Ceremonial - Welcome to Gageler J - Sydney [2012] HCATrans 304 (16 November 2012)

Last Updated: 29 November 2012

[2012] HCATrans 304

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 STEPHEN GAGELER

AT

SYDNEY

ON

FRIDAY, 16 NOVEMBER 2012, AT 9.12 AM

GAGELER J

Speakers:

Mr T.A. Game, SC, representing the New South Wales Bar

Mr S. Westgarth, Past President of the Law Society of New South Wales

TRANSCRIPT OF PROCEEDINGS

MR T.A. GAME, SC: Thank you, your Honour. It is a real privilege for me to be welcoming you to this your first sittings in Sydney for a special leave hearing a month after your appointment to this Court. It may seem a little odd welcoming you to a place in which you have appeared so many times over such a length of years, but I think there is something important to be said about it and it is this. On behalf of the barristers of New South Wales, you have been our colleague; you have appeared with us in cases, against us in cases. You have mentored many barristers, you have given us counsel and you have been our colleague, and that has been a very enriching experience for us.

That has to change and it will change and the awkwardness of that change is, no doubt, something that your Honour has felt upon your taking up this very different position you now hold. But can I say this. There is something central that flows through that and it is this. This is a profession in which it is not just skill that counts, one learns by example. You have been an example to us barristers of New South Wales and you will continue to be an example to us in a very different position in which you now hold. You have led by example and you will continue to do so.

May I say that attending your appointment in Canberra in early October, there was no more signal representation of this than seeing Sir Anthony Mason proudly on the Court, on the Bench for your swearing-in. He was appointed to the Court 40 years ago. Maybe one day, you will see your own associate or tipstaff appointed. But there is that continuity and it actually takes up quite a long time of the life of this Court itself when one thinks about it. You read with a prominent practitioner in this Court. Your own readers now appear in this Court. We are very proud of you as our former colleague and we do wish you the very best in the future years on the Court. We hope that we can assist you from this side of the Bar table and possibly persuade you. I have got no applications before the Court today.

MR S. WESTGARTH: May it please the Court. On behalf of the President of the Law Society of New South Wales and the State’s 25,000 solicitors, I am honoured, too to welcome your Honour back to your home State and to extend my warm wishes on your elevation to this Court. During my year as President of the Law Society last year, I always enjoyed these occasions to deliver speeches at swearing-in ceremonies and to welcome new judicial members to the Bench. I hope this tradition continues into the future. With this Court’s tendency to reduce oral advocacy and, indeed, to deal with some applications on the papers, I trust welcoming speeches of this kind will not be reduced in the future to being dealt with on the papers.

Your Honour, for such a modest and unassuming member of our profession, it must have been a novel and perhaps daunting experience to find yourself on the receiving end of the well-earned public accolades that followed your announcement of your Honour’s appointment and ceremonial swearing-in to this Court. Indeed, the transcript of those proceedings records your Honour as saying that you found yourself “dressed in unfamiliar robes, seated in an unfamiliar position in a setting that has otherwise been long familiar to you if never entirely comfortable”. One trusts that your Honour’s future experiences will be increasingly familiar and comfortable.

In 2003, your Honour appeared for the appellant in the High Court matter of Purvis v New South Wales. The appeal was subsequently dismissed, but the proceedings provided the inspiration for Robert Hannaford’s ‘oil on canvas’, a painting commissioned to commemorate the centenary of the High Court that year. Clearly, your Honour’s immortalisation in this painting was a precursor to cementing your place in the history of this Court albeit from the other side of the Bench at that time. At the time of your Honour’s October appointment, former High Court Justice Michael Kirby AC CMG addressed law graduates at Deakin University, during which he said this:

Ascent to high office along a path that began at Muswellbrook High School in New South Wales is an inspiration and an encouragement to all Australians.

It was during those Muswellbrook High School years that your Honour took it upon yourself to administer your own home tutoring with the assistance of the Readers Digest magazine. Your mother is reported as saying that you “loved to take the Readers Digest and find a new word, use it all the time for a week or two until you managed to fit it into various and different contexts.’ No doubt this discipline helped hone your wordsmith skills for which you are now well renowned, along with your incisiveness, succinctness and clarity of thought.

One of your Honour’s most notable characteristics is to maintain a life outside the law. Much has been already said of your Honour’s skill in Taekwondo. In addition, I am informed by a reliable local source that your Honour has recently taken up yoga. Now, that activity is designed to enhance one’s ability to maintain flexibility of positions and also to achieve inner peace of mind. Both objectives are relevant to a person holding high judicial office. Your Honour has been a great mentor, teacher and role model for our profession. We in New South Wales are extremely proud to call you one of our own. As the Court pleases.

HIS HONOUR: Mr Game, Mr Westgarth, thank you for your remarks.

A legal prophet has no right to expect honour in his home town. The presence today, in large numbers, of members of the two branches of the New South Wales legal profession you represent does me and the national institution of which I now form part a great honour.

I became a resident of Sydney 22 years ago, in the same year that I joined the New South Wales Bar. I remained in private practice at the New South Wales Bar for a continuous 18-year period. Absent a constitutional amendment to repeal or increase the mandatory retirement age for federal judges, or a breakthrough in medical science to reverse the effects of ageing, neither this present stage of my legal career nor any subsequent stage of my legal career will be that long. None could possibly be as intense in the steepness of the learning or in the strength of formation of personal and professional bonds.

My appointment four years ago to the statutory office of Commonwealth Solicitor-General took me away from the mainstream of the New South Wales Bar and left me with very limited contact with New South Wales solicitors. To my great regret at the time, it also took me out of the special leave list.

Special leave days are happy days: the courtroom equivalent, some might say, of “Australia’s Got Talent”; rich in all of the emotions that come with short sharp forensic contests followed by swift and final outcomes. Of course, none of those emotions is permissible in a High Court Judge and I have eradicated them entirely. But contentment is permissible. So is appreciation.

I could not be more content than to be making my Sydney debut as a High Court Judge in a special leave list. I very much appreciate you taking the time to attend this preliminary formality.

Brevity on special leave days, of course, is not only encouraged but enforced.

If my red light is not now on, it should be.

Adjourn the court.

AT 9.24 AM SHORT ADJOURNMENT