SPECIAL SITTING - Welcome to Keane J - Sydney

[2013] HCATrans 59

[2013] HCATrans 059

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

SYDNEY

ON

FRIDAY, 15 MARCH 2013, AT 9.15 AM

KEANE J

Speakers:

Mr P. Boulten, SC, representing the New South Wales Bar Association

Mr J. Dobson, President of the Law Society of New South Wales

TRANSCRIPT OF PROCEEDINGS

HIS HONOUR:   Good morning, Mr Boulten.

MR P. BOULTEN, SC:   If your Honour pleases.

On behalf of the barristers of New South Wales, it is my privilege to welcome you to your first sittings in Sydney as the 50th person to be appointed as a Justice of the High Court of Australia.

Although as a barrister your Honour was not a complete stranger to Sydney, your Honour’s appearances at the Sydney Bar were relatively infrequent.  The Bar Association’s records note that in your Honour’s application for a practicing certificate in October 2001 you responded to the question:  “Your estimate of the amount of time you will spend as a barrister in practice in New South Wales” was answered, “Approximately one week”.  That would seem to have been in preparation for your appearance in WorkCover Queensland v Seltsam Pty Ltd in the New South Wales Court of Appeal.

But the paucity of your appearances here did not diminish the warmth of your welcome, led by Tom Bathurst QC, as he then was, when a little under three years ago, your Honour was welcomed to the Federal Court in Sydney for the first time in your capacity as Chief Justice.

On that occasion in your reply, your Honour paid tribute to one of the most esteemed members of the New South Wales Bar and the founding Chief Justice of the Federal Court, Sir Nigel Bowen.  In particular, you recalled his vision of “a court of excellence, innovation and courtesy”.

Your Honour’s time at the helm of the Federal Court was by every measure faithful to Sir Nigel’s values and vision for the Court.

Your Honour is respected for having “prodigious industry, consummate grasp of principle, talent for clear exposition of facts and principles” and “a well‑earned eruption for producing judgments of the highest quality with remarkable dispatch”.

Indeed, The Australian newspaper re‑christened you “Speedy Keane” in recognition, they said, of your Honour’s efforts to resolve cases more quickly.

Since 2010, your Honour has, of course, visited Sydney on a number of occasions.  As guest of honour at our Bench and Bar Dinner in 2011, you likened the tone of other State bars to Oscar Wilde’s frivolous comedy, The Importance of Being Earnest, and contrasted it with the tone of the Sydney Bar, which you said was akin to . . . Macbeth.  Your comment was received warmly on the night, although some did enquire later at the Bar Library as to whether your Honour had provided written reasons.

Your Honour is known for using colourful, yet highly effective metaphors.  You once said Australia has done quite well with its “small brown bird of a constitution”.  You have depicted the State Solicitors‑General of the 1980s as “the Army of Northern Virginia” battling courageously against overwhelming federal forces, before the tide turned inexorably against them at their Battle of Gettysburg.

I expect, though, that your Honour’s time in this Court will provide a much more satisfactory experience than was General Robert E. Lee’s at Gettysburg.

On behalf of the New South Wales Bar, I welcome your Honour back to Sydney and I extend our warmest congratulations on your appointment to the High Court.

HIS HONOUR:   Thank you, Mr Boulten.  Mr Dobson.

MR J. DOBSON:   May it please the Court.

Events in history might cause some people to consider the Ides of March a less than auspicious day for a celebration but Sydneysiders are not an overly superstitious a lot and welcome every opportunity to now extend their hospitality to you.

Accordingly, it is a privilege and a pleasure to welcome your Honour to Sydney.  On behalf of the Law Society of New South Wales and the State’s 26,000 solicitors I extend our congratulations and good wishes on your elevation to this Court.

Your Honour lays claim to being the shortest serving Chief Justice of the Federal Court of Australia but in the High Court, simply by you turning up for your swearing‑in ceremony, your Honour had already been pipped at the post – by a century.

In March 1913 the 7th appointee to this Court, the late Albert Bathurst Piddington, resigned his seat amid controversy over his selection by the then Prime Minister, Billy Hughes.  It was reported that Hughes meanwhile, unaware of Piddington’s resignation, was on his way to attend the Piddington swearing‑in ceremony in Sydney.

