Ceremonial Sitting - In memory of the Right Honourable Sir Harry Gibbs [2005] HCATrans 475 (3 August 2005)

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Ceremonial Sitting - In memory of the Right Honourable Sir Harry Gibbs [2005] HCATrans 475 (3 August 2005)

Last Updated: 8 August 2005

[2005] HCATrans 475

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

CEREMONIAL SITTING

IN MEMORY OF

THE RIGHT HONOURABLE SIR HARRY TALBOT GIBBS,
GCMG, AC, KBE

at

CANBERRA

ON

WEDNESDAY, 3 AUGUST 2005, AT 9.30 AM

Coram:

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Honourable Sir Anthony Mason AC KBE, retired High Court Chief Justice

The Honourable Sir William Deane, AC KBE, retired High Court Justice

The Honourable Terence J. Higgins, Chief Justice of the Australian Capital Territory

At the Bar Table the following persons were present:

Justice Glen Williams (former Associate to Sir Harry Gibbs)
representing the Supreme Court of Queensland

Justice Ken Crispin
Supreme Court of the Australian Capital Territory

Justice Terence Connolly
Supreme Court of the Australian Capital Territory

Master David Harper
Australian Capital Territory

Mr David Bennett QC
Solicitor-General for the Commonwealth

Mr William Bale QC
Solicitor-General of the State of Tasmania

Mr Chris Kourakis QC
Solicitor-General for the State of South Australia
(also representing the President of the Bar Association of South Australia)

Mr Steve Marton
Crown Counsel for the Office of Solicitor-General
(representing the Solicitor-General of the State of Queensland)

Mr John North
President, Law Council of Australia

Mr David Jackson QC
(representing the President of the Bar Association of New South Wales)

Mr Ross Ray QC
Chairman, Victorian Bar

Mr Martin Daubney SC
Treasurer, Bar Association of Queensland
(representing the President of the Bar Association of Queensland)

Mr Robert Crowe SC
President, ACT Bar Association
(also representing the President of the Australian Bar Association and the President of the Bar Association of Western Australia)

Mrs June McPhie
President-Elect, Law Society of New South Wales
(representing the President of the Law Society of New South Wales)

Mr Greg Walker
(representing the President of the Law Society of the Australian Capital Territory)

Ms Margaret Gibbs

Ms Barbara Gibbs

Mr Rod Cameron

Mr Harry Cameron

Ms Carol Hughes

Ms Kirsty Reye

Ms Mary Collings

Mr Mac Collings

Mr John McMillan

Ms Suzanne Hodge

Ms Deborah Hodge

Ms Janina Collings

Mr Ben Leslie

Lady Deane

Mrs Patricia Miles
THE CHIEF JUSTICE OF AUSTRALIA,
THE HONOURABLE ANTHONY MURRAY GLEESON, AC:

The purpose of this occasion is to mark the death, on 25 June 2005, of the Right Honourable Sir Harry Gibbs, the eighth Chief Justice of this Court.

Joining us on the Bench today are Sir Anthony Mason, who succeeded Sir Harry Gibbs as Chief Justice, Sir William Deane, who served as a Justice of the Court with Sir Harry, and Chief Justice Higgins of the Supreme Court of the Australian Capital Territory. Sir Gerard Brennan, who followed Sir Anthony Mason as Chief Justice, is unable to be with us today, owing to recent surgery, but desires to be associated with our tributes. Also present at this morning’s proceedings are members of Sir Harry’s family, Lady Deane, Justice Williams of the Supreme Court of Queensland, who is a former Associate of Sir Harry Gibbs, Justices Crispin and Connolly and Master Harper of the Supreme Court of the Australian Capital Territory, the Solicitor-General for the Commonwealth, the Solicitors-General of Tasmania and South Australia, the representative of the Solicitor-General of Queensland, the President of the Law Council of Australia, the representative of the President of the Australian Bar Association, Mr David Jackson QC, who is also a former Associate of Sir Harry Gibbs, representing the President of the New South Wales Bar Association, the Chairman of the Victorian Bar, the representatives of the Presidents of the Queensland, South Australian, Western Australian and Australian Capital Territory Bars, the President-elect of the Law Society of New South Wales, Mr Brazil, former Secretary of the Commonwealth Attorney-General’s Department, and senior members of the legal profession.

Harry Talbot Gibbs was born in 1917, and spent his childhood in Ipswich in Queensland. He studied Arts and Law at Queensland University where he met his future wife, Muriel, when they were both law students. He graduated in 1939 with first class honours in Law, and became a member of the Queensland Bar, but his professional career was interrupted by the Second World War. He enlisted in the Army, and gave distinguished war service, principally in New Guinea.

Between 1946 and 1961 he practised, with outstanding success, at the Bar in Queensland. He took silk in 1957, and achieved professional eminence of the highest order. In addition, he lectured at Queensland University Law School from 1948 until 1959.

In 1961, at the age of 44, he was appointed to the Supreme Court of Queensland. He was the first graduate of the Queensland University Law School to be so appointed. On the occasion of his swearing-in he was described by the State Solicitor-General as “one of the most outstanding counsel and in particular one of the most eminent lawyers of his generation”. He served on the Queensland Supreme Court, with great distinction, until 1967 when he left to join the federal judiciary. That change may have been related to a proposal for the creation of a new Commonwealth superior court, but the proposal was not carried forward at that time.

