Ceremonial - Welcome - Keane J - Melbourne

[2013] HCATrans 122

[2013] HCATrans 122

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 PATRICK KEANE

AT

MELBOURNE

ON

FRIDAY, 10 MAY 2013, AT 9.15 AM

KEANE J

Speakers:

Ms Fiona McLeod, SC, Chair of the Victorian Bar Council

Mr Reynah Tang, President, Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

HIS HONOUR:   Ms McLeod, do you move?

MS F. McLEOD, SC:   May it please the Court.

I appear on behalf of the Victorian Bar to welcome your Honour on this occasion of your Honour’s first sitting in Melbourne as a Justice of the High Court of Australia.  This week three years ago Michael Colbran QC, then Chairman, welcomed your Honour on behalf of Victorian Bar on the occasion of your first sitting in Melbourne as the Chief Justice of the Federal Court of Australia.  Colbran performed the customary ritual dance – in the usual oral form of a brief recitation of your Honour’s professional biography and achievements – to introduce then your Honour to the Victorian profession.

Your Honour returned the ritual compliments, speaking of the Victorian Bar Chairmen, judges and counsel.  Your Honour spoke of Sir Robert Menzies and his advocacy in the Engineers’ Case – of Sir Owen Dixon and others at our Bar who had served on the High Court.  You spoke of the late Neil McPhee QC, and the late Ron Castan QC.  Your Honour spoke of your own personal experience with our Bar and having been led in the High Court by Stephen Charles QC.  Since that time, your Honour has, as Chief Justice of the Federal Court, sat in Melbourne.  Last September, you met with members of the 2011/12 Victorian Bar Council over lunch, and then again in November your Honour continued this engagement, speaking to the new Bar Council.

We very much appreciated your Honour’s active engagement with the Victorian profession.  The discussion was informal, informative and stimulating.  We are also delighted that your Honour is to be our guest speaker at our Bar dinner in two weeks’ time, where, if the usual rituals are observed, your Honour might be expected to get a little of your own back.  It is now my honour and pleasure to welcome your Honour to Melbourne again, this time on your Honour’s first sitting as a member of the High Court. 

Your Honour comes to this Court following more than 21 years of outstanding public service and judicial service:  13 years as Solicitor‑General for the State of Queensland, five years as a Judge of Appeal of the Supreme Court of Queensland, and three years as Chief Justice of the Federal Court.  At your Honour’s welcome to the Queensland Court of Appeal in 2005, Chief Justice de Jersey spoke of your Honour’s “distinguished 27 year career at the Bar”, and the Queensland Attorney spoke of your “exemplary” service as Solicitor‑General, “seen by the High Court and other Solicitors‑General . . . as one of the nation’s leading Queen’s Counsel”. 

The Valedictory ceremonial sitting of the Supreme Court of Queensland in March 2010, after your Honour’s five years on the Queensland Court of Appeal, reflects the high regard and affection in which your Honour was held on that court.  Characteristically, your Honour accepted the invitation of a valedictory sitting because, as your Honour put it:

It was timely to say something about this institution, the Supreme Court of Queensland, which I have come to love, and some of the individuals associated with it.

And that is what you did.  You spoke about the court and others’ contribution to it.  At that sitting, Chief Justice de Jersey said this of your Honour’s service on that court, and I quote: 

Justice Keane has been a highly valuable member of this Court . . . reflecting the gifted lawyer that he is – an astute lawyer with a fine capacity for decisive and reliable judgment . . . he was, from the very start, not just quick but rapid [in the production of judgments] and that reflected his unbridled capacity for hard work, his judicial assurance, and his immense learning.

So it was again at your Honour’s February 2013 farewell from the Federal Court.  Of course, everyone knew there would be the full ceremonial High Court swearing in and welcome the following week at which your Honour’s outstanding service would be chronicled.  Recalling that the Queensland profession had spoken at your farewell to, and farewell from, the Court of Appeal – and your welcome and farewell from the Federal Court – and that they would be speaking again at your welcome to this Court, your Honour joked:

I am truly sorry for yet again putting you in a position where you are obliged to rack your brains to find nice things to say about me.

