Ceremonial - Welcome to Gageler J and Keane J - Perth

[2013] HCATrans 219

[2013] HCATrans 219

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 STEPHEN GAGELER

AND

THE HONOURABLE JUSTICE PATRICK KEANE

AT

PERTH

ON

WEDNESDAY, 11 SEPTEMBER 2013, AT 8.59 AM

GAGELER J
KEANE J

Speakers:

Mr C.M. Slater, President of the Law Society of Western Australia

Mr P.D. Quinlan, SC, President of the Western Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

GAGELER J:   Mr Slater, President of the Law Society of Western Australia.

MR C.M. SLATER:   May it please the Court.

I am very proud this morning to welcome you on behalf of the profession.  It is a great privilege to be able to deliver this welcome in the presence of your Honours, but also in the presence of a number of distinguished guests today for this ceremony.

I would also like to acknowledge the traditional owners of the land, the Noongar people of southwest Western Australia.

The profession in Western Australia is justly pleased that the Court has returned to Western Australia after a short hiatus.  The community of WA does have concerns and we are grateful for this Court coming to us to address them with us.

The profession, of course, is also very eager to engage with this Court.  It is our connection with Australia and the way we remain relevant to it.  It is a sincere lament that it was a behemoth of a case that enticed you here, and I am not sure that the profession would be able to locate a similar case in the near future, but many in the profession would hope that we never do.

I noticed in the transcript of an earlier welcome for Justice Bell that there was a suggestion that a review of the history of visits to this State had become a little bit unfashionable.  If that were true, it appears to have generated the idea that there are few benefits in visiting Western Australia.  I do not think that is the case.

I do not propose to review the many visits by the High Court to Western Australia, but to look at just the first one for which there is a useful record, and to note that that occurred some 110 years ago in 1903 when the Court arrived with the mail on a steamer and stayed for what appears, by modern times, to be a marathon effort of 10 days. 

Of course, at that time, there was very little business to address, and given that they were staying for 10 days, perhaps there was little business elsewhere as well.  But instead of hearings, the High Court was rather driven by Sir John Forrest to a number of hospitality events around Western Australia, starting with lunches and dinners, which would be obligatory, but including a trip to Mundaring Weir, the South Perth Zoo, a train trip to Kalgoorlie and Boulder, a visit to a mine site and then a display by the Boulder Fire Brigade and a hospital, and it is not quite clear whether all of those were necessarily connected.

After that, there was a quick return to Perth, a journey down the Swan River, followed by a dinner, before, on the eighth day the High Court commenced its first case.  That first case concerned the collection of customs in Western Australia, and it was heard and determined ex tempore. 

The case was commented on favourably in an editorial by the West Australian, which emphasised the importance of an Australian tribunal resolving disputes with a much better understanding than the Privy Council which it unfavourably described as “a body of men sitting at the other side of the world”.

After hearing and determining that case there was another round of dinners, another river trip and a picnic. 

At this point, I hasten to note that the Law Society no longer sponsors ferry journeys on our river.  Not that long ago, we offered as a prize to one of our events a journey which was on a jet boat ride from the Perth jetty – and your Honours have a better view than most, but the Perth jetty is just down there.  If memory serves me correctly, the lucky recipient of that jet boat ride was the Honourable Justice Nicholson, who had only just retired from the Federal Court - I understand that he and his cardio thoracic surgeon have only just recovered from the experience.  I am certainly glad the Society did not offer him a picnic on that occasion.

But there are many benefits.  Some of them were mentioned by Justice Bell in her welcome in this courtroom, where she referred to the apparent luxury of a bygone era where the courts travelled to Western Australia by train journey to Adelaide first, then steamer ship to Perth, and she lamented that that journey would involve a very comfortable ride with the Commonwealth Law Reports on the promenade deck.  Sadly, we all know that they are not the current arrangements for travelling to Western Australia, and I gather there is much work to be done with the chequebook holders in Canberra.

But while the actual business before the High Court on that occasion might not have produced much of a scintillating debate at those picnics, there was wisdom in Sir John Forrest’s journeys.  He wanted to ensure that the High Court had a first‑hand experience of the physical circumstances of Western Australia when it reviewed, on appeal, the particular response of the justice system in Western Australia.  Of course, the extreme hospitality of Western Australia was no doubt another reason to look favourably on the work of the judiciary.