Between 1967 and 1970, he served as a judge of the Federal Court of Bankruptcy and as a member of the Supreme Court of the Australian Capital Territory. In August 1970, he was appointed a Justice of this Court, and in 1981 he was appointed Chief Justice. In 1970, members of this Court were appointed for life. By a constitutional amendment in 1977, a compulsory retiring age of 70 was introduced. Because Sir Harry’s appointment as Chief Justice was to a new office, he became subject to that age limit. I do not intend to suggest that, if there had been no constitutional amendment, he would necessarily have stayed on until the age of 88, but he was an active and vigorous man for many years after his enforced retirement in 1987. Whether he possessed the virtue of resignation was never put to the test.

Sir Harry was appointed a Privy Councillor in 1972. He was the last Chief Justice of Australia to hold that office. He sat on the Judicial Committee of the Privy Council on a number of occasions. One of the changes that occurred during his 17 years on the Court was the abolition, by a process of legislative steps culminating with the Australia Acts of 1986, of appeals to the Privy Council from federal and State courts. The final outcome was that this Court became the court of last resort in all Australian civil and criminal cases. The process, however, was drawn-out, with rather untidy jurisprudential consequences. The lengthy period of transition placed Australian judges offered an opportunity to sit on the Privy Council in an awkward position. A proposal that Sir Anthony Mason be appointed a Privy Councillor was declined, and with that Australian participation in the work of the Judicial Committee of the Privy Council came to an end.

Another change that occurred while Sir Harry was on the Court, but before he became Chief Justice, was the construction of the building in which we now sit, and the establishment of the Court’s permanent headquarters in the seat of government in the nation’s capital. The building was completed in 1980. Until then, for the whole of its history since 1903, the Court had been peripatetic, sitting in all States, but mainly in Melbourne and Sydney. The move to Canberra was one of the achievements of Sir Garfield Barwick, but it was not without its problems. It gave rise to some issues upon which the plans of Chief Justice Barwick were not entirely in accordance with the wishes of the other Justices. It fell to Sir Harry, as the senior of those other Justices, to deal, with tact and diplomacy, with those issues. We rightly pay tribute to Sir Garfield Barwick for the initiative and skill he displayed in this building project, but we should acknowledge also the facilitating work of Sir Harry Gibbs. In the week of his death, I wrote him a letter inviting him to participate in an oral history project which is currently being developed. It is a pity that we do not have a detailed record of the events involved in the Court’s move to Canberra from his perspective.

During his term as Chief Justice, between 1981 and 1987, Sir Harry’s diplomatic skills were tested on several occasions, by events affecting the Court. On a social occasion with the current members of the Court, Sir Harry told us that the capacity of the Justices to manage and overcome the difficulties that arose was, in his opinion, largely the consequence of the civility with which all members of the Court conducted their mutual relations. Unfailing civility was one of Sir Harry’s most notable personal and professional characteristics. It is not a quality that attracts attention, or excited applause, and we tend to value it most when it is absent. This Court benefited greatly from Sir Harry’s courtesy, tact and manifest decency in his dealings with lawyers, litigants, the executive government, and his colleagues.

Over a period of 16 years, as Justice and Chief Justice, Sir Harry Gibbs brought to the work of the Court, and the resolution of civil and criminal cases, in all branches of the law, a powerful intellect, a deep understanding of legal principle, wide practical experience, and a capacity for strong and clear expression of his opinions. His contribution to the jurisprudence of the Court is for history to assess. A Chapter in a work on “Queensland Judges on the High Court”, published by the Supreme Court of Queensland Library on the occasion of the Centenary of the Court in 2003, contains a review of many of his notable decisions. During his time on the Court, there was a significant change in the nature of its work because of the introduction of a requirement for special leave to appeal in civil appeals. In consequence, a much smaller proportion of cases could be decided by the application of settled principles to the facts. A greater proportion of work involved cases where novel issues arose for decision. The practices of sitting only three Justices to hear some appeals and giving ex tempore judgments disappeared. Furthermore, dealing with special leave applications became an important part of the work of the Justices; a trend that has continued to develop since his departure. In the Court’s calendar for this year, approximately one sitting day in four is devoted to hearing oral argument in special leave applications and, in addition, we now deal with many applications without hearing oral argument. The number of special leave applications filed during the year ended 30 June 1995 was 334. The corresponding number for the year ended 30 June 2005 was 876.

In the Court’s constitutional work, Sir Harry sat at a time when many great issues arose, and when governments were ready to explore the outer limits of federal power. His inclination, as a federalist, was unsympathetic towards some of that exploration. His opinions on the federal balance were clear and consistent.

Sir Gerard Brennan wrote to me:

“I greatly regret my inability to attend and join in the tribute to the late Chief Justice. I had the benefit of his abilities as lecturer, as colleague and leader at the Bar, as a Judge of the Supreme Court and Justice of the High Court before I joined the Court on the day when he assumed the office of Chief Justice. The quality of his judgments, his efficient industry and his strength of character gave leadership to the Court during some difficult times. It was a privilege to have been a member of that Court.”

Sir Harry is survived by his widow, Lady Gibbs, their four children, and seven grandchildren. To them, we extend our deepest sympathy.

The Court will adjourn.

AT 9.42 AM THE COURT ADJOURNED