Auscript australasia pty ltd



Download 69.4 Kb.
Date31.05.2016
Size69.4 Kb.

AUSCRIPT AUSTRALASIA PTY LTD

ABN 72 110 028 825


Level 16 Santos Place, 32 Turbot Street, Brisbane QLD 4000

PO Box 13038 George St Post Shop, Brisbane QLD 4003



T: 1800 AUSCRIPT (1800 287 274) F: 1300 739 037

E: clientservices@auscript.com.au W: www.auscript.com.au




TRANSCRIPT OF PROCEEDINGS


O/N 129591
FEDERAL COURT OF AUSTRALIA
CEREMONIAL SITTING OF THE FULL COURT ON
THE OCCASION OF THE OPENING OF
THE NEW CEREMONIAL COURT
AND
FAREWELL TO
THE HONOURABLE MICHAEL BLACK AC

CHIEF JUSTICE, FEDERAL COURT OF AUSTRALIA

BENCH:

THE HONOURABLE MICHAEL BLACK AC, CHIEF JUSTICE

THE HONOURABLE JUSTICE MOORE

THE HONOURABLE JUSTICE EMMETT

THE HONOURABLE JUSTICE STONE

THE HONOURABLE JUSTICE DOWNES AM

THE HONOURABLE JUSTICE JACOBSON

THE HONOURABLE JUSTICE BENNETT AO

THE HONOURABLE JUSTICE EDMONDS

THE HONOURABLE JUSTICE GRAHAM

THE HONOURABLE JUSTICE RARES

THE HONOURABLE JUSTICE COWDROY OAM

THE HONOURABLE JUSTICE BUCHANAN

THE HONOURABLE JUSTICE FLICK

THE HONOURABLE JUSTICE JAGOT

THE HONOURABLE JUSTICE FOSTER

THE HONOURABLE JUSTICE NICHOLAS

THE HONOURABLE JUSTICE YATES

THE HONOURABLE JUSTICE KATZMANN
SYDNEY
9.33 AM, FRIDAY, 12 MARCH 2010

BLACK CJ: Although it is said, somewhat glibly, that there are precedents for everything in the law, it would be hard to find a precedent for the opening of a court’s new ceremonial courtroom a week before the retirement of its Chief Justice. All I can say is that I am very glad it is not the week afterwards. I have found that no deadline is more absolute than that imposed by section 72 of the Constitution.


