Ceremonial Sitting - Farewell to the Honourable Sir Daryl Dawson, AC KBE M00/1997 [1997] HCATrans 265 (25 August 1997)

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 HONOURABLE SIR DARYL DAWSON, AC, KBE, CB

AT

MELBOURNE

ON

FRIDAY, 15 AUGUST 1997, AT 9.32 AM

BRENNAN CJ: The Court is honoured this morning to have sitting with it His Excellency, the Governor of Tasmania, Sir Guy Green, sometime Chief Justice of the Supreme Court of Tasmania, whose presence is welcomed amongst us. Mr Associate.

Associate: Motions generally.

BRENNAN CJ: Mr Solicitor for the Commonwealth?

Mr Solicitor for Victoria?

Are there any other motions? Mr Young.

MR N. YOUNG, Chairman of the Victorian Bar Council: Today is the last occasion on which your Honour Justice Dawson will sit as a Justice of the High Court. As such, this occasion is tinged with elements of both sadness and celebration.

The Victorian Bar is sad indeed to see such a fine lawyer as your Honour retire from the High Court, even if it does follow 15 years of outstanding service to the Australian community. Anyone who has observed your Honour in Court, whether as a single Judge sitting in Chambers or as a member of the Full Bench of this Court, would instantly appreciate that they were watching a great judge in action. Your Honour's work has always been characterised by great legal skills, diligence, scholarship, courtesy and humanity.

Your Honour also brought very special skills to the High Court. Amongst them was an unrivalled knowledge of the criminal law, the trial process, and the law of evidence. Many cases testify to that including cases such as Giorgianni v R, [1985] HCA 29; (1985) 156 CLR 473 and Shepherd v R (1990) 170 CLR 53.

This occasion also provides your Honour, and the Victorian legal profession with the opportunity of celebrating a job well done. Fifteen years of distinguished service on this, Australia's highest Court, is a great accomplishment. The Bar, in particular, recognises the onerous burden that is about to be lifted from your Honour's shoulders. I refer not only to the task of writing judgments of such clarity and cogency that they are sure to have a lasting impact on the development of our law but also to the exemplary way in which your Honour has managed the Court's chamber business in this State.

The Victorian Bar is indeed grateful for your many years of support to our independent Bar, both as a judge of this Court and, before that, as a barrister. Your Honour signed the Bar Roll in 1957. You read with B.L. Murray QC, later to become Victorian Solicitor-General and a judge of the Victorian Supreme Court. Your Honour shared chambers in Owen Dixon Chambers with Sir James Gobbo, now Governor of this State, as well as with other great figures from our Bar including Sir Edward Woodward, Mr Justice O'Bryan, recently retired from the Supreme Court , Judge Kelly, Judge Dyett, Brian Shaw QC and Haddon Storey. Your readers at the Bar included two of our Bar's recent appointees to the Federal Court and the Supreme Court, Justices Goldberg and Chernov. Your other readers were Mr Justice Hansen, Strachan QC and Wraith. From 1971 until 1974, Your Honour served on the Bar Council. Your Honour was also chairman of the Ethics Committee. From 1974 until your appointment to this Court, you served Victoria as its Solicitor-General.

Your Honour is remembered at the Bar and by the public as one of the finest advocates that this country, and certainly this State, has produced. Now that your retirement is upon us, I hope that your many achievements and distinctions as a practising member of our Bar will not be overshadowed by your outstanding service to the High Court.

If there is any consolation to be had from your Honour's retirement, it is that your Honour will be replaced on this Court by another fine Victorian lawyer, Justice Hayne of our Court of Appeal. Your Honour was appointed to the Court in 1982 to replace another Victorian, Sir Keith Aicken. The Victorian Bar would be gratified to see Canberra continue the practice whereby a Victorian on the High Court is replaced by a Victorian, provided, of course, it does not set a limit on appointments which are justified by the depth of talent in this State.

In closing, let me mention one small anecdote from your Honour's time at the Bar. In one notable case, your Honour obtained the acquittal of an Egyptian sailor who was accused of smuggling drugs consisting of a banned aphrodisiac. You achieved this success by pointing out to the jury that the small containers in which the drug had been found bore the inscription, "for elderly gentlemen and those suffering from importance". Your Honour is not retiring from this great Court because you are elderly, but there is no doubt that you suffer greatly from importance. As far as the Victorian Bar is concerned, your Honour will always suffer from importance. When your Honour retires you will, we trust, retain your membership of our Bar, and we hope that our long and close association with your Honour will continue to flourish. May it please the Court.

BRENNAN CJ: Thank you, Mr Young. Mr Provis.

MR G. PROVIS, President of the Law Institute of Victoria: May it please the Court. The departure of a Judge from this Court is a highly significant occasion.

Your Honour's leaving is all the more so because of your immensely high standing in the profession and the highly distinguished manner in which you have carried out your office.

