Ceremonial -Toohey J - Farewell Perth CER

[1997] HCATrans 300

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 JOHN LESLIE TOOHEY, AC

AT

PERTH

ON

FRIDAY, 24 OCTOBER 1997, AT 9.30 AM

Coram:

TOOHEY J
McHUGH J
KIRBY J

Speakers:

Mr J.G. Syminton, President of the Law Society of Western Australia

Mr W.S. Martin, QC, President of the Western Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

TOOHEY J:   Mr Syminton.

MR SYMINTON:   May it please the Court.  It is with pleasure that I appear on behalf of the Law Society of Western Australia at this special sitting on the occasion of the last visit to Perth of your Honour Justice Toohey as a member of the High Court.

Your Honour’s retirement as a Justice of the High Court early in 1998 marks another milestone in what has been a quite exceptional and outstanding career.  It is appropriate on this occasion to mention brief details of your Honour’s career.  Your Honour graduated with a first class honours degree from the University of Western Australia in 1950.  Your Honour was admitted to practice in 1952 and initially practised in the amalgam.  Your Honour joined the Western Australian Bar in 1967 and took silk in 1968.  Later your Honour was the inaugural principal legal officer for the Aboriginal Legal Service, in Port Hedland.

Your Honour lectured at the University of Western Australia in property law.  Your Honour is well remembered by past students, including two of my present partners, Dudley Stow and Ted Sharp.  Ted Sharp has particularly fond memories of your Honour, as he was awarded an “A” for property law. 

Your Honour made a substantial contribution to the legal profession in Western Australia.  In this regard, your Honour was President of the WA Bar Association from 1969 to 1971 and, President of the Law Society in 1972 and 1973.  Your Honour participated to a substantial degree in the Society’s continuing legal education programme.

Your Honour was in April 1977 appointed as a Judge of the Federal Court.  In April 1997 your Honour was also appointed a judge of the Supreme Court  of the Northern Territory and as the first Aboriginal Land Commissioner.  In 1980 your Honour was appointed as Deputy President of the Administrative Appeals Tribunal.  In 1987 your Honour was appointed to the High Court.

A number of notable decisions have been made by the High Court during the term of your Honour’s appointment.  Some of the more notable decisions were those in Cole v Whitfield, (the Tasmanian Crayfish Case), Mabo and Wik.  Other notable decisions include the Dietrich decision and Teoh v Minister for Immigration & Ethnic Affairs.

Your Honour has throughout his career given generously of his time to the profession  in Western Australia.  That time includes two quite recent exceptional speeches, the speech given by your Honour at the annual dinner of the Blackstone Society which took place earlier this year, and your Honour’s speech at the High Court dinner last Wednesday, 22 October.

Your Honour has, among other things, been a member and financial supporter of the Friends of the Francis Burt Law Education Centre.

In 1987, following your Honour’s appointment as a Justice of the High Court, you participated in an extensive interview with Brief, the transcript of which was published in the March and April 1987 editions of Brief.  During the interview, your Honour was asked what the principal concerns of the Law Society were at the time when you were President.  In this regard, I quote from the interview:

Brief:  Judge, you were the President of the Law Society in 1972/3.  Do you recall what were the principal concerns of the Society in those years?

Toohey J:  One of the major concerns was - it seems a little ironical in view of the present situation - trying to find Articles for graduates and the steps that we had to take writing to all the firms personally and ring up people.  Now, the situation seems to be that Articled Clerks are in great demand.

The current position regarding law students and Articles is similar to that described by your Honour.  While I am not certain of the exact numbers, it is my understanding that there will be approximately 300 law graduates from the University of Western Australia, and Murdoch University at the end of 1997, of whom only approximately 100 at this stage have obtained Articles.  The Society is at present developing a strategy to assist students in obtaining Articles.

The issue of the biggest challenge facing the law was also dealt with in the interview.  In this regard I quote again from the interview as follows:

Brief:  What do you think is the biggest challenge facing the law now?

Toohey J:  I think the biggest challenge facing us is the need to communicate with people, to explain just what we are doing, why laws are made, why they are widely administered in the way that they are and the way the Courts apply them in the way that they do.  To some extent it’s a matter of simplicity of language but it goes much wider than that.  I think it is incumbent on all arms of the law including the Courts to make clearer to the community just what they’re doing.

The challenge facing the profession of communicating with people to explain what the law is about and the basis of the administration of the law remains as big a challenge as it was when your Honour participated in the interview 10 years ago.

Your Honour is regarded as a courteous and popular judge.  It is worthwhile repeating the following comments made by Mr Robert Anderson QC as he then was, representing the WA Bar Association and the Law Society, on the occasion of your swearing in at Canberra on 6 February 1987:

The pride we take and the pleasure we take in your appointment to this office is tinged with a morsel of regret.  We will lose work-a-day contact with a most accomplished, courteous, benevolent and popular judge.

The Western Australian legal profession is justifiably proud of your Honour’s achievements.  On behalf of the Law Society, I wish you well in your retirement and the profession looks forward to seeing more of you in Perth in the years to come.  May it please the Court.