Thank you all for honouring us with your presence at this ceremonial sitting, which I propose to divide into two parts. In the first part, I would like to say a little about this Courtroom, and I want to express the Court’s gratitude to the artists, craftspeople, architects, builders, tradesmen and all the others who made it. I will then invite the learned Solicitor-General for the Commonwealth, Mr Bathurst and Ms Macken, to address the Court. I do wish to mention specifically some of those who have honoured us greatly by their presence in Court today, but I shall do that as part of the proceedings for my farewell.
And so some remarks about this, our new principal Courtroom, for the Federal Court in Sydney. The first sitting of the Federal Court of Australia took place here in Sydney on 7 February 1977 in this part of the Law Courts Building, but in what was then known as Court 21A. In fact, we celebrate that occasion every year, and we call 7 February “Foundation Day”; it is the day upon which we present awards to our staff, nationally. Court room 21A has served the Court well for over 30 years, but it did begin to show its age – such happens – and its limitations – such also happens.
When, as a matter of necessity, extensive work was required in this building to make the whole building safe and to enable it better to serve the public, the opportunity was there to build a better principal courtroom for the Federal Court. By “better” I mean a courtroom that would better serve the profession, the public and the judges. And so this Courtroom was designed with several objects in mind. The first was to provide a principal courtroom for the Federal Court in Sydney that would be of adequate size to accommodate substantial litigation, that would function as an appropriate appellate court, and that would also provide an appropriate venue for the ceremonial sittings that this Court, like all courts, has from time to time. To achieve those ends, the courtroom needed to be of substantial size, and it needed to provide first-class facilities.
The second object was to create a courtroom that was capable of conversion into a space for public lectures and seminars on legal topics. The third object was to create a courtroom that would reflect the design philosophy that holds that whilst courts should be places of dignity and should reflect the importance of the law in our society, they should also be places that invite the public to be present and provide proper facilities for the public. They should also provide access to natural light and, if practicable, views of the outside world. This philosophy says, too, that, architecturally, light and access have a powerful symbolic connection with justice. The fourth object was to create, in achieving the first three, a work of artistic excellence. I believe that all those objects have been achieved.
I would now like to say a little about the Courtroom, including the bench and the bar table and in the course of doing so, to pay a tribute to those who made it. Speaking generally, the Courtroom has connections with Sydney through its use of the views of Hyde Park and not so distant Botany Bay, and through the use of timber in such a way as to reflect the strata of the rock upon which Sydney is built. There is also, perhaps, a connection in the ceiling for which the architects conceived a superb shape although, as you can see, there are obvious functional purposes as well. The problem that emerged with the ceiling is not entirely unusual, a beautiful design is not always easy to build; in fact, sometimes impossible to build. Not so here.
The answer involved, as it seems to me, a stroke of genius. If you ask in Sydney who builds beautiful shapes, the answer is likely to be those who build boats. And so it was that MouldCam, a company well known to maritime people, produced the ceiling by casting it in the same way as one might create the hull of a beautiful boat. My congratulations to them for their superb work.
The focal point for any court, certainly for the business end of the court, is the lectern. It is also the focal point for any lecture. In Melbourne, when we use the Court One for a lecture, we just grab the lectern and turn it around. Here, the craftsman has built a lectern that turns around, and as it turns its point of pivot changes such that, whichever way you look at it, it remains at exactly the right distance from the speaker. It is a brilliant achievement, and very elegantly done.
If used for a lecture theatre or a seminar room, this Courtroom can readily be reconfigured so that it is in a U shape to facilitate a more intimate forum-type approach. It has been built to serve the Court and the profession and the public in Sydney in several ways.
