Ceremonial - French CJ - Welcome Melbourne [2008] HCATrans 394 (2 December 2008)

Last Updated: 8 December 2008

[2008] HCATrans 394

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 CHIEF JUSTICE ROBERT SHENTON FRENCH

AT

MELBOURNE

ON

TUESDAY, 2 DECEMBER 2008, AT 9.29 AM

FRENCH CJ

Speakers:

Mr J. Digby, QC, Chairman, Victorian Bar Council

Mr A. Burke, President, Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

FRENCH CJ: Mr Digby.

MR J. DIGBY, QC: May it please the Court.

I appear on behalf of the Victorian Bar to welcome your Honour to Melbourne on this the occasion of your Honour’s first sitting as Chief Justice of the High Court here.

This sitting is within a week of the ceremonial sitting 22 years ago on 9 December 1986 at which your Honour was sworn in and welcomed as a Judge of the Federal Court.

Stephen Gageler, the learned Commonwealth Solicitor-General, opened his address at your Honour’s Sydney welcome as Chief Justice two months ago, saying:

It is an irony born of a tradition founded on respect that your Honour must, this morning, endure being welcomed to a place where your Honour is certainly no stranger, on behalf of persons to whom, and by whom, your Honour is well known.

In your Honour’s 22 years on the Federal Court, your Honour sat in Melbourne from time to time - both on the Full Court and at first instance. Melbourne counsel have appeared before your Honour in Perth as well as here.

The generosity and hospitality of your Honour and your Honour’s wife, Judge French, to the Melbourne Full Court judges when they came to Perth is legendary - hospitality extended at your home at Mossman Park and your beach house at Denmark.

Given that your Sydney and Adelaide welcomes came between Canberra and today, I am not sure that I can claim a reverse hat trick (that is, in relation to welcomes rather than departures) but Dr Gavan Griffith, QC, of this Bar, as Commonwealth Solicitor-General, spoke at your Honour’s welcome to the Federal Court. Ross Ray, QC, of this Bar, as President of the Law Council of Australia, spoke at your Honour’s welcome in Canberra, and now I have the honour of welcoming your Honour to Melbourne today.

These welcomes at each High Court Registry are, as Mr Gageler remarked, “a tradition born of respect” - respect, of course, for the office - but also very much an expression of respect for the person.

In addition, they serve as an introduction of the newly appointed Justice to the profession of each State, hence the traditional biographical recitation, albeit in a nutshell.

Your Honour was admitted to practice in December 1972, and immediately played a central role in establishing the Aboriginal Legal Aid Service in Western Australia from 1973 to 1975.

With Rod Warren and Graeme McDonald, you established the Perth law firm, Warren, McDonald & French. You intended to come to the Independent Bar and warned your partners that they could only have two or three years of your talent and industry. With characteristic dedication, you stayed eight and helped build the firm which is now part of Deacons.

After only three years at the Western Australian Independent Bar, you were appointed to the Federal Court and, as I have already mentioned, served with distinction on that Bench for 22 years.

You were the inaugural President of the Native Title Tribunal 1994-1998 and, as the Commonwealth Attorney has said, “guided the Tribunal through a period of charged public and political debate”.

Your extraordinary talent at helping to build institutions was not limited to the law. You chaired the Council of the Western Australian College of Advanced Education in the critical years leading up to the gaining of university status. You then served as foundation Chancellor of what then became Edith Cowan University.

In everything, you have demonstrated the energy and staying power of the marathon runner that you are.

There is, however, one known and notable exception. On 17 July 2008, you were appointed President of the Australian Competition Tribunal, effective 30 July 2008. On 30 July 2008, your appointment as Chief Justice was announced. Your resignation from the Presidency was effective upon you taking that office and surely, you were the shortest Presidency on record. Nor have you been replaced. We note Justice Finkelstein is still the Acting President.

You were a part-time member of the Australian Law Reform Commission, and served as President of the Australian Association of Constitutional Law from 2001 to 2005.

Last year, you were named as one of the 36 foundation Fellows of the Australian Academy of Law, the newest and very exclusive Australian learned society, and I can personally vouch that last night your Honour gave a fine speech at the first meeting of the Academy entitled “Swapping Ideas: The Academy, the Judiciary and the Profession”.

I am pleased to note that your son, Robert, now an employee solicitor at Freehills in Melbourne, is here this morning.

I also note that at the Adelaide welcome to your Honour, which occurred on Melbourne Cup Day, my learned friend, Malcolm Blue, QC, speaking on behalf of the South Australian Bar, ventured a tip on the Cup which was to be run that afternoon. I hope you did not heavily invest in that tip on “Boundless” by “Nothing Else” out of “Van Nisterooy” because it came a disappointing fifteenth. I shall refrain from offering any “investment” advice to your Honour.

I will, however, strongly advise your Honour, with respect, over the years to come, to take up the Victorian Bar’s perpetual invitation to join us at our excellent “Essoign Club” whenever your Honour’s Court is in town with the Chief Justice presiding.

On behalf of the Victorian Bar, I wish your Honour long, happy and satisfying service as Chief Justice of the High Court of Australia.

If it may please the Court.

FRENCH CJ: Thank you, Mr Digby. Yes, Mr Burke.

MR A. BURKE: May it please the Court.

I appear on behalf of the Law Institute of Victoria, and the 12,500 or so solicitors of this State, to welcome you to Victoria in your capacity as Chief Justice of the High Court of Australia.

We hope to welcome your Honour frequently to our State as a guest, and, in that hope, I would like to give you some free, perhaps even gratuitous, advice about the great State of Victoria, and in particular Melbourne.

Firstly, when in Melbourne, always wear black. It is reputedly our uniform. If your Honour wants to travel around incognito it would be wise to dress accordingly.

