Ceremonial - Welcome to Nettle and Gordon JJ - Perth

[2015] HCATrans 183

[2015] HCATrans 183

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 GEOFFREY NETTLE

AND

THE HONOURABLE JUSTICE MICHELLE GORDON

AT

PERTH

ON

TUESDAY, 11 AUGUST 2015, AT 9.13 AM

NETTLE J
GORDON J

Speakers:

Mr M. Howard, SC, Vice‑President of the Bar Association of Western Australia

Mr M. Keogh, President of the Law Society of Western Australia

TRANSCRIPT OF PROCEEDINGS

NETTLE J:   Mr Howard, you move.

MR M. HOWARD, SC:   May it please the Court. 

It is my privilege and pleasure to appear at your Honours’ welcome this morning on behalf of the Western Australian Bar Association. 

I was tempted to start by welcoming Western Australia’s newest appointments to this Court.  However, not being that bold a counsel it is something to which I may return.

This is your Honours’ first Perth circuit of the Court.  The Perth circuit historically has not always been the happiest trip for Justices.  A low point of the circuit must be the August 1935 circuit in which it is recorded at Justices Evatt and McTiernan travelled to Perth by train, at least in part, to avoid one of their brethren who was making the trip by boat.

While it would seem trite to say and acknowledge that the circuit involves some disruption and inconvenience to the Court, at least for six out of seven of the Justices, the fact that the Court does travel to all of the capital cities is a powerful statement of its position as the highest Court in a federated nation. 

Welcomes are, of course, an opportunity to mark individual appointments, but they also very much emphasise the continuity of the Court as an institution.  The Court is valued by Australians who continually rate it the most, or equally the most, trusted institution in the country.  Further, the Court may be the only final Court in the common law world which has starred in a popular movie.

The trust which the Court enjoys has been built up and maintained over the years by the outstanding individuals who have served as Justices.  Today is the Western Australian profession’s opportunity to welcome your Honours, deservedly, into that company.  No doubt your Honours already feel very welcomed to the Court as this is not, of course, your first welcomes.  In fact, at last count, this is the fifth welcome that your Honour Justice Nettle has received.  Indeed, at one of the earlier welcomes your Honour remarked that you feared that you had had more welcomes than weeks served.

At your Honour Justice Gordon’s welcome in June of this year, Fiona McLeod, SC, for the Australian Bar Association remarked that both of your Honours are unable to be swayed by charm or flattery.  In the circumstances, I trust that your Honours will forgive me if I do not restate your eminence as counsel, stand‑out qualities as judges of courts below and the universal acclaim with which your appointments were greeted.

Before the Attorney’s speech at the first welcome, I am not sure it was widely known in the local profession that your Honour Justice Nettle was born in Cottesloe.  Had that been known, I am sure that strenuous efforts would have been made much earlier to claim your Honour as another appointment from Western Australia. 

As cases come and go, for both the Bench and the Bar, recitations of significant cases in which counsel has appeared, or as a judge decided, do not always convey appropriately that person’s standing.  Perhaps that can be better reflected by considering the impact that person has had on the profession and those around them.  If a part may speak to the whole, it is most telling that next to your Honour Justice Nettle now sits, in this Court, one of your Honour’s readers.

While the local profession has only a very tenuous claim, to completely overstate the position, on your Honour Justice Nettle, the claim is somewhat stronger in respect of your Honour Justice Gordon.  I know that there is a national legal profession working within a national integrated court system, but if I was to use the old language:   the local profession’s loss was Victoria’s gain when your Honour left Perth after your legal education at the University of Western Australia and early years in the profession.

But, as is common the world over, people of conspicuous ability are adopted quickly and unreservedly in their new home, as the Victorian Bar has done in the case of your Honour.  Again, as to your Honour’s qualities and achievements, if a part may speak to whole, it is surely significant that your Honour singled out the Indigenous Law Students program in which your Honour participated while a judge of the Federal Court as something which your Honour would particularly miss.

The Bar Association welcomes your Honours’ appointments and hopes that you find the work of the Court rewarding and fulfilling.  Certainly, we trust that your Honours will have no cause to echo the sentiments of Sir Owen Dixon who, while on this Court, complained to a friend:

My days and nights are spent in writing judgments which few read and in listening to arguments confused by interruptions from the Bench and in attending dull and pointless social gatherings. 

May it please the Court.

NETTLE J:   Thank you, Mr Howard.  Mr Keogh.

MR M. KEOGH:   May it please the Court.

On behalf of the Law Society of Western Australia and the legal profession of this State, it is my distinct privilege to welcome the Court, and in particular its new members, your Honour Justice Nettle and your Honour Justice Gordon, to the great State of Western Australia. 

May I congratulate both of your Honours on your appointments as Justices of this most honourable Court. 