The superb bench, bar table and witness box is the creation of Simon Zablotsky, who is here today with his family, and his team, with an earlier design input from Leon Sadubin. I congratulate them. The timber was taken from a single Blackwood tree, milled under the craftsman’s supervision to obtain the best grain of the timber.
The design reflects, and is intended to reflect, the strata of the rock upon which Sydney rests. And there is a maritime theme also, since, if you look at the bar table, you will see that it has the shape of a hull; or an aerofoil, if you like. It is hollow, with ribs, much in the way of a wooden boat. The foundation, however, is recycled Blackwood from the old Court. The finish is superb, and I congratulate the craftsmen.
The Coat of Arms and the crystal door handles: the door handles I might add, have their intellectual origin in my fascination, as a young advocate, with the door handles for Court One in the new High Court building in Canberra, they have reproduced the idea here in crystal.
The Coat of Arms is cast lead crystal and, I believe, is unique in concept. It too is the work of Lisa Cahill, a noted artist, who is here today and whom we congratulate for her outstanding work.
The architects of the project, GSA+Hassell, have been involved since the project began. I am grateful to them all, but particularly for the work of Tim Shannon, who I am delighted to see here. Until recently, he was the Chairman of Hassell and he had a large hand in the design of this Courtroom, as he did in Melbourne and Adelaide. He is a great architect with whom it has been a very great privilege to work. He is in Court today, as I have said, and I am delighted to share this occasion with him.
I thank our project managers, Crown Project, in particular, Gary Fitzhenry, who I have bothered on my visits to Sydney. I usually spend ten minutes of a visit here to bother Mr Fitzhenry. I probably need not have done so, but he has always been polite. It was a close-run thing, but he got us here and thank you very much. It has been a huge cooperative effort of many professions, crafts, trades and workers. We must recognise and thank them all. This Courtroom, I believe, is a tribute to them.
There is one other person I particularly want to mention, and that is Mr Gordon Foster, our Director of Corporate Services, a member of the Board of Law Courts Limited and a wonderful enthusiast for this project. We have worked together – he has done the work and I have done, basically, the urging – on four buildings, and the fifth, Darwin – a matter that I still have to mention to the Attorney – is a work in progress. In addition to his other corporate responsibilities, he has been an invaluable leader with all the Court’s major building projects. He is in Court, as, also, is Bob McNairn and I thank them.
I should conclude by acknowledging the work of my colleagues. This is part of a much larger project that is underway in both parts of the building, and has been for some years. It was necessary to do, and it has been done very well. I thank the Sydney Building Committee of the Federal Court, presided over by my colleague and friend, Justice Moore, presently with Justices Stone and Buchanan as its members. I thank them very much indeed for their sustained work.
I hope I have not omitted – yes, Mr Shannon’s clock. All courtrooms should have a clock designed by the architect, and that has happened here. Thank you Mr Shannon for that clock, as well.
If I have missed anything or anybody, I am sorry. But I thank you all for creating an outstanding Courtroom for the Federal Court in Sydney and an outstanding Courtroom for Sydney. We shall now use it for the first time. Mr Solicitor for the Commonwealth, do you move?
MR S. GAGELER: May it please the Court. I acknowledge the Cadigal People, who are the traditional owners of this land, and I give my respects to their elders past and present.
The retirement of the Honourable Michael Eric John Black, after nearly two decades in office as Chief Justice of the Federal Court of Australia, is no mere event. It is being marked by a festival of national proportions. Your Honour’s triumphal procession started with an opening ceremony in the national capital itself on 4 February. The procession moved to Hobart on the 12th; it then proceeded to Adelaide on the 18th; Perth on the 19th; and Brisbane on the 26th. On each occasion, your Honour received tribute from local representatives of what has become, during your Honour’s tenure as Chief Justice, an increasingly national profession. On each occasion, your Honour learnt more and more details of your Honour’s long and distinguished career.