Were it not for the fact that your Honour is a dear friend of Justice John Middleton, I would be inclined to think that your Honour has enjoyed more welcomes than hot dinners.  I think the tally currently stands at eight.  Indeed, to the ignorant bystander, it might be thought that your Honour is a welcome junkie.  Your appointment to this Court and allocation to the role of duty judge has interfered with a trip, I understand, planned with your wife Shelley, and John and Judith Middleton to Europe this year.  You were planning to assist with his Honour’s sabbatical – his global gastronomic research paper.  Alas, we hear the GDP of a number of small European States will suffer as a result of your absence. 

Your Honour does indeed bring selfless commitment, dedication and distinction to your seat on this High Court, and we at the Victorian Bar particularly admire your Honour’s frank public statements as Federal Court Chief Justice – some of which you also touched on in your farewell – but it was good that you spoke out in the public media about these matters:  the irony of Commonwealth attempts to introduce laws to encourage litigants to resolve commercial litigation more cheaply and expeditiously when it is the very complexity of Commonwealth laws and their constant amendment that are making the resolution of cases more difficult.  Your Honour gave examples:   The Native Title Act, you said, is “not an easy read”; the Copyright Act and the legislation that underpins migration controversies are “complex”, the Tax Act is a “parallel universe”.

On discovery, you said:

It does no good to have the last three years of a corporation’s life on a database so that at trial people can meander through it and see if they can find something interesting.

You have called for the urgent restoration of funding to the Court, speaking out against increased court fees.  That the State provides justice, you said:

is one of the core values of our tradition; and . . . substantial fees to get in the door of a court is a matter of concern. 

We could not agree more.  On behalf of the Victorian Bar, I welcome your Honour on this occasion of your first High Court sitting in Melbourne and wish your Honour long, distinguished and satisfying service as a Justice of this honourable Court.  May it please the Court.

HIS HONOUR:   Thank you, Ms McLeod.  Mr Tang, do you move?

MR R. TANG:   May it please the Court, I appear on behalf of the Law Institute of Victoria and the solicitors of this State to congratulate your Honour on your appointment to this honourable Court.  Your Honour comes to this Court after five years on the Queensland Court of Appeal and three years as Chief Justice of the Federal Court.  Before that, your Honour practiced at the Queensland Bar for 27 years.  Your Honour had your schooling at St Columba’s Convent School and at Christian Brothers’ St Joseph’s College on Gregory Terrace, Brisbane.

Upon your appointment, The Age reported on your love of cricket and dream of playing professionally, but that your natural gifts were more intellectual than physical.  The article referred to that as being unfortunate, but I am more inclined to consider it fortunate for this Court.  You won an open scholarship in the Queensland Senior Public Examinations and went on to the University of Queensland.  Your Honour worked part‑time through your studies at the University of Queensland.  Fom 1973 to 1975, while studying for your law degree, you worked in the law firm of Roberts & Kane, a Brisbane based commercial and litigation practice.

Your Honour completed a double degree in Arts and Law, a first class honours law degree, and you won the University Medal in Law.  You were also awarded the Walter Harrison Prize, the Virgil Power Prize and the John Hughes Wilkinson Prize.  In February 1976, upon completion of articles at Roberts & Kane you were admitted to practice as a solicitor.  Your Honour then worked as an employee solicitor with Feez Ruthning for two years until your admission to practice as a barrister in December 1977.  The firm’s history dates back to 1846 in what was then the Moreton Bay District of New South Wales, 12 years before Queensland became a separate colony.  The firm had a national reach and your Honour’s time there, now known as Allens Linklaters, its reach is truly global.

Your Honour was awarded a Sir Henry Abel Smith Scholarship and you took leave from Feez Ruthning to spend an academic year at Oxford.  You returned from Oxford with a graduate degree Bachelor of Civil Law with first‑class honours; the Vinerian Scholarship for the top BCL graduate; and the JHC Morris prize in Conflicts of Laws.  You returned also with your son Patrick, who was born in Oxford.  It is mostly members of the Bar whose practice is in and around the courts who attend judicial welcomes.  However, it is notable that a number of solicitors made a special effort to come to your February 2005 welcome to the Queensland Court of Appeal. 

Your Honour commented that:

It is very pleasing to see here today so many of the solicitors with whom I have worked over the last three decades, and with whom I have become close friends. 

Then President of the Law Society of Queensland, Mr Peter Eardley, said of his experience in briefing your Honour, “He always made you feel like one of the team”.  Deputy President Bruce Doyle recalled, in a particularly troublesome case, your Honour’s respect and compassion for his client and your visible pain in not being able to help the client.

