Ceremonial - Special Sitting Farewell to the Honourable Justice Nettle AC - Melbourne [2020] HCATrans 199 (26 November 2020)

Last Updated: 1 December 2020

[2020] HCATrans 199

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

SPECIAL SITTING

FAREWELL TO

THE HONOURABLE JUSTICE GEOFFREY NETTLE, AC

AT

MELBOURNE

ON

THURSDAY, 26 NOVEMBER 2020, AT 9.14 AM

HIS HONOUR: Dr Collins.

MR M. COLLINS, QC, Vice‑President, Australian Bar Association: May it please the Court.

I appear on behalf of the Australian Bar Association and the Victorian Bar to farewell your Honour, on this, your last sitting day as a Judge of the High Court of Australia.

I acknowledge the traditional owners of the land on which we meet, the peoples of the Kulin nation. I pay my respects to their elders past and present.

Your Honour is a famously modest and private man. I suspect that, if you had your way, this last sitting day would pass unacknowledged. In this most unusual of years, you almost got away with it. Fortunately, however, for the profession and the community, the easing of COVID‑19 restrictions has meant that an appearance before your Honour, in person no less, has proved possible – the first such appearance in this courtroom, as I understand it, since mid‑March, more than 8 months ago.

It is a particular pleasure to appear in Melbourne, and on behalf of the Victorian Bar, as your Honour, though born in Western Australia, is quintessentially of this city and of its legal profession.

Your career has been marked by successive achievements, any one of which would more than satisfy most of us – first class honours degrees at Melbourne and Oxford Universities; quick ascension to partnership at Mallesons Stephen Jaques; successful barrister, taking silk after only 10 years call; appointment to the Supreme Court of Victoria at the age of 52, and then on to the Victorian Court of Appeal and this Court.

At your Supreme Court welcome in 2002, your Honour described judicial appointment as “the ultimate mark of success for a barrister”. You said you looked forward to the satisfaction of work that would be of greater social utility, and to the challenge of mastering areas broader than those in which you had practised.

There, too, was a fair degree of modesty. While your Honour practised at the Bar mostly in constitutional law, commercial law and equity, you appeared in all manner of matters. Not long before your appointment to the Supreme Court, you had appeared, with your former pupil, Michelle Gordon of counsel, now Justice Gordon of this Court, for the Commonwealth in extradition proceedings sought by Latvia against the alleged war criminal, Konrad Kalejs.

On the Supreme Court, your Honour rapidly became a very fine judge presiding over criminal trials; an expertise that you continued to refine upon your appointment to the Victorian Court of Appeal in 2004. Your colleague on that court, the Honourable Stephen Charles AO QC, described you as “rapidly developing great learning in the field” and a delight to sit with.

Another of your colleagues, on this bench, who may or may not be physically in Court today, summarised your work ethic as one of “devotion”: bringing the full strength of your intellect and life experience to the judicial task. And with economy: as he put it: “no grandstanding, no self‑promotion; shut up, get on with it, do it”.

Your Honour is universally respected in the profession, admired not only for your learning and prodigious energy, but also for your unfailing courtesy both to counsel and your fellow judges. When you asked questions from the Bench, you did so always in order to clarify a submission or identify a point more precisely requiring determination; never to embarrass counsel by demonstrating your formidable knowledge.

Your Honour’s appointment to this Court capped an already remarkable career. Here, your judgments have revealed the full extent of your mastery of the law – the ability to see error requiring correction; a capacity to discern interconnections between seemingly unrelated fields and principles; and an unerring instinct for what needed – and did not need – to be decided.

One of your former colleagues has quipped that the High Court was lucky to get you. The quip, however, obscures an important truth. The Australian community is fortunate that persons of your Honour’s calibre are prepared to accept and serve the public through judicial appointment. Through the example of that service, the community can have confidence in the quality and independence of the Australian judiciary.

In preparing these brief remarks, I have been unable to discover much of your Honour’s future plans. I know you will be looking forward to spending more time with your wife, Wendy, and your family. I have been told to avoid talking at all costs about the likelihood that your Honour will indulge your predilection for working on old cars. Whatever lies ahead, I am confident that it would not be apt, in your Honour’s case, to talk of retirement. I do know you have been counselled by your former master, that “life begins at 70”.

On behalf of the Australian Bar Association and the Victorian Bar, it is a privilege to be here today to mark your Honour’s last sitting day on this Court. I wish your Honour every satisfaction in your life beyond the Bench.

May it please the Court.

HIS HONOUR: Mr Pandya.

MR S. PANDYA, President, Law Institute of Victoria: May it please the Court.

I appear on behalf of the Law Institute of Victoria and the solicitors of this State to farewell your Honour Justice Geoffrey Nettle as a Justice of the High Court of Australia.

We also acknowledge the traditional owners of the land on which we gather and pay our respects to their elders, past and present, and to any elders with us today.

Your Honour, when you joined the High Court just a few short years ago, you compared your late‑career appointment to the example set by none other than Josh Mann‑Rea. For non‑rugby nuts, Mann‑Rea has been described as “a late bloomer if ever there was one”. His was one of the most remarkable comebacks in Australian rugby history. Having missed several chances to take his game to the highest levels, “Bongo”, as he was known, quietly shuffled off to work in the New South Wales coal mines.

It took years of shovelling coal but suddenly – just like that – his undeniable talent was recognised, and in what is normally the down‑phase of a career, big old “Bongo” was swept into the world of top‑class games, including a stint with the Wallabies.