TOOHEY J:   Thank you, Mr Syminton.  Mr Martin.

MR MARTIN:   If it please the Court.  I will do my best to avoid an air of melancholy descending upon this morning’s proceedings which are, to borrow from the Bard, “such sweet sorrow”, or, getting a bit more 90s and borrowing from a Chinese menu, a serve of sweet and sour.

The sweetness of the occasion comes from the opportunity which is provided to publicly acknowledge the extraordinary contribution which your Honour Justice Toohey has made to the work of this Court and to the development of the law in this country since your appointment in February 1987.  The sweet flavour is enhanced by the opportunity to express our sincere best wishes to your Honour and Mrs Toohey in the next phase of your lives, following decades of distinguished public service.  However, the hint of sour is provided by the fact that today is the last occasion upon which your Honour sits as a Judge in Perth.

Because of your Honour’s youthful appearance and vitality, it is necessary to consult the historical records to ascertain how we arrived at this point so soon.  Some reference has been made to those records already but they do reveal that your Honour was admitted to practice in Western Australia almost 45 years ago, on 23 December 1952, just five days before I was born.  Your Honour’s admission followed a distinguished academic career at the University of Western Australia in which your Honour consistently outperformed a close rival, one R.J. Hawke, who is said to have remarked upon that fact when he presided over the Cabinet meeting which, in 1987, confirmed your appointment to this Court.

After admission in 1952, your career seems to have proceeded in orderly, even regimented intervals.  It was an interval of 15 years after admission when, in 1967, you joined the WA Bar Association, being the tenth person to sign the Bar role.  Ten years after that, in 1977, you were appointed to the Federal Court.  Ten years after that, in 1987, your Honour was appointed to this Court and, of course, ten years after that, in 1997, your Honour has announced your retirement.

The symmetry does not end there.  When your Honour does in fact retire from this Court next year in 1998, it will be 30 years since your appointment as Queen’s Counsel.

In addition to these many accomplishments, as has been mentioned, your Honour has the rare but not quite unique distinction of having occupied the shoes of each of Mr Syminton and myself, having served as President of the WA Bar Association from 1969 until 1972 and as President of the Law Society in the years already mentioned by my learned friend.  Some insight into the difficulties that confronted the President of the Bar Association at the time your Honour took office is provided by the minutes of the meeting at which you were elected, on 1 October 1969.  Justice Walsh (as he then wasn’t and who I’m pleased to see in Court this morning) and who is the only other person, in fact, to have served as both President of the Bar Association and Law Society raised two matters of great importance.  The first was an apparently recurrent problem with the refrigerator.  It is not clear from the minutes whether the problem was one of mechanical breakdown or overly rapid depletion of its contents.

The second problem raised concerned difficulties which solicitors were having in making contact with members of the Bar.  That there was a problem in this area does not seem surprising, given the solution which was suggested, namely, the acquisition of a switchboard and the hiring of a receptionist.  The minutes do not reveal how the Bar communicated with the outside world prior to this time.

The minutes of another meeting held on 8 April 1970 reveal another contentious issue.  I quote from the minutes:

Toohey QC said that he felt that grog should not be served during meetings and asked members what they thought.  After somewhat acrimonious debate it was decided to open the first bottle and the general view seemed to be that it was up to the meeting to decide whether they wanted to drink or not, and if so, when.

I am pleased to record that the change in practice which your Honour advocated has since been adopted and alcoholic beverage does not play a part in the current meetings of the WA Bar Association.

On a more serious note, the minutes of the time also record your Honour’s commitment to the continued integration of the profession in this State and your opposition to anything that could be seen as a profession divided between the Bar on the one hand and the Law Society on the other.  Your Honour’s lead continues to be followed to this day.  All members of the Bar Association are members of the Law Society in this State and there is close co‑operation between the Society and the Association in all matters, and a number of senior office holders in the Society are members of the Bar.  The continued integration of the profession in this State remains an article of faith.

Time does not permit me to even attempt to catalogue the many and various ways in which your Honour has supported the legal profession over the years.  I will however make mention of your Honour’s decision in Fencott v Muller which recognised, for the first time, the potential scope of the remedy provided by section 52 of the Trade Practices Act, and coincidentally created a vast new area of professional endeavour for the profession.  Although your Honour was in dissent in Gianarelli v Wraith, your Honour was good enough to make clear that your view was based upon the peculiar Victorian statutory provisions and was not of general application.

As a judge your Honour has always been exceptionally tolerant and polite to counsel.  Your Honour’s demeanour has been so benevolent at times that it has encouraged counsel occasionally to take undue liberties.  I remember one case in which after a pleasant morning during which your Honour politely pointed out the many defects in the pleadings, my opponent was bold enough to suggest to your Honour that if you did not have anything better to do over lunch you might have a go at knocking up a redraft of the offending paragraphs.  Nevertheless your Honour’s unfailing courtesy has been much appreciated by the profession.

