Ceremonial - Special Sitting at Perth - Welcome to The Honourable J.D. Heydon [2003] HCATrans 411 (20 October 2003)

--

Ceremonial - Special Sitting at Perth - Welcome to The Honourable J.D. Heydon [2003] HCATrans 411 (20 October 2003)

Last Updated: 28 October 2003

[2003] HCATrans 411

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 JOHN DYSON HEYDON

AT

PERTH

ON

MONDAY, 20 OCTOBER 2003, AT 10.00 AM

HEYDON J

Speakers:

Mrs E. Heenan, President of the Law Society of Western Australia

The Honourable R.I. Viner, AO, QC, President of the Western Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

HEYDON J: Yes, Mr Viner.

MR VINER: If it please the Court.

I was privileged to be sitting in Court on 11 February this year when your Honour Justice Heydon took the oath of allegiance and office as a Justice of the High Court of Australia. Your Honour was welcomed to the Bench by Attorney-General Williams, a member of the Western Australian Bar, the President of the Law Council of Australia, the President of the Australian Bar Association and the President of the New South Wales Bar Association before a “full house” of members of the judiciary, representatives of the Bars and Law Societies of Australia at the Bar table and of the public in Court No 1 in Canberra.

It is, therefore, a privilege to now welcome your Honour on behalf of the members of the Western Australian Bar Association at this first sitting of the Court in Perth since your Honour’s appointment. We offer you a hearty personal and professional welcome and look forward to seeing your Honour here, both judicially and socially, on many occasions.

It was apparent from your Honour’s response to the words of welcome to you in Canberra that you had had a long friendship and association with leading professional figures from Western Australia. I refer to your reminiscences of life at Oxford Law School with Attorney-General, as he was then, the Honourable D.R. Williams, AM, QC, as fellow Rhodes Scholars, under the “fierce reign of terror” of Mr P.B. Carter, Fellow of Wadham College; and of the legendary story of Chief Justice Malcolm’s unsuccessful bargaining with Carter to have Christmas abroad, as told by Justice Hasluck in his book, Offcuts from a Legal Literary Life.

So, your Honour’s connection with Western Australia is already there, even if it is via Oxford, before your Honour has arrived here for your first sitting of the Court in Perth.

Your Honour’s reputation has, however, justifiably preceded you by the scholarship which won you prizes at the University of Sydney and Oxford University and as displayed in the books which you have authored and co-authored and your many published works as they were described by the Attorney-General as reading “like an encyclopaedia from Equity to Expert Evidence, from Torts through to Trade Practices and Trusts”. To these may be added your judgments as a member of the New South Wales Court of Appeal to which you were appointed in February 2000.

Your Honour therefore brings to the Bench of this Court both a formidable legal mind and formidable experience in academia, at the Bar and on the Bench. I have no doubt, however, that your Honour does not bring with you an omnipresent “reign of terror” to emulate from the Bench the torment exacted by P.B. Carter on his students at Oxford. I expect your Honour will be to counsel at the Bar table, as you said Carter was to you, Justice Hayne and Chief Justice Doyle together at Oxford, “baleful but not omnipresent”.

Western Australia has always regarded the High Court’s annual sittings in Perth as a most important expression of Australian federalism. I recall the debates in Canberra in the lead up to the opening of the High Court building in 1980, when I was in Government then, whether the Court would become sedentary in Canberra or continue to sit on circuit in all the States. The decision by the Court to continue circuit sittings was a significant one.

Since Federation, there has always been a certain fragility between Western Australia and the eastern States, of which Western Australia’s late entry into the Federation was an expression. However, the legal profession and litigants from this State were quick to embrace the new High Court as the Federal Supreme Court of the new Commonwealth of Australia when it was created in 1903. Indeed, the third reported decision of the Court is on an appeal from Western Australia: Murray & Co v Collector of Customs [1903] HCA 3; (1903) 1 CLR 25 and there appeared some notable local counsel, Pilkington, Northmore, Burt KC and Stone.

Western Australians predominantly looked to the High Court as the final Court of Appeal. There has been a steady stream of leading constitutional and civil cases from Western Australia decided by the Court in the 100 years since and the sitting of the Court in Perth this week, with a full list of cases, is a reminder of the binding effect upon the legal fabric of the nation of the Court’s presence amongst the people of this State.

Your Honour, the centenary of the Court was celebrated in fine fashion in Canberra two weeks ago. A number of members of the judiciary and the profession from Western Australia joined in those celebrations. My colleague at the Bar, John Staude, after the opening reception for the centenary conference at the High Court building, pointed out to me a photograph which hangs there of the first visit of the first Court to Perth in 1903, when their Honours Chief Justice Griffith and Justices Barton and O’Connor were entertained by the Law Society of Western Australia at a picnic at Point Walter on the banks of the Swan River. I think they must have been more leisurely days 100 years ago.

These days we may not be able to take your Honours on a picnic to welcome you to “our place” but we nevertheless thank you for coming. Once again, welcome your Honour Justice Heydon to your first sitting in Perth and we look forward to the Court’s return and your own return in the years to come.

May it please the Court.

HEYDON J: Thank you, Mr Viner. Yes, Mrs Heenan.

MRS HEENAN: If it please the Court.

It is with pleasure that I appear on behalf of the Law Society of Western Australia to welcome your Honour Justice Heydon to Perth following your appointment as the 44^th Justice of the High Court.

It is now over eight months since your swearing in and you have been the recipient of several welcomes in the eastern States, but it is now the turn of the legal profession in Western Australia to extend to you our own good wishes at our first opportunity to do so, even at the cost of some repetition.

