the grandson of a wheelwright and the son of a State primary school teacher.  His starting salary as a clerk at the Department of External Affairs was described as being in the range of £288 to £354, £258 actual.  The formula shows the eternal wisdom of the Australian people.  Not only do they, then as now, take care not to spoil their servants with generosity.  They also created the mathematical miracle of an actual number which is lower than the lowest point of the range of which it is said to form part.

My father’s pedestrian journey took him a mile or two from Beauchamp House over the old Commonwealth Bridge spanning the Molonglo just north of the Royal Canberra Golf Club to the West Block building.  There the Department of External Affairs conducted the foreign policy of the entire nation‑continent out of only five rooms.  Very few of the striking buildings now to be seen around this city had been erected.  The principal objects of interest in the landscape in 1936, apart from the Hotel Canberra and Parliament House, would have been large flocks of quietly grazing sheep.

The West Block building survives still but the old Commonwealth Bridge has gone.  The Molonglo River does not flow at that point.  The old Royal Canberra Golf Club through which it once flowed is at the bottom of the lake and its successor is further south on higher ground.  Not only the city, but the country, the government and the world, have gone through a few revolutions since then.  My father was a great patriot who thought the problems of this country could be solved by its citizens but by them alone.  To their solution he brought conscientious dedication.  My mother’s qualities were similar.  But people who knew them – and there are a handful of them in this room – have been good enough to say that they did the State some service.

Though the problems which this Court seeks to solve appear to change, the human qualities needed for their solution do not.  My hope is that by some process of genetic inheritance it will be possible for my judicial colleagues, whose welcome has been most warm, to receive at least some assistance from me in future in this place.

GLEESON CJ:   The Court will now adjourn to resume sitting at 12 noon.

AT 10.59 AM THE COURT ADJOURNED