Second, watch out for trams. They will not watch out for you. They always have right of way, and do not ever think about passing one on the right.

Third, hook turns. Do not attempt them. If you want to go west we suggest that instead you head east and take a generally anti-clockwise course of ever increasing circuits until you arrive. That way you will never need to turn right or attempt a hook turn. They are an acquired skill, one most people struggle with unless they are born locally. It is a bit like driving in Canberra where, given the strange road system, you generally head north when you plan on travelling south.

Fourth, your teams. There is, of course, only one league in Victoria and that is the AFL, and unfortunately your Honour has picked the wrong teams. Do not advertise your support for either the Dockers or the Eagles when visiting Victoria, and you might be wise to consider adopting another local team. Can I commend to you the mighty Hawks?

Fifth, feel free to talk about the weather. Do it often. It is our consuming passion, alongside sport, at which we excel as spectators.

Sixth, mind your colloquialisms. Terms such as “Carlton identity” and “industrial mediator” have a particular local resonance that you might do well to note. Chris Judd may be a Carlton player but he might sue if you refer to him as a Carlton identity. My learned colleagues at the Bar might do likewise if you refer to any of their number as an industrial mediator.

Finally, coffee. We take it very seriously here. For many, baristas rate ahead of barristers in our pecking order. You will know when you have made it as a local when you walk into a café near court and they instantly produce, without even checking your preference, your coffee of choice.

I offer this advice on our local mores, as it is pretty well documented that your Honour is in no need of assistance with your legal career.

As has been widely reported, your Honour comes to the High Court after a full and distinguished career which began in Western Australia. My colleagues at the Law Society of Western Australia speak highly of your Honour and have the privilege of knowing you well.

You are an honorary member of the Law Society of Western Australia. Its current president, Dudley Stow, with whom I had dinner in Canberra on Friday night, describes you as, and I quote, a “good bloke”. In this country, in our idiom, that speaks volumes.

He went on to say that you are diligent and a hard worker and that you have had a wide and varied career. He also noted your Honour’s broad interests, and social conscience, exemplified by your central role in establishing the Aboriginal Legal Service in Western Australia from 1973 to 1975, as my learned friend noted. This was early evidence of your social conscience, as your Honour had only been admitted to practice in December 1972.

As we have also heard, your Honour went on in 1975 to establish the partnership of Warren McDonald and French before you went to the Bar, so you have that essential balance of time served as a solicitor before going to the Bar.

We have also heard of your Honour’s long and distinguished career, your service to the Federal Court of Australia, and of course, your appointment to the High Court has been widely praised.

Your Honour, we look forward to seeing more of you in Melbourne. On behalf of the Law Institute and the solicitors of this State, I welcome you and I assure you of our continuing service whenever you and your Court visit our State.

May it please the Court.

FRENCH CJ: Thank you, Mr Burke.

Mr Digby, Mr Burke, ladies and gentlemen, it is no small thing to be welcomed so warmly in my new office by members of the legal profession in Victoria. It is a profession which has, in its long history, produced many great Australian lawyers. Some have been Justices and Chief Justices of the High Court, others have been Justices and Chief Justices of the Supreme Court of Victoria, some have been members of the practising profession and others of the legal academy.

It is, on the other hand, a familiar experience to be welcomed by members of the legal profession in this State. I have many friends in the profession and the judiciary here. As a Federal Court Judge I have enjoyed the company of my colleagues on the Bench, both federal and State, over many years, and also the high quality of the advocacy that has been offered by members of the Victorian Bar.

Beyond all that, there is a strong family connection. As has been mentioned, my eldest son lives here and works as a solicitor in the city and my sister, who has lived here for many years, now works as a special counsel with the Victorian Government Solicitor.

The legal profession in Victoria is, of course, part of a national legal profession. In my home State of Western Australia, we have been accustomed over many years, going back to the 1970s, to Victorian counsel appearing with and against the local profession. In the early 1980s I had the pleasure of appearing as junior counsel with Mr Jim Merralls, QC, who I am pleased to see is at the Bar table, in a case which I think had something to do with joint ventures, of which Mr Merralls knew an awful lot.

He educated me on a number of matters. One of them was the two-thirds rule. It then applied in what I still refer to as the de facto divided profession in Melbourne, but not in Perth, where we practised as a fused profession. Mr Merralls explained to me that he expected his juniors, wherever they came from, to depart from it only with his agreement. He said, looking at me rather dubiously, “We don’t want any cut-rate juniors”. Of course, given his modest fees, the two-thirds rule resulted in a fairly light imposition on the client. He also explained to me the standard by which he measured High Court Justices. He called it his “plimsoll line” and its measure was Justice Taylor. Few since, evidently, have fallen over it.

It is a measure of the national character of the profession that the last major piece of litigation which I heard in Perth, which went over some 50 days, had at the Bar table counsel from Sydney for the applicant, and from Melbourne and Perth for the respective respondents. It was a delight to have an array of leading counsel and juniors from those three States before me. Melbourne, I have to say, came out of it very well, for reasons quite unconnected with geography – so well, indeed, that there was no appeal from the judgment in their favour.

Mr Digby, Mr Burke, ladies and gentlemen, I thank you once again for the warmth of your welcome. As you know, we are sitting in Melbourne rather unusually because of repairs to the Court in Canberra. Special leave hearings apart, there may not be many occasions in the future when we would be sitting here again to hear appeals, although I cannot exclude that possibility. Nevertheless, the vibrant intellectual life of the profession and the legal academy in this city is such that I expect to be back with reasonable frequency to share in its pleasures. Thank you.

We will now adjourn.

AT 9.45 AM THE MATTER WAS CONCLUDED