There has been a tradition in such addresses to this Court by my predecessors to regale your Honours with the history of the visits of the Court to Perth in times gone by, such as lunches on steamers up the Swan and the quaintness of modes of transport from over east to Perth. 

You will be relieved to know that I will not repeat such tradition but instead observe that the tradition of the High Court of Australia sitting on circuit and holding hearings of appeals and applications for special leave around the country, unique as it is against the practices of its counterparts in the United Kingdom and the United States, is a tradition and a service that should continue. 

Justice must not actually be done but also be seen to be done.  An important part of this is the capacity of the people of Western Australia to observe the operation of the highest Court in the land in action in our own State, a State that I am sure your Honours are all too familiar was a reluctant entrant to our Federation in the first place.

Indeed, the High Court sitting in Perth is the principal embodiment of the Commonwealth power being exercised in Western Australia, with the home of the Executive and legislature being effectively locked into Canberra, with only occasional meetings of the Federal Cabinet occurring outside of that place. 

In particular today, we formally welcome back to the great State of Western Australia your Honours Justice Nettle and Justice Gordon, both of whom, of course, started life here, and it appears the lives and careers of your Honours have continued to cross ever since.

As many pages of transcript have already been filled from similar hearings in Canberra, Melbourne, Adelaide and Sydney, I will not attempt to recite again the numerous virtues of your Honours upon your recent appointments.  However, it would be remiss of me not to highlight some points. 

If I may turn to your Honour Justice Nettle, your Honour was born in Cottesloe but stolen away by your family from Western Australia at an early age to live in Victoria.  Your Honour has followed an almost Western Australian‑like legal career though, becoming a law firm partner prior to being called to the Bar.

One of the silk with whom you read at the Bar was Kenneth Hayne, QC, as he then was, who not only went on to become a Justice of this Court but also the husband of your Honour Justice Gordon.  But, of course, the connections did not end there, when, as silk, your Honour took on as a reader one Michelle Gordon, as she then was. 

It is clear that such coincidences are something of a tradition for High Court Justices coming from Western Australia.  As the Chief Justice pointed out at the memorial service for the late honourable John Toohey, AC, QC, they had both lived on the same street in Western Australia.

Your Honour Justice Nettle developed a reputation as an extremely hardworking junior barrister, specialising in revenue law, constitutional and administrative law, trade practices, corporations and property.  Your Honour had a reputation for your exceptional skills as a trial and appellate advocate and your Honour was both feared and admired for your Honour’s cross‑examinations.  Hence, for the time being, I will limit my High Court appearances to these ceremonial hearings.

Your Honour, though, was very supportive of your junior barrister colleagues and, of course, your Honour has been greatly admired and respected for your tireless judicial work on the Supreme Court and then the Court of Appeal of Victoria prior to your appointment to this honourable Court. 

Your Honour, I understand, has also displayed an interest and skill in varied sports, including being selected for the 1st XIII for rowing at both Wesley College and Trinity College, University of Melbourne; playing rugby union and progressing to becoming a referee; continuing to sail Jubilee class yachts; and a passion for vintage cars.

Turning to your Honour Justice Gordon, we are of course proud in Western Australia that you were not only born here but attended school and law school here, commencing your career at the firm of Robinson Cox, now Clayton Utz, before moving to Melbourne where your legal career continued to soar.  Fortunately, I understand you retained your affinity for the West Coast Eagles which could, come September, make for interesting conversations in Chambers given the Chief Justice, I understand, is a Dockers supporter.

As a junior barrister, your Honour soon established a full and varied practice specialising in large commercial taxation and public law matters.  Your Honour was also known for a sharp wit and sense of humour as well as a reputation for humility, integrity and for having a prodigious work ethic.  Your Honour is known for always having taken time to assist and mentor others and to continue the education of younger practitioners.

Appointed to the Federal Court, your Honour led the Federal Court’s participation in the annual Indigenous Law Students’ clerkship program which offers indigenous law students three one‑week clerkship positions with each of the Victorian Bar, Federal Court in Melbourne and the Supreme Court of Victoria. 

Your Honour was also instrumental in the development of the Federal Court’s tax practice note, the implementation of which expedited the hearing process by limiting pre‑trial phase and focusing on the real issues in dispute.

As three of the seven sitting High Court Judges now have at least some linkage to Western Australia, all that remains now is to resolve the divvying up of the GST. 

In the meantime, the Law Society and the legal profession of Western Australia congratulate your Honours Justice Nettle and Justice Gordon on your very worthy appointments and welcome the whole Court back to Perth.

May it please the Court.

NETTLE J:   Thank you, Mr Keogh. 

Mr Howard and Mr Keogh, thank you most sincerely for your very kind and flattering observations.  It is indeed a great pleasure to be here on my first Western Australian circuit as a member of the High Court. 

