Ceremonial Sitting - Welcome - Edelman J - Melbourne

[2017] HCATrans 76

[2017] HCATrans 076

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

SPECIAL SITTING

AN OCCASION TO WELCOME

THE HONOURABLE JUSTICE JAMES EDELMAN

AT

MELBOURNE

ON

FRIDAY, 7 APRIL 2017, AT 9.15 AM

EDELMAN J

Speakers

Ms J.J. Batrouney, QC, President of the Victorian Bar

Ms B. Wilson, President of the Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

EDELMAN J:   Ms Batrouney.

MS J.J. BATROUNEY:   May it please the Court.

I appear on behalf of the Victorian Bar to welcome your Honour Justice Edelman on this, the first occasion of your Honour’s sitting in this Court in Melbourne. 

Your Honour was born in Perth.  Your secondary education was at Scotch College.  You graduated Bachelor of Economics and Bachelor of Laws from the University of Western Australia.  You were awarded a First Class Honours Law Degree and the Frank Parsons Prize as the most outstanding graduate that year.

More importantly, I am reliably informed that your administrative law uni notes were “more popular than cheap beer” - especially after most of the admin law class scored more than 90 per cent in their final exams. 

You also graduated Bachelor of Commerce from Murdoch University.  It is reported that the University of Western Australia would not permit a triple degree enrolment, so your Honour moonlighted at Murdoch. 

Your Honour served Articles at Blake Dawson Waldron in Perth and served as Associate to the late Honourable John Toohey on this Court. 

You went to Oxford as the Rhodes Scholar for Western Australia and graduated Doctor of Philosophy.

Your Honour was called to the Western Australian Bar and practised in the Chambers of Malcolm McCusker QC, later Governor of Western Australia. 

Your Honour returned to Oxford and in 2005 you were elected a fellow of Keble College and appointed a lecturer in law.  You won an Oxford “Excellence in Teaching Award” in 2007.  In 2008 you were appointed to a Chair at Oxford - Professor of the Law of Obligations.  That year, you were also called to the Bar of England and Wales, reading with David Wolfson at One Essex Court. 

In 2010, you won another Oxford “Excellence in Teaching Award” - this one for your “apposite and thoughtful project proposal to introduce moot court competitions as part of developing the Legal Research and Mooting Skills Program”. 

Your Honour combined teaching and practice as a barrister at the highest level.  You ran a busy commercial practice in London while also continuing to appear in Australia - including three successful murder appeals in this Court. 

At your High Court welcome in Canberra, Attorney‑General Brandis said:

“By this time, your Honour had won an international reputation, both as a legal scholar and as a barrister.  It is not unknown for Australian barristers to establish successful practices at the London Bar.  It is almost to be expected that a Professor of Law at Oxford would have an international reputation.  What is, I think, without precedence for an Australian is for one person to do both, and to do so before they had reached the ripe age of 35.” 

In July of 2011, your Honour was appointed a judge of the Supreme Court of Western Australia.  Nearly four years distinguished service on that court was followed by less than two years distinguished service as a judge of the Federal Court in Brisbane. 

Lord Bingham, sometime Master of the Rolls, Lord Chief Justice and senior Law Lord, was a visiting Professor at Oxford with you from January 2009.  In your Honour’s substantial 2015 Selden Society Paper on the late Lord Bingham you observed that “Bingham never regretted taking an appointment at a young age”.  You quoted his Lordship’s preference for “choosing [for the English Supreme Court] outstandingly able younger candidates who have time to mature and to develop in Office . . . to achieve a blend of youthful energy with seasoned experience - in a Court finally attuned to the contemporary world.”  An apt characterisation of your Honour’s appointment to this Court, if I may say so. 

Your Honour has described your three principal guides and mentors, the late Honourable John Toohey, the late Professor Peter Birks and the Honourable Malcolm McCusker, as devoted to trying to find beauty in the law. 

Your Honour has said that your mother was “an exceptional teacher” and that although you have given up your career as an academic, you “will never cease to be both a teacher and a student of the law”. 

Your Honour is a champion swimmer and surf lifesaver - you were a member of the 1996 Australian Lifesaving team.  You compete in triathlons and in 2013 your Honour won bronze in the 40 to 44 years category in the State Masters Championships.  Late last year, you returned to the west for a lazy 1.8 kilometre swim across Cottesloe Bay.

Your Honour is devoted to your wife, Sarah Percy, who is a distinguished political scientist; your two children, Tatiana and Jonah; your mum Dinah - who brought you and your two sisters up as a single mum - and your stepdad Ray.

No doubt it is this combination of legal eminence, athletic prowess and family devotion that led to the gloomy atmosphere in the silks’ robing room after your Honour’s High Court welcome in Canberra.  It was described as “like being in the footy change rooms after your team has lost the grand final”.  The leaders of the profession were left totally deflated in the face of your Honour’s all‑round brilliance.  The nail in the coffin was the word that you are also incredibly humble and a nice bloke to boot.