More seriously, far from a series of simple picnics, what was surely intended was to ensure that the High Court understood the circumstances of this State, but that also this State understood that the High Court was not to be merely “a body of men [and now women] sitting on the other side of the world”. 

It is certainly a sincere wish of the profession that you return to us more regularly to assist us with our disputes, and not just for the local jet boat rides.

Justice Gageler, the Court kindly provided us with transcripts of your welcomes, and they were lengthy.  Of course, it is my proud duty to echo and endorse all of those kind words.

I trust that in travelling to Perth, you have accepted the wisdom of the approach commended to you by Mr Colvin SC, then acting as the President of the Australian Bar Association at your welcome in Canberra, that perhaps you needed to get out a little more often, because you had previously submitted in a case that the demonstration of the online betting arrangements in the Betfair Case far exceeded the fun of the demonstration of the PlayStation in the Sony Case. 

Of course, the community is a little troubled by those submissions, and my son has a submission to make about the injustice to PlayStation.  Nonetheless, Justice Nicholson can help you with some jet boat tickets.

Justice Keane, equally I am happily to endorse the sentiment of your lengthy welcomes on previous occasions. 

I am acutely aware of having written to you earlier this year to congratulate you on your appointment at a time when it appeared quite unlikely that the Court would visit us.  I noted that your Honour would appear to be one to thank me for not making lengthy welcome speeches, and I hope the slight digression to High Court history does not form a collateral attack on that implied offer.

Can I just note that Chief Justice Martin for Western Australia observed, when he was then working as President of the Bar Association and speaking at a welcome for Justice Kiefel, that there was an affinity between lawyers of your home State, Queensland, and this State when making assessments of the views of the south‑eastern corner of our continent.  I do not doubt that that affinity continues.  Chief Justice Martin also noted that your State had a far better score card in terms of supplying Justices to the High Court.  That is a matter which we will take some time to fix, but we are on to it.

By way of conclusion, can I just note that when your Honour Justice Keane was farewelled at the Federal Court, you said that:

The skilled lawyers who bring to bear critical human intelligence to the analysis and refinement of the available data remain the most important resource available to the courts and the community in the doing of justice.

I also note Justice Gageler is recorded to have preferred careful arguments and principled persuasion.

I trust that both of you will find in Western Australia skilled lawyers bringing to bear on the matters before this Court the analysis and refinement required for careful argument and principled persuasion.  Working efficiently with the enormous data of the modern world is the reason the community pays and owes the legal profession high respect.  The Law Society is certainly working towards those goals.

On behalf of the Law Society, I am very happy to commend your appointments and welcome both of you to Western Australia. 

The profession wishes you an enjoyable and rewarding career with the Court, and looks forward to working with you, reading your judgments and benefitting from your experience and reasoning in this important role.

May it please the Court.

GAGELER J:   Thank you, Mr Slater.  Mr Quinlan, President of the Western Australian Bar Association.

MR P.D. QUINLAN, SC:   May it please the Court.

It is with great pleasure that I appear on behalf of the Western Australian Bar Association this morning to welcome your Honours Justices Gageler and Keane to this, your Honours’ first visit to Western Australia as members of the High Court of Australia.

Having now been members of the Court for over 11 months and 6 months respectively, your Honours might have been forgiven for thinking that occasions for what your Honour Justice Keane described as “outrageous flattery” were behind you. 

So we are pleased that this journey to the west provides a further occasion upon which to recognise your Honours’ respective contributions to the law and your well‑deserved achievements in being appointed to this Court.

We are also joined on this occasion, by video link, by our close cousins from the Bar in South Australia and, indeed, as I look down the special leave list this morning, by members of the Bar throughout Australia. 

The conduct of these proceedings across State lines - in a manner that is “absolutely free” as section 92 of the Constitution would have it - and your Honours’ appearance today reinforces the truly national character of Australia’s legal profession and its integrated court system. With the High Court at the apex of that integrated court system, it is of course of great importance that this Court sits, as it does, throughout the country. The WA Bar is, accordingly, grateful that your Honours, and the Court as a whole, have again come to Western Australia so that we can offer, in person, our congratulations on your Honours’ appointments.