It also brings back a number of memories.  When I was admitted as a barrister of the Supreme Court of Western Australia more than 30 years ago, the Chief Justice was still then the great “Red” Burt, the founder of the Western Australian Independent Bar, and the 1980s were just beginning to boom.

As history now records, this State then went on to benefit, perhaps more than any other, from the 10 years of extraordinary development which followed; albeit that it also bore as much, if not more than most, of the devastating fallout from the economic recession which followed in the 1990s. 

While the 1980s lasted, however, Western Australia generated a volume of legal work which many of us on the eastern side of the country could, for the most part, only envy, except when and if we were fortunate enough to receive the occasional brief to appear here.  Those briefs were special occasions.  The standards were exacting.  The scale and consequences of what was in issue were not infrequently vast and, most importantly, as it seems now looking back on it, the goodwill and fellowship extended to us by our Western Australian colleagues was, without exception, genuine and exceedingly generous.

Meanwhile, on the other side of the country we would not infrequently see the late David Malcolm, QC, as he then was, appearing on special leave days in Melbourne.  One could not help being struck by what a conspicuously outstanding advocate he was, and even more so that he was so much regarded as such by the then members of this Court. 

Years later we also had the very considerable pleasure of seeing Wayne Martin, QC, as his Honour then was, when he appeared in Melbourne in Victorian matters.

Now, in a sense, the wheel has come full term in that I am back here for the first time as a member of this Court for, among other purposes, hearing special leave applications in Western Australian matters. 

In the way in which litigation has tended to develop since the 1980s, there seems now to be fewer Western Australian cases that go to judgment and therefore on appeal, and thus fewer occasions for circuits of this kind.  Reference to the Commonwealth Law Reports also suggests that a greater proportion of appeals is now concerned with public law and crime than with the kind of private rights disputes which were once the dominant fare.  Possibly the reduction in the number of civil cases going to verdict is to be viewed as a good thing – interest reipublicae ut sit finis litium. 

The downturn is open to the interpretation that people are generally less litigious than they were in the past or perhaps that one or other of the much vaunted methods of alternative dispute resolution really is considered to be productive of satisfactory solutions.  I suspect, however, that the downturn has at least as much to do with increased costs of civil litigation and a consequent ever more widely held view that it is so now overpriced that it is no longer worth the candle.  If that is the case, it is certainly to be regretted because it means that the part of the law which touches and concerns the lives and livelihoods of a greater proportion of the population than public law and crime combined has ceased properly to function.

Of course, judges, including Judges of this Court, have been talking about increasing costs of civil litigation for decades and not a lot has changed.  Nor do I suppose that I know any better than they did what should be done about it.  But, at the risk of treading where one ought not go, may I offer you the thought, which I suppose will be familiar enough to those of you who practise in crime, that in the end it may not only be more fulfilling, but also more likely to preserve the best of the system which we hold dear, for counsel to be in Court on a fraction of a desired brief fee than to be waiting in chambers for something more remunerative to arrive.

The 1980s were in many respects wonderful while they lasted but, at least in our lifetimes, it is improbable that anything like them will ever come again.  We must make the most of what we have. 

Mr Howard and Mr Keogh, thank you once more for your observations and thank you all for the great courtesy which you do me by your presence here this morning.

GORDON J:   As the junior judge, I was tempted to say simply “I agree”, but that would deprive me of the opportunity to acknowledge publicly the significant contribution that the legal profession in this State made in shaping my career.

As you have heard, I did my articles at Robinson Cox, now Clayton Utz.  That was not my first exposure to that firm.  While I was studying at the University of Western Australia, I worked there at least one day a week.  It is not an exaggeration to say that the opportunities that were extended to me by that firm over four years were significant, and I learned more working than I did, I suspect, at law school.

Those opportunities and the training that accompanied them provided solid foundations for what would follow, foundations based on hard work, intellectual rigour and integrity.  In particular, I learned at a very early age that clients wanted a result.  Simply going through the process was not acceptable.  Those lessons were invaluable and were never forgotten.

My first appearance in any court in Australia was in the Perth Local Court.  Each articled clerk at Robinson Cox had to run a debt action and appear at the hearing of the trial.  I recall the event as though it was yesterday.  Euphoric terror best described how I felt.  I have subsequently learnt that it is a feeling that returns with every new challenge, including my most recent appointment as a Justice of this Court.

I am delighted to be back in Western Australia where, for me, it all began.  I look forward to coming back in the coming decades. 

Thank you for attending, and thank you, Mr Howard and Mr Keogh, for your kind words.  Not only do you honour me but, more importantly, you honour this Court.

NETTLE J:   The Court will now adjourn to reconstitute.

AT 9.47 AM SHORT ADJOURNMENT