Now, your Honour, we do not suggest for a moment that the 11 years spent on the Victorian Court of Appeal, plus two earlier years in the Trial Division, is at all comparable to toiling in the coal mines. This is for others to judge. But to labour the rugby analogy, your Honour put in the hard yards and overhauled the try‑line year after year to reach the highest levels of law.

It must be said, your talent was never in question. It was evident in the first class honours you attained while studying Law at the University of Melbourne in 1975, and again the following year while studying a Bachelor of Civil Law at Oxford. It is more than evident in your brilliant and clear jurisprudential work, your fine and classy legal scholarship and your exceptional capacity for hard work. And it was evident in the way you would often engage counsel in deep and respectful oral argument, preferring to untangle the puzzle rather than let it sit.

Such diligence and clarity of thought also came to the fore when you worked alongside Justice Ashley of the Court of Appeal to develop reforms to streamline the operation of the appeals court and reduce the backlog of cases. The reforms enormously improved the operation of the Court of Appeal, and the people of Victoria thank you and your colleagues for implementing them.

You have motivated many lawyers to strive for exactitude and excellence, and to commit – as you did – to the highest standards of integrity. Yet you have done all of this with characteristic modesty and discretion. In all, your gentle and dry wit, your generosity to other lawyers in imparting knowledge, and your deep commitment to further learning have contributed to your reputation as an extraordinary member of the Australian – and, of course, the Victorian – legal community.

Those elements combine to highlight a career that, in our view, ranks among the finest in Australian law.

But we cannot let your considerable sporting prowess go unmentioned. Indeed, your Honour has run 14 times in the Melbourne Marathon since 2004, averaging better than 11 kilometres per hour for the first 21 kilometres of the run. And in 2018, when you recorded a not‑so‑good official marathon time, you still came seventh in the above‑60s category. I think we will just let that sink in.

Your Honour, in honouring your formidable career, we want you to know that you have inspired more than a few lawyers that they too might one day attain a seat on the highest Court in the land.

Whatever the next stage of your life holds for you, your wife Wendy and your much‑loved family, we wish you well. May you get to tinker with your classic cars, sail on calm and breezy seas, and may you never lose your keen and devilish humour and the joyous twinkle that shines from your eyes.

May it please the Court.

HIS HONOUR: Dr Collins and Mr Pandya, thank you both very much for your very kind and extremely flattering remarks.

It is still something shy of six years since I was welcomed here by the Melbourne profession on 13 February 2015 and may I say that those six years have passed very quickly. In some respects, it feels more like months than years, and I really do not feel any less physically or mentally able now than six years ago to do the work I was then appointed to do. That said, however, there is arguably truth in the aphorism that there is no fool like an old fool, and I allow that old fools are sometimes prone to self‑delusion.

Some of you may recall that when I was appointed it was noticed that I was then the oldest man ever to be given the job. For that reason, among others, I count myself especially privileged to have been given the opportunity, but now it seems that fashion has changed. I fear that my perceived shortcomings, of which something was written in, and in the aftermath of, Love and Thoms, may have something to do with it.

Either way, however, it is remarkable that the man appointed to replace me, Justice Simon Steward, is almost two decades my junior, and that the most recent previous appointment to the Court, my brother and very good friend Justice James Edelman, is even now still only in his forties. As the press has observed following the appointment of Justice Gleeson next March, the average age of the Court will be as low as it has been for a very long time.

During the six years that I have had the honour to serve on this Court, I have been much assisted by Melbourne counsel and solicitors in hearings here and in Canberra, and sometimes in other places. One of the more memorable instances of the former was in a case of which my brother Gageler reminded me only yesterday, which concerned the nature of a trustee’s equitable proprietary interest in a trust fund. It was consummately argued by Melbourne counsel with Melbourne solicitors in Canberra.

One of the more memorable instances of the latter, of which again Justice Gageler reminded me only yesterday, was in a matter concerning the precise meaning of “reasonable doubt” in proof of an offence of murder committed in Victoria. The case was consummately argued by Melbourne counsel, with Melbourne solicitors, in, of all of places, on circuit in what one former member of the High Court was wont to describe as the “bush‑grave capital” of the Commonwealth, or Adelaide as it is known to you.

I am grateful to all counsel and solicitors for the help that they have given me during my time here. Without limiting the generality of that appreciation, I am especially grateful to those of you who have so often and so willingly lent your assistance pro bono to the representation of the indigent. You are an ornament to the profession and this Court would be hard pressed to function adequately without you.

I wish to thank Deputy Registrar Musolino and Registry Manager Christopher Weymouth of the Melbourne Registry of the Court, with whom, no doubt, many of you will have dealt, whose industry, hard work and constant good humour have made life here in the Melbourne Registry a pleasure, even during the sometimes seemingly endless and debilitating COVID-19 lockdown that we have all endured. I shall miss them both.

I shall also miss the enriching experience of working with a succession of dedicated associates - fine young men and women of great talent and ability whose intellectual acumen, love of the law, respect for its traditions and resolute belief in its capacity to protect and improve society bodes well for the future of our profession. The iconoclasts should beware.

Most of all, however, I shall miss the company and support of my judicial colleagues whose talents are by any standard daunting, and most particularly the camaraderie of my Melbourne‑based sister, Justice Gordon, with whom I have had the great fortune and pleasure of sharing the Melbourne chambers for these last six years.

As is so often uttered, however, as one door closes another opens, or at least so it is hoped, and so despite my sense of loss at leaving this place it is appropriate now that I should look forward to what is come.

Thank you all for your presence here and virtually this morning. You do me a great honour by it.

The Court will now adjourn to reconstitute.

AT 9.29 AM THE COURT ADJOURNED