BLACK CJ: Yes, you can skip those if you wish, Mr Solicitor!
MR GAGELER: The procession now rests for a moment in Sydney before going on to Melbourne for the closing ceremony on 19 March. The Australian Government will, on that occasion, be represented by the Attorney-General. The Attorney-General will, on that occasion, survey your Honour’s considerable contribution to the law and the judiciary and he will then express the gratitude of the Australian people. Today, here in Sydney, I therefore find myself relieved of the usual constraints of representation. I am liberated to single out and to talk about an aspect of your Honour’s professional life and passion, that is, a particular aspect which, for the sake of posterity, should not escape public acknowledgement. In this magnificently refurbished Courtroom, opened just in time for this ceremonial sitting      
BLACK CJ: I had just forgotten something in the script, Mr Solicitor, but it can be remedied. Please, continue.
MR GAGELER: I will continue. I was just building to a crescendo, your Honour.
BLACK CJ: I am sure that with your stature as an advocate Mr Solicitor, you can overcome that.
MR GAGELER: I will rewind just a little.
In this magnificently refurbished Courtroom, open today just in time for this ceremonial sitting, flooded with light and still smelling of lacquer, and following on from your Honour’s detailed remarks on its opening, I speak not of Black the judge, or even Black the lawyer, but of Black the builder. Your Honour is the Medici Prince of Australian Chief Justices. From the Marion Mahony Award-winning Owen Dixon Commonwealth Law Courts building in Melbourne to at least equally beautiful and functional Palais de Justice in each of Adelaide, Perth and Brisbane, your Honour leaves an architectural empire that now spans the continent. Only in today’s Financial Review the leader of the design team for the Owen Dixon Commonwealth Law Courts building is reported as having said this:
I can smell an architect from a hundred paces. CJ Black, I reckon, could have been an architect. I have the sense – 
he said –
that the Chief Justice had perhaps realised that the architecture could be used as an agent of change, that the building itself could in some way assist in the transformation of the law court as an institution in his country.
The overwhelming feature of your Honour’s architectural work – and it is apparent to everyone in Courtroom Number One today – is light, natural light flooding in, it seems, from all directions. Caesar Augustus was known to have found Rome in brick and to have left it in marble. Chief Justice Black, or CJ Black to his architectural friends, will be known to have found the Federal Court in gyprock and to have left it in glass. Of course, these characteristics of your Honour were first recognised here in Sydney. They came to light last year when your Honour gave an interview to Andrew Bell of the New South Wales Bar. The interview was transcribed word for word in an article that was published in the winter edition of the Bar News for 2009. The article was entitled Black Casts Light on Court Refurbishment. And the gist of the interview went like this:
Bell:
What was it that sparked your original interest in a major assault on the architecture of Federal Court buildings?
Black:
I’ve always been interested in architecture. It may be in my genes. There are some ancestors who are architects. I just like creative things.
Bell:
Has there been an underlying design philosophy?
Black:
We articulated a number of important values such as respect for the dignity and importance of the courts and the rule of law in some of the design briefs but, basically, what you’re trying to do is to have a building that is functional, that emphasises the importance of what goes on there without being overbearing.
Bell:
And each of the Federal Court buildings around Australia now has distinctive qualities, but also some unifying characteristics.
Black:
Yes, they do. And I think the unifying characteristic is this notion of light and access and, of course, there is a symbolic affinity between light and justice which I would like to think is reflected architecturally.
There you have it. And your Honour repeated it this morning, “A symbolic affinity between light and justice reflected architecturally.” Transparency, clarity, accountability all reflected architecturally in the Federal Court of Australia. Indeed, it might well be thought that the appalling circumstances described by Charles Dickens in Bleak House could never have come to pass had the Court of Chancery allowed in natural light. One thing that is now certain is that there could be no

