Farewell to Gummow J [2012] HCATrans 250

[2012] HCATrans 250

[2012] HCATrans 250

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

AN OCCASION TO FAREWELL

THE HONOURABLE JUSTICE WILLIAM GUMMOW, AC

AT

SYDNEY

ON

FRIDAY, 5 OCTOBER 2012, AT 9.13 AM

GUMMOW J:   Yes, Mr Coles.

MR B. COLES, QC:   May it please the Court. 

This morning is the last occasion on which your Honour Justice Gummow will be sitting in public as a Justice of this Court.

Next Tuesday, as we understand it, the relatively unambiguous provisions of section 72 of this nation’s Constitution dictate that your Honour’s term of office as a Justice of this Court comes to an end.

It is a considerable privilege, on behalf of the New South Wales Bar, and in the company of so many of my distinguished colleagues, to farewell your Honour and to celebrate, however inadequately any attempt must be, your Honour’s extraordinary contribution to the administration of justice in this country.

Your Honour came to the New South Wales Bar in 1976, having been for the previous decade a solicitor in a large city firm, where for about seven of those years your Honour was a partner. 

At our Bar your Honour practised with extraordinary success, particularly in equity and commercial law, and constitutional and intellectual property law.

Your Honour occupied chambers on 8th Floor Selborne and appeared with all of the leading silks of the time and regularly with Sir Maurice Byers, Roddy Meagher QC, Theo Simos QC and many others, but in many of the cases which your Honour did your Honour appeared unled and with exceptional success.

A short survey of the law reports spanning your Honour’s time at the Bar reveals a practice of exceptional breadth and significance.  After 10 years at our Bar your Honour must have had one of the busiest practices of any barrister in this State, judging, if only by the impressive number of published and reported cases in which your Honour appeared at the time. 

It was no surprise, therefore, when your Honour was plucked from our ranks and appointed a Judge of the Federal Court of Australia in 1986.

Your Honour served on that Court until April 1995, when your Honour was appointed to this Court and that appointment was widely acclaimed.  At that time, 17 and a half years ago, it was said that the High Court had gained a Judge endowed with powers of impeccable legal reasoning, encyclopaedic knowledge of the law and an international reputation as a scholar in the field of equity.

These expectations at the time have been wonderfully fulfilled in your Honour’s contribution to the demanding work of this Court. 

No short summary of the range and quality of that work could be accurately or sufficiently attempted.  Well over 60 volumes of the Commonwealth Law Reports serve as a permanent record of your Honour’s judicial expression and of the attainments of this Court with your Honour’s well‑regarded intellectual assistance.  Thousands of transcripts record the vigour and insight with which your Honour has grasped and tested the arguments of counsel, nearly all of whom your Honour has suffered gladly enough. 

Paramountly, your Honour has had a keen eye for the merits of issues.  Your Honour has been no stuffy mere black letter technical lawyer.  With due restraint, the “visitation jurisdiction” has been regularly invoked on special leave hearings where on occasions, to the technical spectator, the considerations might not otherwise have seemed promising.

Apart from scholarship and industry in judicial life, your Honour will be remembered for many years to come as a notable educator.  For over 25 years your Honour lectured at the University of Sydney which, over 20 years ago, conferred on you the degree of Doctor of Laws (honoris causa).  Your Honour has, both before and during judicial office, been the recipient of many notable civic and public awards, but we may suppose that amongst those which your Honour would be more likely to have cherished the awards that have come from universities would be perhaps amongst the more notable.

Your Honour’s educative influence on the profession has been quite profound.  Several generations of lawyers, trained in casebooks have, by your Honour’s instruction and example, learned that legal analysis usually starts with the closest possible attention to the applicable statutory language. 

According to Sir Frederick Pollock in his correspondence with Oliver Wendell Holmes, when Lord Blackburn retired from the House of Lords, he said “Damn the Law” and thereafter he read nothing but French novels.  But, in your Honour’s case, while your period of federal judicial service totalling some 27 years altogether now shortly comes to an end, there is no one who believes that with this will terminate your Honour’s ongoing concern for and continuing contribution to the explication and dissemination of the law. 

In whatever form that may take, the New South Wales Bar wishes your Honour every happiness in your retirement. 

May it please the Court.

GUMMOW J:   Thank you, Mr Coles.  Mr Ulman.

MR G. ULMAN:   May it please the Court.

I appear on behalf of the Law Society of New South Wales and its 25,000 solicitor members.  Society President Justin Dowd is unable to join us today, but has asked me to pass on his best wishes for your Honour’s last sitting day in Sydney and for the future.

As your Honour was advised in the early days of your career, generous remarks made at one’s swearing‑in ceremony may seem impressive, but “It’s what is said when you leave that really matters”. 

I think if anything, the accolades attributed on the occasion of your Honour’s elevation to the Federal Court bench and subsequently to this, the highest Court of Australia, have been further exemplified in recent years.

You have outlasted all of your colleagues present on the Bench at the time of your Honour’s swearing in and, indeed, have been one of the longest serving members of the High Court of Australia - some 17 years.

Your Honour has been variously described as the High Court’s barometer on constitutional law disputes, the Court’s intellectual leader, one of the most influential judges in recent Australian history, and a great judicial politician and alliance builder.  Your Honour is the author and editor of several highly regarded texts on equity and trusts. 

