Hayne J - Welcome Melbourne - CER

[1998] HCATrans 319

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 KENNETH MADISON HAYNE

AT

MELBOURNE

ON

FRIDAY, 11 SEPTEMBER 1998, AT 9.15 AM

Coram:

HAYNE J

Speakers:

Mr D. E. Curtin, QC, Chairman of the Victorian Bar Council

Mr A. Scott, President of the Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

HIS HONOUR:   Mr Curtin.

MR CURTIN:   If your Honour please.  I am aware that this ceremony is to be brief, your Honour, but I trust that if I do go on a little longer I will not be subjected to the amber and red lights.

Nearly a year has elapsed since your Honour was welcomed, in Canberra, to the Bench of this Court.  On that occasion my predecessor, Neil Young, QC, rightly stated that the Victorian Bar was honoured by your appointment to this Court, and claimed that although you are Queensland born, you are nevertheless “a very distinctive product of Victoria and of the Victorian Bar.”  He was at paints to point out, for example, that you received none of your eduction in Queensland.

By now your Honour’s academic achievements, including your Honour’s Victorian Supreme Court  Prize, E.J.B. Nunn Scholarship and Rhodes Scholarship, are well known.  Your enormous practice as a barrister is now legendary and may be said to be growing with every elevation, traversing the law of equity, company law, insurance, oil and gas, banking and public law.  Your valuable contribution to the development of Australian law as a judge of the Victorian Supreme Court , the Victorian Court of Appeal (appointed on its creation), and now as a judge of the High Court of Australia, are a matter of public record.  In these circumstances perhaps I may be permitted to emphasise today your Honour’s close and enduring connection with the Victorian Bar.

Your Honour signed the Bar roll in 1971, reading with John D. Phillips, now a Judge of the Court of Appeal of this State.  As you built your large practice, and tutored at Newman College, you made time to take on no fewer than seven readers, most of whom are still at the Bar:  Michael McNamara, Hugh Fraser, Geoff Nettle, QC, Alexandra Richards, Brendan McCarthy, Will Houghton, QC, and Paul Cosgrave.  You have followed each of their careers with interest.  You particularly appreciated our Bar’s spirit of camaraderie. 

At your welcome you stated that, at the Bar, “that most individual of professions”, the work you did “was so often done with others - leaders, juniors, solicitors.”  In a moment of understatement, you also once said, and I quote, “Those with whom  I shared chambers shared with me more than the photocopier or the teapot.”  You took silk in 1984.  You appeared in this courtroom many times as a member of our Bar, often as the junior to the judge whom you have ably replaced on this Court, Sir Daryl Dawson.  You served on some of the Bar’s most important committees, including the Barristers’ Disciplinary Tribunal, and the Rules Committee of the Supreme Court .  At your welcome in Canberra, mention was made of your Honour’s instrumental role and many hours of hard work in constructing a Victorian Bar Readers’ Course of the highest national and international standing.  As a judge of this State your Honour was, of course, better able to keep in close contact with the Bar, but any fears that may not have continued have been allayed by your Honour’s attendance at the Victorian Bar Dinner in May of this year, together with Sir Gerard Brennan and Justice Kirby of this Court.  More recently, we were honoured to have your Honour as our guest at the Bar’s annual reception for the judiciary.  When your Honour is in Melbourne he always takes time, if he can, to lunch at the Essoign Club and keep in contact with members of the Bar.

The pleasure of the Bar at your appointment to this Court is amplified by your presence in Melbourne today.  Your Honour’s many judgments published since your swearing-in, in what has been in many ways a testing year for the High Court, have confirmed expectations that you will uphold the standards set by other Victorian judges appointed to the High Court, including Sir Daryl Dawson, Sir Ninian Stephen, Sir Douglas Menzies, Sir Wilfred Fullagar and Sir Owen Dixon.  The breadth of your legal knowledge, the subtlety of your analytical skills, and your capacity for hard work are all manifest.

At your welcome in Canberra you stated that when you were a trial judge, it seemed that the difficulty of the work was caused by the appellate courts, and as an appellate judge you tend to look elsewhere for the source of your difficulties.  It has been famously said that barristers are not paid to agree with judges, but I hope and trust that your Honour, as a member of Australia’s ultimate court of appeal, will find yourself looking towards members of the Victorian Bar, and the Bar Council itself, as a source not of difficulty but of assistance.  We look forward to appearing before you in our home State, and we hope that we will frequently have the opportunity to repay with our hospitality your enduring contribution to the life of our Bar.  If your Honour please.

HIS HONOUR:   Thank you, Mr Curtin.  Mr Scott.

MR SCOTT:   May it please the Court.  On behalf of the solicitors of the State of Victorian, may I join with the Chairman of the Bar in welcoming your Honour home.

