Ceremonial - Welcome Gageler J - Melbourne [2013] HCATrans 58 (15 March 2013)

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Ceremonial - Welcome Gageler J - Melbourne [2013] HCATrans 58 (15 March 2013)

Last Updated: 25 March 2013

[2013] HCATrans 058

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

MELBOURNE

ON

FRIDAY, 15 MARCH 2013, AT 9.18 AM

GAGELER J

Speakers:

Ms F. McLeod, SC, Chair of the Victorian Bar Council

Mr R. Tang, President of the Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

HIS HONOUR: Ms McLeod.

MS F. McLEOD: May it please the Court.

I appear on behalf of the Victorian Bar to welcome your Honour to Melbourne on the occasion of your first sitting here as a member of this Court.

From the Bar, I am joined at the Bar Table by the senior members of the Bar, including the Solicitor-General for Victoria, Stephen McLeish SC; by Gavan Griffith QC, former Commonwealth Solicitor-General; and by my predecessor as Chairman, Melanie Sloss SC.

Your Honour’s connections with the Victorian Bar go back to your early days in the law. Ms Sloss, and Joseph Tsalanidis, were your Honour’s contemporaries as High Court Associates.

Your Honour recalled at your Canberra welcome, your first appearance before this Court in 1989 as Dr Griffith’s junior when he was Solicitor-General for the Commonwealth and you were his Assistant.

Your Honour said that Gavan Griffith’s encouragement “propelled” your practice at the Bar; and that his example “led [you] . . . to take up the position of public service that he once occupied”.

I do believe your Honour developed an early fondness for Melbourne, perhaps being inspired by an adventure recounted by your wife, Carla, when, as newlyweds, you ventured south from Sydney in your old Ford Cortina. The car, it might be said, had seen better days and was more in the variety of “clapped out” and true to form died outside the Victoria market leaving you stranded and in need of a new engine and, thus, depleting nearly all of your meagre holiday savings. There was only enough to pay for an awful hotel until the mechanic took pity on you and offered you lodgings above the workshop until the engine had been repaired. I am told his generosity left a lasting impression upon you and a fondness for Melbourne.

Your Honour was born and brought up in the Upper Hunter region of New South Wales on a four-hectare property that also housed your father and grandfather’s sawmill business. You attended school locally at rural primary and high schools.

You paid tribute at your swearing-in and welcome in Canberra to the one teacher who had taught kindergarten to grade 6 in a single classroom at Giant’s Creek and to the “dedicated and inspired” teachers at Muswellbrook High School.

It says a lot about you, and a lot about them, that your headmaster, and a number of your other high school teachers attended your swearing-in.

You matriculated to the Australian National University, from which you graduated in Law with first-class honours, and in Economics.

After admission to practice in the ACT on 14 December 1982, and some six months as a solicitor, you came to this Court as Associate to the Honourable Sir Anthony Mason.

Still today, Gavan Griffith remembers the persuasive force of Justice Mason’s high recommendation of you and that you delivered in full on what was promised of you by the man you have always known as “the Judge”. After some two years in the Commonwealth Attorney-General’s Department, your Honour went to the Harvard Law School for a year.

Your Harvard LL M thesis was the foundation of your article “Foundations of Australian Federalism and the Role of Judicial Review” published in the 1987 Federal Law Review – an article still read and referred to 25 years later.

You returned to the Attorney-General’s Department and served as Principal Legal Officer and Assistant to the Solicitor-General, Dr Griffith.

In 1989, appearing as Dr Griffith’s junior, you presented your first argument to a Full Bench of the seven Justices of this Court.

In 1990, you went to the New South Wales Bar, reading with Bret Walker and then Alan Robertson.

You established an outstanding, largely constitutional and commercial practice, and also contributed to the community of the Bar. You had eight readers, four of whom have taken silk. For many years, you served on the Board of your Chambers – the 11th Floor of Wentworth; and for many years chaired the Bar Constitutional Law Section.