A sitting to welcome not one, but two members of the Court, also of course, enables us to reflect upon the strength in diversity of the background and career path of the various members of the High Court.

Your Honour Justice Gageler, of course, began your life in the Hunter Valley in rural New South Wales and comes to the Court directly from legal practice, most recently as the Solicitor‑General for Australia, a role which you discharged with great distinction.  Prior to that, your Honour had worked in both public and private practice, including having served with this Court as an associate to Sir Anthony Mason between 1983 and 1985.  Sir Anthony, as has been previously remarked, proved to be a strong formative and lasting influence on your Honour.

Not surprisingly, your Honour’s talents often came to the fore in constitutional law, firstly within the Attorney‑General’s Department, and later at the Bar and as Solicitor‑General.  Of course, your Honour’s reputation at the independent Bar extended far beyond the difficult and sometimes stormy waters of federal constitutional law.  Indeed, it was in commercial law, and solicitors’ liability in particular, that your Honour’s work in Western Australia was perhaps best known, when your Honour acted for thousands of investors who had brought proceedings against solicitors and government regulators in relation to loss that was suffered as a result of systemic failures within the WA finance broking industry. 

Your Honour was also in significant litigation in the early 2000s in Western Australia in relation to the regulation of the supply of gas in this State. 

It was remarked on those occasions, and remains the case, that in addition to your Honour’s formidable legal skills and expertise, your Honour has always been fair and considerate - and as my predecessor, Mr Colvin SC, remarked on a previous occasion - a lawyer of great integrity and humility.  There could be no better qualities to suit your Honour for appointment to this Court.

Your Honour Justice Keane, of course, comes to the Court from an already distinguished career as a judge of both State and federal courts, having been appointed as a judge of the Court of Appeal of the Supreme Court of Queensland in 2005 and Chief Justice of the Federal Court of Australia in 2010.  As such, your Honour will be, by now, well accustomed to occasions such as these.  Your Honour’s service on these courts itself is testament to the integration, mutual influence and comity of the State and federal courts in this country.

Unlike Justice Gageler, your Honour is a product of a capital city, having grown up in Brisbane, where your Honour’s intellectual gifts were evident early on at school and university with your Honour being awarded both dux of your high school and the University Medal in Law, going on to study, with great distinction at Oxford University.

Prior to your Honour’s first appointment to the Bench, your Honour of course enjoyed a long and successful practice at the Queensland Bar, where your Honour excelled in commercial and constitutional practice.  For the last 13 years of your practice at the Bar, your Honour held the position of Solicitor‑General for Queensland. 

As in the case of your Honour Justice Gageler, the role and function of Solicitor‑General - in providing independent expert legal advice to Executive Government - is indispensable to our system of government and one of the guarantees of the maintenance of the rule of law, particularly given the need to ensure the legality of governmental activity in circumstances which may not, for various reasons, be justiciable.

Unlike at the Commonwealth level, of course, your Honour Justice Keane was able to hold the position of Solicitor‑General for Queensland while at the same time maintaining a private practice at the Bar.  This is a structure that has recently been put to use in Western Australia and has always been referred to here as “the Queensland model”.  No doubt the manner in which your Honour fulfilled that role led, at least in part, to the adoption of the “Queensland model” in the west.

Your Honour also comes to the Court with a strong reputation for a powerful intellect, a great capacity for industry and a generosity of spirit, qualities again which are the mark of a successful judicial career.

In welcoming your Honours to the west, the local Bar looks forward with great confidence to both your Honours’ contribution to this Court and to the nation generally.  We look forward to appearing before your Honours and wish you well for the balance of your Honours’ judicial careers.

May it please the Court.

GAGELER J:   Thank you, Mr Quinlan.

Mr Slater, Mr Quinlan, thank you and thank you to the organisations you represent for your words of welcome to the Court and to Justice Keane and myself.  Thank you also to the individual members of the Australian legal profession in Western Australia who have taken the time to attend this ceremonial sitting.  Your courtesy to the Court is appreciated.

I do not presume to speak for Justice Keane.  We will each give a brief personal response.