Jarndyce v Jarndyce in the Federal Court. The administration of justice in the Court, over which your Honour presides, is now and, through your Honour’s architectural efforts, will continue to be just, cheap, quick and sunlit.
Amongst the many wonderfully symbolic architectural and artistic features that now adorn Federal Court buildings throughout the country is a particularly important sculpture that is to be found in the Commonwealth Law Courts building in Adelaide. It is by Warren Langley and it is called Continuum. And it consists of three installations, each on a different floor, each representing a different theme associated with the rule of law. On one level is what is called the window of opportunity; above that is the law of the land; and above that is the fabric of democracy. One of the installations contains an inscription. The inscription is unattributed. I do not know where the words come from, but I am confident that they at least met with your Honour’s approval. The inscription says this:
The law is the unbroken thread of precedent guiding a path with a responsible origin and a comprehensible destination. It enfolds and protects. Because the rule of law exists we believe that tomorrow will be better than today.
Like the law itself, the architecture, the art and the poetry that your Honour leaves behind is part of a continuum. It engenders not just a sense of stability, but a sense of hope. Returning, though, to things more concrete and closer to home; I should mention the concluding question and answer in your Honour’s interview last year with Andrew Bell.
Bell:
Just can we get on the record when is it expected that number 1 court will be completed?
Black:
It will be completed in time to be used on 18 March 2010.
Your Honour has always been true to your word. The architectural triumph that is Number One Court has in fact been completed ahead of time. It is an entirely fitting and highly symbolic place for your Honour’s ceremony, a farewell to be held today. I must conclude and I conclude in words that your Honour might well have said had they not been said before, “Let there be light.” May it please the Court.
BLACK CJ: Thank you, Mr Solicitor.
Mr Bathurst, do you move?
MR T. BATHURST QC: May it please the Court. In one sense, there is very little to say because it has all been said before and it will probably again be said in Melbourne, but one thing that the Solicitor did not mention was not only your Honour’s ability as an architect, but also your Honour’s ability as a project manager. There is no one I know who has been able to have, I think it is, five buildings completed on time and, from what I am told, more or less on budget. It had to be on budget because if your Honour had not managed to bring the Melbourne Court in on budget you would not have been able to build the other ones. It is an extraordinary achievement and one that this Court and the community should be very proud of.
I do want to, however, extend my warmest thanks on behalf of all of the members of the New South Wales Bar to the service you have given the community and the support you have given the Bar in this state over the 19-odd years that you have been Chief Justice of the Court. Your Honour’s appointment is recorded in Volume 26 of the Federal Court Reports. That edition was issued seven years after those reports commenced. Since then there has been another 154 volumes of that publication. It shows the enormous expansion of work that this Court has undertaken under your stewardship and, most importantly, the recognition that it is a truly national Court.
When your Honour was appointed, the Federal Court had, of course, been operating for some 15-odd years. Notwithstanding that, it could still have been fairly described as sitting in four or five separate state divisions. It was rare at that time for practitioners to go interstate. We rarely, of course, when your Honour was at the Bar, had the privilege of seeing you appearing here except in the High Court. What your Honour did was not only build structures which are on this Court but, even more importantly, moulded those divisions into one single national framework, and it was no mean task.
The judges of the Court had been used to different systems and different procedural rules and, without probably drawing the eye of all of you on me, judges are not necessarily the most confirming of human-beings. To mould the Court into one unit needed skill, tact, intelligence and almost, at some times, dare I say cunning. Your Honour did not need much cunning, your Honour’s innate courtesy, intelligence and ability caused a single unified structure symbolised by the buildings that your Honour has caused to be constructed over many years.
The benefits for the Court from that have been immense, as has the benefit to the community. It also contributed, in very large part, to the establishment of what is now a truly national profession. It is commonplace for members of the Bar to practise interstate, firms of solicitors have multi-state and, indeed, international branches, judges come from state to state and it is extended to state courts where it is now common to see barristers appearing in different jurisdictions. That would not have happened without your Honour’s work in moulding and unifying this Court.
Your Honour was also at the forefront of streamlining processes. Your Honour implemented, in 1999, the docket system which has proved an outstanding success in both case management and case determination. Your Honour set up a number of specialist panels to enable cases to be heard by judges who are both skilled and enthusiastic in particular areas. That, I know, made the onerous judicial burden, from time to time, less onerous and more enjoyable for the judges concerned.
Your Honour made outstanding reforms in the area of native title. That was one of the most challenging areas that this Court has had to face over the last 15 years or so, and the procedural reforms you put in place to enable an entirely new form of jurisprudence to be moulded into the legal system and to be heard fairly and efficiently was outstanding. Your Honour implemented technological advances. We have, now, video conference systems, and, I am told, though I do not know how to use them, electronic lodgement of documents and virtual Courts. Generations beyond mine will probably be more grateful than I am for those things, but they are an outstanding achievement.