You have taught also in the ABA Advanced Appellate Advocacy Course where your Honour may have employed your renowned skill in taekwondo to instruct those attending in the finer arts of appellate advocacy – “it is all about finding your balance” – “and then delivering the lightning strike”.

The Commonwealth Attorney spoke at your swearing-in of your Honour’s minute handwriting. A Melbourne junior once likened it to depicting “Green Ant Dreaming” – a reference to Werner Herzog’s film on the original Gove Land Rights case. The Attorney herself remarked that the indecipherable quality meant that perhaps you had missed your calling as a medico.

Your Honour came to the Court from 18 years outstanding practice at the independent Bar and four years distinguished service as Solicitor-General for the Commonwealth. As a fitting tribute to those years of service, this year’s Archibald prize includes amongst the finalists a striking portrait of your Honour.

On behalf of the Victorian Bar, I wish your Honour joy in your appointment and long, satisfying and distinguished service as a Justice of the High Court of Australia.

May it please the Court.

HIS HONOUR: Thank you, Ms McLeod. Mr Tang.

MR R. TANG: May it please the Court.

I appear on behalf of the Law Institute of Victoria and the solicitors of this State to welcome your Honour to Melbourne on the occasion of your first sitting here as a member of this Court.

Upon completion of your law degree, your Honour took the ANU Legal Workshop Skills course which replaced Articles in the ACT. You were admitted in the ACT on 14 December 1982.

Your Honour began your legal career as a solicitor with the Canberra law firm of Elringtons. Elringtons traces its history back to 1897. In 1933, a partner in a predecessor firm was instrumental in establishing the ACT Law Society and served as its first President.

Your Honour was with the firm for a relatively short time, moving on, as we have heard, to your two-year appointment as Associate to the Honourable Sir Anthony Mason.

During your time at the Bar, your Honour served some 10 years as a member of the Administrative Review Council, and you were an active contributor, in particular, to the “Scope of Judicial Review” project.

You also served as editor of the Australia Law Reports between 2006 and 2008.

Your Honour has a legendary ability to cut through a massive tangle of conflicting and convoluted facts, documentation and law to produce submissions and arguments of astonishing clarity and lucidity.

One of my partners recalls your Honour’s principle of reducing submissions to the minimum essential to express the relevant principles with clarity. If two pages were enough, you would leave it at that – even if 10 were allowed. The only difficulty was that your instructing solicitor would sometimes be left to explain to the client that volume or quantity should not be confused with quality.

Your Honour was occasionally playful with an instructor.

A Melbourne instructor had a very eminent Melbourne silk who had guided a complex case for years. That silk became unavailable on the eve of the hearing in this Court. His Sydney partners recommended your Honour. The Melbourne instructor flew up to confer with your Honour in Sydney. Casually, your Honour looked on your shelves. You selected the Corporations Act. You opened it. With a somewhat pensive look, you sat back in your chair. “Tell me about Part 5.3A”.

As this speech is to be published in the Law Institute Journal, I cannot mention the exact words that ran through your instructor’s mind, at this point in time. Needless to say, he did not think it a propitious start to working with new senior counsel of whom he had no personal knowledge or experience, and on the eve of a hearing in this Court.

However, as the conference progressed, your Honour’s mastery of Part 5.3A – and the set-up of your instructor – became clear and confidence in your Honour was restored.

Your Honour also had an uncanny ability to sense the Court’s mind. You knew when you had said enough - when to stop and sit down - and you often knew how the case would be decided, perhaps, before the members of the Court themselves were entirely certain.

In the same Part 5.3A case, the client’s representative, who had come out from North America for the hearing, was extremely edgy. Immediately after the hearing – before your Honour or your instructor had even drawn breath – the anxious client was pressing frantically, “How do you think it went? Will we win? Will we?”

Your instructor began with a cautious response, “One can never be sure”.

Quietly, your Honour said to your instructor, “We won, and we won on both points”.