It really does matter that your Honour is a Victorian.  People close to the law do talk about the High Court and it is with pride that many solicitors and barristers emphasise where it is on the map that your Honour calls home.

A recent report on Equality of Opportunity by the Victorian Bar identified old school tie connections as still being powerful in life at the Bar.  That report is an important one, which is being acted on currently by both the Victorian Bar and the Law Institute.  Your Honour can rest assured that a search of the data base of the Old Scotch Collegians Association, and of its magazine, have failed to turn up any compelling evidence that the old boy’s network has been, as it were, at it.  Apart from a small mention when your Honour first joined the Bench and the photograph in the Association magazine, aptly called Great Scot, there is previous little that could be learned from this background.  The conclusion one is led to is that your Honour’s progress through the ranks has had everything to do with talent and hard work.

We can reflect, too, that your Honour’s early decision to study political science at the University of Melbourne, before switching to law has proved a double blessing, since it is not unfair to observe that Scotch has done more than its share for the political life of this State and nation.

As a law student, one of your Honour’s first steps in widening your world was, we are told, to go to the farewell from this Court of Sir Owen Dixon, surely a memorable time in anyone’s life, especially that of a young student. 

Your Honour edited the Law Review with distinction, helped organise a national students conference in 1966, captained the Melbourne University’s law school mooting team.  This zeal to contribute showed itself, too, in your role as chair of the Centre for Corporate Law and Securities Regulation, perhaps not one of the nation’s best known bodies but, nonetheless, highly important.

This, and the apparent quietude of your school days makes it charmingly ironic that your Honour has already emerged as a guest in over a million living rooms around this country courtesy of the ABC documentary, “The Highest Court in the Land”.  During this documentary, your Honour admitted to being daunted in your new role, adding, “But then again perhaps I should be daunted”.  Being appropriately daunted is clearly a good thing.  There will be several dozen athletic young men at the MCG tomorrow just before 2.30 in the afternoon who, as they lurch from extreme anxiety to adrenalin charged apprehension, may well reflect on your Honour’s as a source of comfort.

It is fair to say that the Court of Appeal’s great loss was this Court’s immense gain when your Honour was elevated to the High Court.  Although there was no need for such a reminder, it became even clearer on your elevation that we had among us an outstanding figure.

At the time of your Honour’s advancement to this Court, you were relatively unknown to the national press and there followed a furious round of attempts to try to discern what are called “a Judge’s learnings” so that the pundits and soothsayers of the media could wisely chatter amongst themselves and others with confidence about the supposed direction this Court would then take with your Honour as a member.  They, and the rest of Australia, will soon see, and already have seen that your Honour will simply call the issues as you see them.

On behalf of the Law Institute of Victorian and all solicitors of this State, I congratulate your Honour and wish you well for the future.  May it please the Court.

HIS HONOUR:   Thank you, Mr Curtin and Mr Scott, for what you have said.  It was unduly generous of you and there are, I fear, far too many people in this room who know the truth for me not to acknowledge the skill of your embroidery but, nevertheless, I thank you for it.

At first sight it may seem strange that this should mark my first sitting in Melbourne.  After all, as some of you know, over the last 12 months I have sat quite often in this room and other rooms in this building to deal with chamber matters and not always during ordinary business hours but it is, however, the first time I am to sit in my home city as a member of a Full Court.  The elapse of 12 months can, no doubt, be attributed to the number of applications for special leave from decisions in which I participated in the Court of Appeal.

I have said on a number of occasions how important I think it is that the Court should sit in each of the States’ capitals.  The Court is a national court.  In the words of section 71, it is a Federal Supreme Court in which is vested the judicial power of the Commonwealth.  It is to hear and determine appeals from all judgments, et cetera, of any other federal court or court exercising federal jurisdiction or of the Supreme Court of any State.  And for that reason, if no other, although Australia is a Federation, there are times when it is right to speak of an Australia common law or a national legal system and it is important then that the Court should do its work here and in the other State capitals.

The work of all courts is under close scrutiny.  It is inevitable and it is right that that should be so.  The work that the courts do is important to the society in which we live and it is because the work is important and because it must be open to examination that the courts transact their business in public.  It is also for those same reason that this Court has taken the various steps that it has to make what it does available to those who are interested, whether by publishing all of its transcripts of argument of every case, large or small, on the Internet; publishing its reasons for judgment in the same way and, more recently, publishing short particulars of appeals that are yet to be heard also on the Internet.  So, even these proceedings will end up as a computer file upon which the unwary net surfer might stumble.  I have no doubt, however, that the computer files for proceedings later in the day will have rather more interest and importance for litigants, leave aside whatever excitements participants and onlookers may gain from them.

May I thank you all for taking the time and trouble to come here today.  I do appreciate it.  The Court will adjourn to reconstitute.

AT 9.29 AM THE COURT ADJOURNED