My professional experience of Perth has to date been limited to that of, and I quote, “an eastern State barrister”, the original fly‑in/fly‑out worker.  Some specimens of that species I see are present in Court today.

Apart from the aptly named “Epic” litigation, the burden of which I shared with Mr Colvin, the cases in which I was engaged to appear in Perth were, for the most part, short and where the cases were not short, an example of which is the Finance Brokers Case referred to by Mr Quinlan, then my appearances were brief, even cameo.  My submissions would be worked up intensively in the five‑hour plane trip, and last minute preparation always benefited from the time difference between Sydney and Perth.  It was not, I am afraid to say, Mr Slater, a picnic.  It was much more like a jet boat ride without the boat.

My experience of the local profession on those not infrequent forays, is, those with whom I worked and those to whom I was opposed, was uniformly one of professionalism, efficiency and courtesy.  To return to Perth, for the first time as a Judge of a national court for more than one day, and for more than one case, heralds for me a new era.  My personal hope is that it marks the beginning of a more periodic and much less episodic relationship.  I look forward, when in Perth, to benefiting as a Judge from the same high professional standards I encountered as a practitioner.

When in Canberra, and when in the High Court building, I am privileged now to occupy the chambers first occupied by Sir Ronald Wilson, the first Western Australian to be appointed to the High Court.  The Western Australians are, Mr Slater, gradually catching up to the Queenslanders.  The chambers I occupy, I am sure not coincidentally, are the only chambers in the High Court to face west.

Thirty years ago, Sir Ronald was kind enough to invite me into those chambers for a cup of tea, which he made himself.  I was a young lawyer of no particular note, and I had just started work as an associate to another Justice of the High Court.  Sir Ronald was doing nothing more than following his usual practice of personally welcoming everyone new to the building.  He had flown in from Perth the night before on the red eye, and he had started the day in Canberra with his customary 10 kilometre run.

The encounter left a lasting impression on me, as did my observation of Sir Ronald over the ensuing years as a Judge, and later as President of the Human Rights and Equal Opportunity Commission.  There was no doubting his great ability as a lawyer.  There was no doubting the depth of his legal experience and the independence of his legal thought.  But what stood out above all was the depth of his character, his humanity and his empathy.  Sir Ronald Wilson, the first Western Australian to be appointed to the High Court, personified the Australian judiciary and, more generally, the Australian legal profession, at its best.

Thank you again for your attendance.  I am conscious that a mid‑week visit of a former eastern State barrister pales in comparison to the impending visit of an entire eastern State sporting team in just a couple of weekends’ time.  I trust you will give them an equally warm reception.

Justice Keane.

KEANE J:   Mr Slater, Mr Quinlan, colleagues, ladies and gentlemen.

Mr Slater and Mr Quinlan, I join with Justice Gageler in thanking you for your very kind words of welcome.  Mr Slater, I can assure you that the hospitality of Western Australia’s lawyers is no less heroic than in past times, although the time available to enjoy it has been restricted.

On 22 November 2010, slightly less than three years ago, I was accorded the honour of a welcome by the legal profession of Western Australia on the occasion of my first sitting in Perth as Chief Justice of the Federal Court.  Obviously, I enjoyed the occasion and what followed, because here I am, back again.  Part of what followed was the privilege and pleasure of sitting in Perth with my Western Australian colleagues on the Federal Court.  That was a source of great satisfaction, and I am delighted that my former colleagues, Justice Siopis and Justice McKerracher, have been able to be here today.

On that occasion, three years ago, I made two observations which I am very happy to say remain true.  The first was that there has been for a very long time a spirit of happy co‑operation between the judges of the Federal Court in this State and the judges of the Supreme Court of Western Australia.  I am very happy and very satisfied to say that this situation has remained the case, and it was particularly so during my period on the Federal Court.

The other observation I made on that occasion was that Western Australia lawyers routinely exhibit the very highest professional standards and skill which was all to the good, given that the world is beating an ever more frequent path to Western Australia.  I have no doubt that that state of affairs will continue and continue apace.

Thank you once again for the warmth of your welcome.

GAGELER J:   The Court will now adjourn to reconstitute.

AT 9.21 AM SHORT ADJOURNMENT