You were entirely correct - but in the interval before the reserved judgment came down the following year, it was your instructor’s turn to fret.

Notwithstanding your successful career, you have a deserved reputation as a decent and modest human being.

Another of my partners recalls an example of your Honour’s modesty during your time as Solicitor-General. He arrived from Sydney for a meeting at 1 pm. You asked whether he was hungry and he was.

Your Honour took him down to the foyer of the Attorney-General’s building and the two of you lined up in a queue to get a ham and cheese “sanger” and a flavoured milk.

When my partner remarked that it seemed unusual for the Solicitor-General of the Commonwealth to have to do something so mundane, you said your staff had more important things to do than fetch you things to eat.

Your Honour has been one of the outstanding advisers and advocates of your generation – a man of principle, integrity and intellectual fire – and your Honour is an outstanding appointment to this Court.

On behalf of the Law Institute of Victoria and the solicitors of this State, I wish your Honour long, satisfying and distinguished service as a Justice of this High Court of Australia.

May it please the Court.

HIS HONOUR: Ms McLeod, Mr Tang, thank you both for your generous remarks. The Court is honoured and I am personally honoured by your presence here today and by the presence of very many members of the legal profession in Victoria whom you represent.

It is always good to be in Melbourne. It is always good to arrive by plane and it is always good to stay in a hotel.

My connection with the Victorian legal profession, as has been mentioned, goes back a long way. At an early stage in my legal career, and before being introduced to the ways of the Sydney Bar, I was privileged to work for two years with Dr Gavan Griffith, who was then Solicitor-General of the Commonwealth, and who I am pleased to see sitting at the Bar table today.

It was then that I became exposed to the likes of Jim Merralls, who is also present today; Stephen Charles; Michael Black; Ron Castan; Frank Callaway and Mr McLeish’s predecessor, Hartog Berkeley. They were, in those days, by no means an homogeneous group, but their legal skills and, in particular, their great advocacy skills, left a lasting impression on me. Hartog Berkeley, I recall, had the ability to make profound points in a disarmingly engaging and apparently light-hearted way. His detailed explanation of the nature and limits of Commonwealth legislative power, by reference to the variable contents of a wheelbarrow being wheeled down Collins Street, left an image that I have never been able entirely to eradicate.

In my earliest years at the Sydney Bar, I had occasion to work closely, for a sustained period, with Brian Shaw, surely one of the greatest Australian lawyers of his, or any other, generation. His depth of analysis and economy of expression I have always aspired to emulate.

Over the years, in private practice and then later in government service, I appeared with and against senior and junior members of the Victorian Bar and was briefed by and against Victorian solicitors in a wide variety of cases in courts and tribunals throughout Australia. Most of the individuals involved remain in practice and, apart from those very senior practitioners who I have felt it appropriate to name already, it would be inappropriate for me to acknowledge others by name. It is sufficient to say that members of the Victorian legal profession have, in my experience, always fitted the stereotype of being more thorough in their preparation and presentation, more elegant in their written and oral expression and more courteous in their professional dealings and court-craft, than we have come to accept as the norm north of the Murray.

I recall telling a particular Victorian silk, with whom I was briefed just once when I was a junior, that I thought that I had worked up a particular point sufficiently for the trial and that I could always do more work as necessary for the appeal. My exact words, as I recall them, were, “I am always better on the appeal anyway”. That is just the attitude he would expect of a Sydney junior, I was told. “Go away and do more work now”.

There is another more serious point that I should make and it is that the honour and independence within the legal profession in Australia manifest nowhere more strongly than here in Melbourne. As a practitioner, I have benefited immensely from the example, from the encouragement and from the private, and sometimes public, support of the profession in Victoria. I am confident that I will continue to benefit necessarily from more restrained interactions with the profession in my capacity as a judge.

Thank you again. Thank you all for your courtesy of being present this morning.

The Court will now take an extremely short adjournment.

AT 9.32 AM THE MATTER WAS CONCLUDED