I am told that there is a Chinese expression of goodwill which roughly translates to “may you live in interesting times”.  I do not know if your Honour received a Chinese fortune cookie with such an expression in it at the time of your appointment to this Court in 1987, but if so, it has been amply borne out by the issues that have come before the Court since your appointment.  Historians will no doubt produce a survey of your Honour’s contribution to the resolution of those many important issues in the fullness of time, and it would be inappropriate to attempt any abbreviated version of that exercise today.  I have no doubt that history will see your Honour’s contribution as having been both substantial and positive.  For my part, I would venture to suggest that if your Honour were called upon to identify some of the highlights of your time on this Court, mention might be made of the opportunity which it provided to your Honour to participate in a number of landmark decisions of profound significance to the Aboriginal communities with which your Honour has had such a long association, which decisions have been so significant to the process of reconciliation which is so important to the entire Australian community.

Hopefully your Honour will find time to reflect upon these matters after February next year, perhaps from the ideal vantage point of your property near Toodyay.

It would of course be a grave mistake to suggest that any member of this Court is representative of any constituency other than the nation as a whole, and your Honour has always displayed a national outlook.  It is nevertheless appropriate to record that your Honour has remained proudly Western Australian and has maintained many close associations with the community in this State.  As only the second Western Australian to serve on this Court, the people of this State are entitled to take pride in your Honour’s many accomplishments and achievements over a long and distinguished career.  Your obvious compassion for and commitment to the fundamental rights of all Australians, irrespective of race, creed, wealth or State of origin provides an outstanding example to us all.

Your Honour has been a loyal supporter of the Bar Association’s functions in the past, and I sincerely hope that support will continue in the future, long into a healthy and enjoyable retirement.  If it please the Court.

TOOHEY J:   Thank you, Mr Martin.  Mr Syminton, Mr Martin, you have been both much kinder than I deserve.

The practice of the Court in recent years has been for the Justices, other than the Chief Justice, to slip away quietly.  But the Chief Justice has taken the view that if the profession wishes to say something about a departing Justice and, no doubt, in the expectation that it will be in kindly terms, it may do so.

The profession has wished to say something and it has been, to say the least, in kindly terms.  For that I am deeply appreciative, as I am for the attendance of everyone here today.

I am pleased that I am able to sit in Perth relatively close to my retirement.  I do have to say that I have some cameo roles to perform elsewhere over the next couple of months.

Although my 25 years as a practitioner were spent largely in Western Australia, I have led something of a nomadic life since my appointment to the Bench; nearly six years in the Northern Territory, frequent sittings outside the State while a member of the Federal Court and more than 10 years commuting between Perth and Canberra.

This has enabled me to see the law in operation at State, Territory and national levels.  It has made me very conscious of the need for the community to understand and respect the importance of the law for an ordered society.  It has made me equally conscious of the need for lawyers (and this includes judges) to aid that understanding and to ensure that respect is earned.

Having sat as a trial judge in civil and criminal matters and on courts of appeal, I would not try to make a comparison between the work on different courts and at different levels.  It is all responsible and, generally, difficult.  There is however a special feature attaching to the work of a Justice of this Court by reason of the fact that the Court is, for the litigants, the end of the line.  There is no further appeal.  The oath of office, to “do right to all manner of people according to law without fear or favour, affection or ill-will” is a particularly demanding one in those circumstances.

The demanding nature of the work has been eased for me by the good relations I have enjoyed with other members of the Court, relations that go beyond the normal exchange of courtesies.  I am happy to be flanked by Justices McHugh and Kirby this morning.  The friendships I have made on the Court and, I would add, on other courts have been truly rewarding.

The relationship between the judiciary and the legal profession is important.  We are all part of that system.  What touches part touches the whole.  Judges place a great deal of faith in the integrity of advocates and those instructing them so that, while acting in the best interests of their clients, they keep in mind the responsibilities they owe to the functions the courts must perform and to the administration of justice.  My association with the profession naturally has been closest in this State.  It goes back a long way.  It began as a solicitor in the amalgam and continued as a member of the independent Bar until I was appointed to the Bench.  The association has taught me much and it has been the source of many friendships.  I have a real affection for the practice of the law.  That affection has not blinded me to the defects in the legal system; rather, it heightens the concern when the law falls short of justice for all.

I was pleased to hear Mr Syminton’s reference to two of his partners whom I had taught and to the fact that one was pleased that he had been awarded an “A” in property law.  It is a counterbalance to another whom I taught and who, every few years, accosted me in the street to ask me why he was not awarded a distinction.  My reply was always that it was only the milk of human kindness that prevented me from failing him.

The judgments I have written since my appointment to the Bench in 1977 are scattered throughout various series of law reports.  In the case of the Australian Law Reports, over some 130 volumes.  It might be tempting to see them as some sort of a memorial.  But they stand to be assessed according to their value and it would be naive to think that the concept of a shelf life does not have a part to play.

There are many persons to whom I have been indebted during my time as a judge.  You will forgive me if I mention only one, my wife Loma.  If at any time I am in danger of underestimating the debt I owe her, I have my daughters there to remind me.

Please accept my grateful thanks to all those who have taken the time and trouble to be present this morning.

The Court will adjourn briefly before hearing the special leave applications.

AT 9.48 AM THE COURT ADJOURNED