At your Honour’s swearing in and welcome as Chief Justice of the Federal Court in March 2010, Mr Eardley said:

We solicitors have a common lament from your time at the Bar.  Your name was foremost on our list of preferred counsel.  Many a solicitor . . . [was] disappointed to be told that you had applied the cab rank rule [and that] the other side had got in first.

He also spoke of, “the great admiration we all have for your legal talents, but also the great personal affection we all have for you”.  Your Honour brought to your office as a judge the formidable combination of intellect, integrity, industry and compassion.  In 2011, your alma mater, the University of Queensland, conferred on you its highest honour – the degree of Doctor of Laws (honoris causa).  It is gratifying that your Honour has now been elevated to our highest Court.

As I mentioned at the recent ceremonial sitting for your successor at the Federal Court, Chief Justice Allsop, you are both members of the Law Institute, although I hasten to add that it is the American one rather than the one I represent today.  As a tax lawyer, it is particularly pleasing for me to have been able to come over from the “parallel universe” that the Chair of the Victorian Bar Council referred to in her speech to be here today.  On behalf the Law Institute of Victoria and the solicitors of this State, I wish your Honour long, distinguished and satisfying service as a Justice of this honourable Court.  May it please the Court.

HIS HONOUR:   Thank you very much, Mr Tang.  Ms McLeod, Mr Tang, thank you very much for your kind words.  It is true that I have had more than my fair share of welcomes and farewells, and it is also true that a judge whose occupation is a byword for sobriety should not take the nice things that are said on those occasions to heart.  Most people would think that a judge whose occupation is a byword for sobriety would lose patience with those occasions and with the nice things that are said, but those people would be wrong.

I am very grateful to both branches of the profession for welcoming me again to Melbourne, especially after the warm welcome I received here three years ago as Chief Justice of the Federal Court.  Over the last three years, sitting on that court, I enjoyed very much the time I spent in Melbourne, and yes, Ms McLeod, I did have many hot dinners. 

I am sure that you know, and your members know, I have long held the Victorian Bar in the highest esteem.  That admiration does not stem merely from reading the mighty judgments of Cussen, Isaacs, Starke, Dixon, Latham, Fullagar and Menzies at law school.  I had the great privilege while at the Bar of appearing with or against Mr Merralls QC, in particular appearing with Mr Merralls QC, and working with him on constitutional conventions, Mr Berkely QC/SG, Mr Charles QC, Mr Finkelstein QC, Mr Merkel QC, Mr Graham, QC/SG, Mr Archibald QC, Mr Young QC, Ms Tate SC/SG, and Stewart Anderson (who was not at the time we worked together a silk but has since been elevated).

I was especially privileged to have appeared on a number of occasions against the late Ron Castan QC, in most difficult and important cases.  The experience of appearing with or against these members of the Victorian Bar could not leave one without the highest regard for their quality as barristers and for the quality of the Bar whence they came.  It also generated an abiding affection for the members of that Bar.  In the course of the years that I have been coming to sit in Melbourne on the Full Court of the Federal Court, I have never had the slightest reason to revise my opinion downwards. 

Mr Tang, I have also had a long and substantial association with the solicitors of Victoria and substantial reasons to hold them in high regard.  In particular, I have come to admire their dedication to justice and especially their willingness to engage in pro bono litigation.  There is a lively ethos of professional responsibility here in Victoria which is an example to lawyers everywhere in the common law world.  Mr Tang, I must admit that I was a little disconcerted on the last occasion when I was welcomed in Melbourne.  Mr Stevens (who held your brief on that occasion) on behalf of the Law Institute, urged that as someone who would now be a frequent visitor to Melbourne I should adopt an AFL team to support and he suggested it should be Melbourne.  I did not on that occasion respond to Mr Stevens’ suggestion, partly because I was taken aback by it and partly because I did not want to offend him if he was serious.  I do not mean to say a word in disparagement of the Demons and some of my best friends are Melbourne supporters – his name has already been mentioned.  But I think that the time has now come for me to come clean. 

It is that I have been for 40 years, and remain, save when the Lions are playing, of course, a Carlton supporter.  We have had some good times in those 40 years and I suspect that they are coming again.  Thank you all very much for your attendance this morning and the honour you do me and the Court. 

Please adjourn the Court.

AT 9.30 AM SHORT ADJOURNMENT