Your Honour has been described as someone who has “a work ethic to intimidate the most diligent professional” - and it is also said that “what you do in preparation for a hearing is just extraordinary”.

As President of the Victorian Bar I am proud of our outstanding advocates - and I am sure that no one here today is the slightest bit intimidated by the prospect of your Honour’s sitting on their case today.  But I am equally sure that one or two of them might be wishing that they had read the 17th case in their opponent’s list of authorities just a little bit more carefully. 

On behalf of the Victorian Bar, I wish your Honour joy in your appointment, long and distinguished service and that, like Lord Bingham, your Honour will never regret taking appointment at an early age.  We look forward to seeing much more of your Honour on your visits to Melbourne. 

May it please the Court.

EDELMAN J:   Thank you very much.

MS B. WILSON:   May it please the Court.

I appear on behalf of the Law Institute of Victoria and the solicitors of this State to welcome your Honour Justice James Edelman as a Justice of the High Court to this your first Melbourne sitting. 

There are a number of hard acts to follow in Australian law, with the labyrinthine Commonwealth Criminal Code a notorious example for some. 

In that regard, however, I refer this morning to the many legal luminaries - the latest, Ms Batrouney - who has spoken so highly, and deservedly so, of your Honour at previous ceremonial sittings and welcomes and other events. 

Those occasions have included your Honour’s appointment to the Western Australian Supreme Court in 2011, the Federal Court of Australia in 2015 and more recently, of course, to this Court, the pinnacle of our judicial system which your Honour has justifiably attained. 

I must therefore avoid repetition but, with the greatest respect, some gently massaged retelling is necessary - if not outrageous plagiarism - that is meant in no way to disrespect your Honour nor should it diminish the significant special sitting. 

Given that your Honour has previously quoted Voltaire, I am comfortable to also cite the great French philosopher, historian and writer thus”  “Originality is nothing but judicious plagiarism”. 

Even to severely abridge your Honour’s academic career - previously described as “stellar” - to law First Class Honours, Rhodes Scholar, Doctor of Philosophy, teacher and Professor at Oxford University, speaks volumes. 

Your Honour’s rise through the senior ranks of the Australian judiciary has been deemed “meteoric”, a term along with “stellar” to conjure cosmic proportions. 

Whatever is out there beyond our terrestrial ties, writer for the Sydney Morning Herald, Stephanie Peatling, tweeted a down‑to‑earth response to the announcement of your Honour’s appointment in November:

“Office madly reading James Edelman’s CV and feeling like complete non‑achievers.”

She later added:

“His looks have not even been ravaged by all that work.”

It is somewhat of a relief then to learn that your Honour is incapable of reading a map and struggles with some everyday domestic rituals. 

Your Honour is renowned and greatly appreciated for the speed at which your judgments have been produced.  It is a fine trait admired by a former colleague of the Federal Court, Justice Nye Perram, who described your Honour as “an animal” in that regard.  Given that every Monday each Justice of the High Court is identified in circulated correspondence as to who or who is yet to produce judgment, your Honour’s reputation should combat any “Monday morning blues”.

We await for another, more appropriate time - but hopefully before your Honour’s mandatory retirement age in about 9,800 days - for an elucidation to a love of 1980s music and any advances in cartography.  Until then, we will be content to follow what is sure to be a brilliant career on this Bench. 

May it please the Court.

EDELMAN J:   Thank you, Ms Wilson. 

Ms Batrouney and Ms Wilson, members of the judiciary and Bar, including senior counsel at the Bar Table, ladies and gentlemen, thank you all very much for your attendance and the honour this morning. 

When I was appointed to the Federal Court I effectively became the replacement for Justice Marshall in Melbourne, although I was based in Brisbane.  Over the last two years, therefore, I had docketed trials and appeals in Melbourne on a number of occasions. 

It has been a very great pleasure to visit Melbourne on these occasions for two reasons.  First, the Melbourne Bar has a strong tradition of rigorous, intellectual, one might even say “Dixonian”, advocacy and, secondly, the judiciary has a very powerful alliance with the extraordinary law schools in Melbourne.  I have enjoyed attending the superb Judges and the Academy series, teaching on the Melbourne Masters courses and attending almost all of the world‑renowned biannual obligations conferences since 2001.  I greatly look forward to continuing associations with all branches of the profession in this city. 

Once again, I would like to thank you all very much for your attendance on the occasion of my first sitting as a High Court Justice in Melbourne and I hope to visit many more times over the next 27 years and then beyond. 

The Court will now adjourn to reconstitute at 9.30 am.

AT 9.27 AM THE MATTER WAS CONCLUDED