You have also been described as a voracious reader, a penetrating questioner with a rapier sharp wit, and not afraid to take on governments of the day, as was noted in your Honour’s part in ruling that the closing of the electoral roll on the day the writs for elections are issued was unconstitutional, that the law preventing New South Wales bikies from associating with each other was illegal, as was the Federal Government’s bid to divert asylum seekers to Malaysia. 

However, on occasions, your Honour was known to relinquish your perceived role as the Court barometer, as was noted, for example, in the 2004 case of Al‑Kateb v Godwin where you joined the then Chief Justice Gleeson and Justice Kirby in finding that the Migration Act should not be interpreted to permit indefinite detention.

There are times when your Honour’s patience would have been tested.  Take the 2003 case of Wilson v St George Bank & Anor, concerning an application for special leave to appeal against a New South Wales Court of Appeal finding in relation to the right to go to trial by jury.  After various submissions amounting to what your Honour described as “total constitutional incoherence” from the applicant, Mr Wilson, and being asked if you were a dictator because the applicant was cautioned about directing questions to the Bench, your Honour had the final word, and I quote from the transcript:

Your Honour:   Yes.  Well, the red light is now on.

Applicant:   It is not going to stop me.

Your Honour:   I am afraid it is.  We will hear you no further.

We are extremely fortunate in this State to have benefitted from your Honour’s skills and expertise throughout your 10 years as a solicitor, and then partner at the firm of Allen Allen and Hemsley, and a further 10 years at the New South Wales Bar before your appointment to the Federal Court bench.  Your generosity of time and willingness to mentor and guide young practitioners, in addition to devoting some 30 years to imparting your encyclopaedic knowledge and advice to impressionable young minds at Sydney University Law School, has rightly earned your Honour the greatest respect and loyalty.

Much has changed since your Honour was admitted to practice in 1966, but an enduring legacy has been your co‑authorship of one of the most influential and authoritative law texts published in Australia and which has been a reference point for scholarly analysis since 1975.  I am referring to Equity:  Doctrines and Remedies written in partnership with the late Roddy Meagher and the late John Lehane. 

Your Honour, I fear that my allotted time is drawing to a close and “the red light is on”.  So I conclude by wishing your Honour a very happy, healthy and fulfilling retirement. 

As the Court pleases.

GUMMOW J:   Thank you, Mr Ulman. 

Mr Coles, Mr Ulman, judicial colleagues from other courts, members of the legal profession, ladies and gentlemen.

The Court is gratified by the mark of esteem for its work and its place in the national and federal structure of government, which is shown by your presence here this morning.

The newest member of the Court, as has been mentioned, will take his place on the Bench in the commodious Number 1 Court – it is much more commodious than this Court – in Canberra next Tuesday.  Sitting on the Bench behind the seven Justices will be seven former members of the Court.  The period of service of those former members begins 40 years ago in 1972.  This will be a visible reminder of the continuity within the institution which is summoned into existence by Chapter III of the Constitution.

As a personal matter, it is gratifying to see here this morning a number of former associates who are well established in the profession, or very much on the way to being so.  The great strength of the law has been the continuous process of regeneration amongst those who are called to practice it.  There is no greater professional satisfaction to a Judge of this or, I suggest, any other court than in sitting on a case where a fresh counsel makes a first‑class fist of a difficult brief.

I trust that some of the compliments paid by the speakers this morning were well merited.  I fear though that some of them referred to joint judgments in which the bulk of the writing was by other colleagues.  Much speculation takes place from time to time on this subject.  Attributions are made which are wide of the mark.  There are some clues, which I suggest to you.  If you see the phrase “a possible point of view”, that suggests it is Chief Justice Gleeson speaking.  If you see the phrase “the knife in the napkin”, that suggests the involvement of my colleague sitting today on my right.

What is assured by the scheme of the Constitution, and the place in it of Chapter III, is that great and small conflicts and controversies will be resolved by the strict logic and high technique of the common law system, not simply by temporary expediency.  The notion of “strict logic and high technique”, a phrase of Baron Parke’s, I think, carries within it the paradoxical idea that things will change if they are to remain the same.

I should also say something respecting the work of a judge sitting at first instance.  Those who focus upon the decisions we give here, I fear tend to overlook the importance of that work.  But I hope that this Court has not overlooked that importance.  Indeed, primary judges tend to do rather well here.  From time to time the Sydney Justices come upon a trial judge in Phillip Street with an added spring in his or her step.

I am grateful to the speakers for their generous remarks this morning.  But I know that they will allow me to say that the most treasured observation respecting my judicial work was received long ago – that is to say in about 1987 when I was a very new primary judge.  Sir Nigel Bowen, the Chief Justice of the Federal Court had a practice of suddenly appearing unannounced and silently at the back of the courtroom when the new judge was wrestling with a case.  This was a little off‑putting.  I have been suggesting to Chief Justice Bathurst that he implement it downstairs, but he is resisting the proposal.

I was sitting on a case in which counsel was quietly and effectively probing the evidence of an expert witness in, I think, a mechanical patent case.  Sir Nigel suddenly emerged in the back row and sat there for a while and then he went out.  Now, what follows next requires an understanding of a basic proposition, which is that trial judges then and now overestimate the discretion of their associates.  My knowledge now to be stated follows from that lack of discretion.  As Sir Nigel went back into his Chambers he was muttering to himself and he said, “He runs a quiet court” and he then said “I think he will be able to write, too” and then the door shut.  Fortunately, the information got back. 

Again, the Court thanks you for your attendance here this morning, but we have a special leave list ahead of us.  We will take a short adjournment.

AT 9.29 AM SHORT ADJOURNMENT