Your Honour comes to the Bench with an outstanding reputation as a jurist and as an academic. You graduated from the University of Sydney with a Bachelor of Arts degree with first class honours and the University Medal for History in 1964. Then, in 1964 as a Rhodes Scholar, you attended Oxford University from which, in 1966, you graduated with first class honours in Law, followed in 1967 by the award of the degree of Bachelor of Civil Law and the Vinerian Scholarship.

A period as Tutor and Fellow at Keble College, Oxford, followed from 1967 to 1973, during which time you also lectured in Evidence and Trusts at the Inns of Court School in London.

On your return to Australia in 1973, academia still beckoned and you took up the position of Professor of Laws at Sydney University Law School, of which you became Dean in 1978. Your areas of special interest and expertise were Equity, Evidence, Commercial and Company Law and Restrictive Trade Practices. This was reflected in your publications, which are still widely used texts in these fields.

In 1980, you left academe and joined the New South Wales Bar, where you practised in Phillip Street at Selborne Chambers, continuing to specialise in your aforementioned areas of expertise. Your appointment as Queen’s Counsel followed in 1987 and you subsequently became leader of Selborne Chambers, where your assistance to junior members and instructing solicitors has been noted in other welcomes.

An appointment to the Supreme Court of New South Wales and the Court of Appeal in February 2000 followed, and you bring to this Court your experience as an appellate judge.

The legal profession in Western Australia values highly the continuing visits of the High Court to Western Australia, a fact which is no less appreciated than in this, the centenary year of the High Court.

Sir Owen Dixon, on 2 September 1952, on the occasion of his first sitting in Western Australia as Chief Justice of the High Court, in his speech, which is reported in Jesting Pilate, spoke of the fact that except for the Depression years and the War years of 1939-1945, the Court had made an annual visit to Perth, at this time of the year, with regularity. Those visits have continued since 1952, as there has been enough business for the Court to bring it here, and are greatly valued.

One point made in Sir Owen Dixon’s speech was that it would be the effort of himself and his colleagues to do their part in preserving the traditions of British justice and in passing on to their successors the tradition as they received it, and with such improvements as they were capable as they were giving to the details of law by judicial process and judicial decision.

We are confident that you will follow in that fine tradition, more particularly, when heeding your closing remarks on the occasion of your swearing-in at Canberra earlier this year, when, adverting to the example your late parents had set that those who knew them would be good enough to say that they did the State some service, you hoped, by some process of genetic inheritance, you would be able to provide your judicial colleagues with assistance in the future. The profession has no doubt that that assistance will also extend to it, and we look forward to your work on the Bench and to welcoming you to Perth for many years to come.

If the Court pleases.

HEYDON J: I am very grateful to Mr Viner and Mrs Heenan for their kind remarks. I was fortunate, while at the Bar, to have received briefs requiring attendance in Perth on a number of occasions. One was in the High Court, some in the Federal Court and several in the Supreme Court of Western Australia. Most of the Federal Court cases were against Mr Daryl Williams of Queen’s Counsel, but all of the cases, whether in federal or State jurisdiction, were hard fought and closely fought.

Those experiences not only enabled me to meet many Perth practitioners whom I would not otherwise have met, but also filled me with a high regard for the skill and determination of the Western Australian profession.

A sign and a symbol of its merit is that Mr Williams himself, not surprisingly, moved from being a leading member of the legal profession here to the leadership of the national Bar. It is not perhaps a popular thing to say in judicial circles, nor perhaps is it a very widely held view at present, but let me record my opinion now, just after he has moved to new and heavy responsibilities, and here in the city which made him and which he for so long a time adorned, and in the presence of many people who will know him and his ability very well, that history will come to view him as one of the most successful Commonwealth Attorneys-General since Federation.

It would be invidious to comment at length on the Western Australian judges, State and federal, before whom I have appeared. Many of them remain in the thick of the fight. Let me mention two names only, names which have departed from the day-to-day strife of litigation and which it is therefore not improper to speak about.

Mr Justice Kennedy, before whom I did appear on one occasion and rightly without success, possesses a great and deserved reputation in the eastern States for forensic ability. His judgments on difficult points are always perused with the greatest of eagerness by practitioners to whose concerns they are relevant.

The other name is one which was recalled to mind only very recently by the television program on the Voyager disaster. Although I do not think his name was actually mentioned on the program, informed people at once remembered that it was Mr Francis Burt of Queen’s Counsel who acted as counsel assisting the second Royal Commission and thereby remedied what many have thought to have been a grave injustice.

It was he who helped develop the independent Western Australian Bar to its present healthy condition and he set a precedent thereby for South Australia, the Northern Territory and Tasmania. In all those jurisdictions, professional structures have adapted themselves to meet the needs of their changing local environments. It was he who first saw how this might be done and it is he who became an outstanding judge amongst the Australian courts of his time.

In two ways, his judicial approach looks out of date or at least unfashionable now. First, he was a genuine all-rounder, familiar with every field of law that came before the court. Secondly, he managed to avoid, in fact, positively resisted, the seemingly relentless tendency of modern litigation and the modern judiciary to become bloated, to become obsessed by excessively long documents, testimonial examinations, addresses, judgments and citation of authority. He knew that to delay justice is to deny it and that it can be delayed as much by well-meaning conscientiousness as by malice. His magnificent career should be much more widely known than perhaps it is.

I look forward to hearing special leave applications from Perth and in Perth in the future and I look forward to regular annual visits here for the hearing of those applications and of appeals. The decision of the Australian colonies to federate was a decision that this continent should be governed as one nation. A nation of continental proportions can be run only as a federation or as a despotism. Regular visits by this Court are a badge that this nation will be run in future as it has been in the past, as a federation.

I thank you all for your attendance. The Court will now adjourn.

AT 10.15 AM THE COURT ADJOURNED