Unlike Piddington, your Honour’s appointment has been universally applauded.

Colleagues have described your Honour as a true Renaissance man with the intellectual rigour of a strong black letter lawyer and a fountain pen to rival any technology when it comes to judgment writing – although I am informed that legibility is not your Honour’s strong point.

Your Honour is a prolific reader of literature and history, particularly when it pertains to your own Irish heritage.

Indeed if your Honour extends your visit until Sunday you will see how committed we are to wearing the green and add to the celebrating of our own Irish heritage with street parades, song and dance, family picnics and pints of Guinness.  Sydney’s St Patrick Day event is reputed to be one of the top five celebrations in the world and the largest in the southern hemisphere.

More frequent trips by your Honour to Sydney, which is often regarded as the gateway to the world and renowned for its Opera House and stunning harbour, will provide additional benefits for your Honour during your stay.

In particular, this year we will be hosting two of the three State of Origin home games at the ANZ Stadium.  Having coerced the Cane Toads, who I understand are Queenslanders, to our city perhaps your Honour could also facilitate the migration of the Queensland Bulls cricket team who could then gain their New South Wales team cap and at the same time their Aussie team cap.

Your Honour, the solicitors of New South Wales look forward to serving you when you next visit Sydney.

As the Court please.

HIS HONOUR:   Thanks, Mr Dobson. 

Mr Boulten, Mr Dobson, ladies and gentlemen, it is very kind of the profession in Sydney to extend yet another welcome to me, even though I have been sitting downstairs, albeit at another court, on the 21st level for the past three years.  I am glad that at least my engagement with the profession in Sydney over that time has not been so unsatisfactory that I have worn out my welcome entirely. 

Before I was appointed to the Federal Court, I held the profession in New South Wales in a very high regard and my experience over the last three years has only served to strengthen that view.  Indeed, so much did I come to enjoy sitting in Sydney that it was a matter of some frustration that I was not able to sit here more often.

My experience over the last three years has also engendered a deep appreciation of one of the distinguishing strengths of the legal profession in New South Wales and that is the extent to which skills, experience and insight of advocates and instructing solicitors and academic lawyers are brought together.  This creative symbiosis is very strong in the profession in this State, and that is very much to the great advantage of the administration of justice that that is so. 

Elsewhere in the common law world there has been a tension between academic lawyers and practising lawyers.  It can be seen illustrated in the backhanded tribute paid by Justice Felix Frankfurter, a great academic lawyer, to Justice Robert Jackson, generally regarded as the most brilliant advocate of his generation, after the latter’s death.  Frankfurter said, “The function of the advocate is not to enlarge the intellectual horizon.  His task is to seduce, to seize the mind for a predetermined end, not to explore paths to truths.”  There can be no doubt that Justice Jackson was specially endowed as an advocate.  I am sure that Justices Gummow and Heydon, two most eminent members of the Bar of this State would not, despite their distinguished academic attainments, subscribe to this view of the role of the advocate as oleaginous seducer.

With great respect to Justice Frankfurter, the art of advocacy should not be so traduced.  Certainly Sir Owen Dixon would have been appalled by the suggestion that it was not the role of the advocate to aid the court to explore paths to truth or to enlarge the intellectual horizon.  To suggest that courts are susceptible to seduction by advocates sets little value on judicial intelligence, while also seriously devaluing the contribution of practising lawyers to the administration of justice.

The New South Wales Bar has a long tradition from Sir Frederick Jordan and, indeed, from before that, through Sir William Deane, Sir Anthony Mason, Justice Gummow and Justice Heydon where the skills of the advocate and the erudition of the academic have been deployed together in the search for truth and in the expansion of intellectual horizons. 

This symbiosis continues to flourish today in both branches of the profession.  It has been one of the great joys for me of sitting in Sydney to have benefited from that symbiosis, and I think it is one of the glories of the New South Wales profession. 

Thank you once again for your kindness in welcoming me again this morning.

Adjourn the Court, please.

AT 9.28 AM SHORT ADJOURNMENT