Your have also offered leadership at a time when many bemoan the lack of leaders in our society. It was fascinating to read your remarks in February to the 1996 Melbourne University Law School prize ceremony, where you talked of visiting law schools and asking students what they wanted to do. A few years ago it seemed that very few wanted to save the weak from the mighty, rescue the oppressed from their oppressors, right the wrongs of a society, start a community legal service, practice criminal law or even human rights law. They wanted to enter the glass and chrome palaces of mega firms. But, as you observed, times have changed and you have more faith in the youth of today, a faith that I am sure will be more than fully repaid.

The practice of the law is a profession that carries with it responsibilities which are not discharged merely by the pursuit of gain, to paraphrase your Honour's observations at the time. As one who signed the roll of the Victorian Bar 40 years ago and who has served the profession nobly, you have demonstrated the truth of your own words. In your analysis of the forces of money, as against the value of education, you fittingly pointed to the value of ideas. It is these values which you have profoundly brought to your role of the High Court.

In the perpetual and vexing question before this Court of States' rights, you have been portrayed as one who stemmed the grab for power by Federalists. "Principalities come to grief," Machiavelli wrote, "when the transition is being made from limited power to absolutism." The Law Institute is grateful to you for having played your role in ensuring that absolutism did not evolve.

On another great issue of our time, land rights, it has been recognised that long before many others, you recognised the enormous ramifications of the Mabo decision. As a voice in the minority on that occasion, you deemed the issue to be one for Parliament, not the Court.

Earlier in your career you lectured first year law students and RMIT. Your demeanour was described as firm, stern and revelling in the Socratic method. You expected your students to be well prepared. It is said that your lectures commenced promptly at 8.45 in Oddfellows Hall and ended just as promptly at 8.50 if your expectations had not been met.

It is pleasing to note that your successor on the Court will be another distinguished Victorian, his Honour Justice Hayne. Now the Law Institute awaits with great interest, as I am sure does the profession as a whole, your next move, certain in the knowledge that it will be one in which your great knowledge will be used to the ultimate advantage of the law. So, once again, it is my pleasure to offer your Honour the congratulations of the Law Institute of Victoria and Victorian solicitors generally on 15 outstanding years on this Court and to issue a continued rewarding and happy career. May it please the Court.

BRENNAN CJ: Thank you, Mr Provis.

DAWSON J: Mr Solicitor, Mr Solicitor, Mr Young, Mr Provis. In recent years it has not been the custom in this Court to farewell departing Judges, at all events puisne judges. But the Chief Justice who, at my request, is presiding over this my last sitting, said that if the profession wanted to say something he was not going to stop them and would overrule all objections. I am grateful to him for that, as I am for so many other things. I have been touched by what has been said and by the presence of so many members of the profession at what was meant to be the informal exchange of a few polite remarks at the beginning of the day's business. To both sides of the profession in this my home State I express my gratitude. They have given to this day a significance which it otherwise would not have had.

It is also a most fortunate coincidence that my old friend and colleague, Sir Guy Green, is in Melbourne this morning and is able to sit with us on the Bench. That further marks the occasion in a very pleasing way that I had not expected.

At midnight tonight I complete 15 years as a Justice of the High Court and, almost to the day, 40 years as a member of the Victorian Bar. It is now 26 years since I took silk. The judgments which I have delivered in this Court span, I am told, almost 40 volumes of the Commonwealth Law Reports. I can hear you saying in your minds, "He's right. It's time to go."

Sir Harry Gibbs once described life to me on this Court as strenuous. That is accurate enough, but I can think of other adjectives which might complete the description more fully. If life be strenuous upon this side of the Bar table, it is - and I know this from experience - equally strenuous on the other side. I think that this is an occasion to recognise the contribution which the profession makes to the working of this Court and to pay tribute to the quality of that contribution. It has been said more than once that this Court could not function without a profession which is fearless and skilled in the representation of its clients but which, at the same time, maintains its duty to assist the Court in the performance of its proper role. That role is a difficult one and the responsibility of each Justice is heavy. It therefore gives me great satisfaction to be able to say that during my term of office as a Justice of the Court the profession has discharged its responsibility with distinction. I have no reason to think that it will not continue to do so.

For my part, I can only hope that I have in small measure fulfilled the expectations which, given the attainments of the remarkable men who preceded me and my colleagues, are high indeed. Whether I have or have not succeeded I can at least say that the past 15 years have been an exhilarating experience which I shall never regret. I value the good wishes of the profession on my departure and I return them with the confident expectation that I shall continue to be proud to be a member of that profession.

BRENNAN CJ: The Court thanks the members of the profession for their attendance here this morning. The Court will adjourn now in order to reconstitute before proceeding with the day's work.

AT 9.46 AM THE COURT ADJOURNED