Ceremonial - Occasion to mark retirement of Mason CJ S00/1995 [1995] HCATrans 97 (18 April 1995)

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

SPECIAL SITTING

FAREWELL TO

THE CHIEF JUSTICE SIR ANTHONY MASON, A.C., K.B.E.

AT

SYDNEY

ON

TUESDAY, 18 APRIL 1995 AT 9.17 AM

Coram:

MASON CJ

DEANE J

McHUGH J

Speakers:

Mr D.M.J. Bennett, representing the New South Wales Bar Association

Mr N.D. Lyall, representing the Law Society of New South Wales.

TRANSCRIPT OF PROCEEDINGS

MR BENNETT: May it please the Court. The President of the New South Wales Bar, Mr Murray Tobias, apologises for his inability to be here today. He will address your Honour at somewhat greater length on Thursday. This is your Honour's last special leave day in Sydney - indeed, the last time your Honour will sit other than ceremonially and for that reason, the last time that your Honour will sit bare-headed.

Since the High Court moved to Canberra, members of the Sydney bar have had less opportunity to see your Honour in action than formerly, except on special leave days. On those days, we have learned much from your Honour. We have learned about brevity; we have learned about conciseness and we have learned about clarity. Indeed, so effective has your Honour's training of the Sydney bar been that the amber and red lights that the Court has installed for the benefit of our brothers and sisters south of the Murray have been largely unnecessary in Sydney.

Notwithstanding your Honour's efficient approach to the arguing of cases, your Honour is also noted for your tolerance. One of your Honour's first cases on the bench was a five-week trial shortly after your Honour's appointment, involving one of Australia's better-known litigants in person. Your Honour presided over that trial with such consideration and tolerance and understanding that your Honour, I am sure, achieved the ultimate accolade of a good judge: that of sending the losing litigant away satisfied that he or she has received a fair hearing, whatever the view of the result.

When your Honour lectured my generation of Sydney University law school students in equity, what struck us most was the erudition with which your Honour understood the most complex and intricate doctrines of that subject and the skill with which your Honour was able to impart those doctrines to those whose intelligence and legal ability was considerably less than your own. Since then, under your Honour's leadership, the Court has done much to break down the intricacy and complexity which you so lovingly imparted to us.

In the area of estoppel, formerly a maze of conflicting and intersecting principles, the Court has introduced unity. The homely truths of Donaghue v Stevenson have been extended to occupiers' liability, to damage caused by negligent certifications by public authorities, to negligent conduct by customers towards their banks and even to the citadel of Rylands v Fletcher itself. Probably the most incomprehensible area of the law to a student - section 92 - has been explained by your Honour's Court to such an extent that now students of that section need to study but one case. Your Honour's leadership in these areas has done more for the law in Australia than any other factor to which one can point in the last decade.

No doubt your Honour will now choose between the various careers open to retired judges. Your Honour could do what so many judges say they are going to do, retire to the practice of gardening. Knowing your Honour, this option appears to be the least likely. Your Honour could retire to the modern equivalent of this activity, computer games, but somehow it is difficult to envisage your Honour playing Streetfighter at Time Zone. Your Honour could follow a number of retiring New South Wales judges and become an arbitrator. This would enable many litigants to obtain for a fee what has otherwise been unobtainable without the hurdle of special leave - your Honour's judgment on their case.

Your Honour could follow other judges and become a mediator, continuing the task developed with such skill in special leave applications, of reducing the work-load of the court. Your Honour could become an international mediator, enjoying the scenic beauty and historic interest of such tourist centres as Sarajevo, Gaza, Phnom Penh and Belfast.

Finally, of course, your Honour could simply devote yourself to answering all those journalist questions to which your Honour's previous answer has had to be "no comment".

Your Honour has been one of the great Chief Justices of this Court and your Honour has made an enormous impression on the legal profession during your period as Chief Justice. Whatever activity your Honour chooses to engage in, the Bar of New South Wales wishes you longevity and prosperity in your future career.

May it please the Court.

MASON CJ: Mr Lyall.

MR LYALL: May it please the Court. Your Honour, I am personally very pleased to be able to speak on this occasion today on behalf of the 12,000 solicitors of New South Wales and to join with and adopt the remarks which have been made by Mr Bennett.

Your Honour was admitted at about the same time as I started in the law as an articled clerk. As your career has spanned the same period as my involvement in the law, I have over those years been able to observe what has been a distinguished career. Thus I can strongly endorse what Mr Bennett has said of your Honour's achievements at the Bar, as a Solicitor-General, and then as a judge.

More often than not I have, in the years since you became a Judge, been persuaded by your Honour's judgments, even when you were in the minority. In saying this, I recall one of my cases where my clients were unsuccessful on a limitation point. I thought the reasoning of your Honour's dissenting judgment in favour of the arguments of my clients was most persuasive. Sadly, from my client's point of view, that was not the majority opinion. But the law has since been changed by legislative intervention.

Your Honour, on behalf of the solicitors of New South Wales, I express our wishes that your future ventures will be satisfying and rewarding, as well as enjoyable. I think you may well need our good wishes because I wonder how you will fare in the academic communities here in Australia and next year in Cambridge, when the students realise that they have, in their midst, a former judge who was responsible for depriving them of the pleasure of studying the rule of Rylands v Fletcher and the pleasure of reading such fascinating cases as Hollywood Silver Fox Farm v Emmett. I believe, however, that you will thrive in that environment. Your Honour, we wish you well for the future.

MASON CJ: Mr Bennet and Mr Lyle, I thank you for all that you have said. Some might accuse Mr Bennett of making bricks without straw. In my own interest, I would prefer to say that, with his usual skill, he has put to the best possible use the materials at his disposal.

To some extent, I share the sentiment expressed by Justice Blackman on his retirement from the Supreme Court of the United States. He said, "It has been a great ride." But I am no horseman, and the Supreme Court of the United States is more of a bucking bronco than the High Court of Australia, so I shall content myself with saying that it has been a wonderful experience to have served for so long on the High Court of Australia. I could not think of a more stimulating way to have spent what amounts to half my working life.

I have not given a great deal of thought to what I shall do after retirement, although some reference has been made to it and many possibilities have been opened up by Mr Bennett this morning. It is, perhaps, significant that I was presented only four weeks ago, by the judges in Victoria - the Supreme Court Judges and the Federal Court and Family Court Judges sitting in that State - with a book on gardening in Provence. Chief Justice Black said, when presenting me with the book, in the nicest possible way that he thought that the Australian Judges would like to see me taking up gardening and preferably in Provence.

I am especially pleased by the attendance of so many members of the profession in this courtroom this morning. I had not realised, until now, that it could hold so many people. The attendance this morning I regard not only as a tribute to myself but as a tribute to the High Court. The relationship between the Court and the profession during my period on the Court has always been harmonious, co-operative and productive and there is no better illustration of that than the current regime governing special leave applications, which was developed by the Court in conjunction with consultation with the profession. But the relationship between the Court and the profession, as I have described it, has contributed in no small measure to the effective working of the Court.

Having said that, and thanking you all once again, the Court will now take a brief adjournment before commencing with this morning's list.

AT 9.27 AM THE COURT ADJOURNED