There is nothing much more I can say about your Honour’s interest in architecture. The Solicitor has said all that can be said and more, and my only addition was the project manager aspect, perhaps a more practical aspect than the Solicitor talked of. But the Courts are outstanding from a practitioner’s point of view. It is much easier to practise in courts which have the facilities that not only this Court now has, but the Courts interstate. As someone who goes interstate from time to time you have no idea how easy it is to practise in the Federal Court with conference rooms, robing rooms that are easy to use and comfortable as compared to the old days where, in Melbourne, you used to robe in a dark corner in William Street and hope no one would notice you. I am not saying the Victorian Bar wasn’t friendly, but …
Your Honour, despite all those activities, did participate – perhaps before I go to that. One reform that your Honour, I think, introduced in Melbourne, although Justice Finkelstein, I understand, sometimes takes credit for it, is the Rocket Docket. If it was your Honour’s idea, it is probably the one area where you have not been able to cajole judges, because the rocket, I do not think, has ever reached the launching pad in this State. Your Honour, despite all those activities, found time to fully participate in the judicial activities of the Court. Your Honour’s judgments were always of the highest intellectual quality and always demonstrated compassion within the confines of correct legal principle.
Your Honour said you were content to be labelled a liberally-minded black-letter lawyer. This is consistent with your well-deserved reputation for concern with human rights, but not at the expense of legal principle.
Your Honour was once asked about retirement and said that:
The pilot boat will come alongside and I will join it and go ashore. The ship will sail and I will work out what I will do then.
Whatever your Honour’s ultimate decision will be, the Bar hopes that you enjoy it. We know that you have an interest in architecture, light rail, matters maritime and, indeed, I am told in military law. With that I think can be added all things Italian, most things French and the Mornington Peninsula. Your Honour will have time to focus on those activities in your retirement, but I am sure it will be not enough for a man of your intelligence, energy and ability. Whatever your ultimate decision be, the Bar thanks you and wishes you well. May it please the Court.
BLACK CJ: Thank you very much, Mr Bathurst. Ms Macken, do you move?
MS M. MACKEN: May it please the Court. Your Honour, this year commemorates the bicentenary of Lachlan Macquarie’s governorship of the colony of New South Wales and his enduring legacy to the social, economic and architectural development of the land on which we stand today. As I look around this magnificent Courtroom, a celebration of our landscape and maritime history, I’m reminded of a time when Governor Macquarie, with the assistance of architect Francis Greenway, began an ambitious building and public works program that has stood the test of time. This high technology Court encapsulates significant aspects of the Sydney basin, which is reflected in the richness of the Tasmanian Blackwood and the intricacy of the sandstone facade on the judicial bench. The shaping of the bench is reminiscent of rowing eights, Lisa Cahill’s monumental glass Coat of Arms and your Honour’s piéce de rèsistance, the open book, height adjustable and swivel-top lectern.
As the Solicitor-General has noted, through the use of natural lighting and glass, this innovative design has succeeded in facilitating a more accessible, transparent and less intimidating environment. In terms of glass, transparent, inspired modernist constructions, which make use of natural light and which actually function, Berlin has its Reichstag, which houses the Bundestag, the German parliament. Paris has its pyramid of the Louvre, La Pyramide du Louvre, which serves Paris as the main entrance to the Louvre museum. We in Sydney can now rejoice in having Level 21, Queen’s Square, an arguably equally compelling, brave concept, serving Sydney’s lawyers, clients and the public.
Your Honour, in recognition of your pivotal role in this Court project and that of the Commonwealth Law Court buildings in Melbourne and Adelaide, I think it is only fitting that today we dub you the Lachlan Macquarie of court architecture. The egalitarian philosophy reflected in these buildings is mirrored in your Honour’s life and work in the pursuit of social justice, equity and fairness, whether it relates to the number of women on the bench, the plight of unrepresented litigants, human rights issues or law reform. On behalf of the solicitors of New South Wales, I am honoured and privileged to speak on this occasion and to add my valedictory remarks.
From an early age, your Honour cultivated a wide range of interests. In your university days, your Honour enjoyed politics and was one-time president of the Law Students Society. You also showed great interest in vintage cars. You met your wife to be, Margaret, with whom you now share a daughter, Sarah, and son, Rufus. After serving articles with Middleton McEachern Shaw and Birch, your Honour came to the Bar in 1964 and read with the late Edward Lloyd QC who also shared your Honour’s enthusiasm for gadgetry and model collections.
As a junior barrister, your Honour mentored 11 readers, the majority of whom went on to become judges. One of the first to benefit from your Honour’s mentoring, in 1973, was Victorian barrister Remy van de Wiel QC. He is ever grateful for your Honour’s support in disregarding the perceived inappropriateness of his penchant for wearing red corduroy overalls at work and his association with a free legal service. In

particular, Remy van de Wiel admired your Honour’s fine people skills, including your ability to extract information gently and to always treat clients with respect and compassion. In those days, your Honour’s interests extended to Swiss Villiger cigars by the box load and all things Italian, punctuated by your Honour’s occasional Fellini-esque gestures and phraseology. Absent in those earlier years was a sight of the ubiquitous document trolleys manoeuvred by a taxed young lawyer, a sight today that is wont to bring your Honour out in a rash.


As you remarked at a Commercial Bar Association of Victoria function in 2005, the qualities that need to be fostered in dealing with the real issues of litigation include a rejection of sloppiness of thought and preparation that produces, for example, dozens of lever arch folders containing thousands of documents to which little, if any, reference is ever made.
During your 26 years as an advocate, your Honour was much admired for your presentation of legal argument and a thrill that a carefully constructed argument will always be music to your ears. In the Commonwealth v Tasmania (Franklin Dams) case of the 1980s, Victorian barrister Brian Cohen assisted your Honour in fielding calls from tree huggers imploring you to please convey to the judges that the trees were hurting. As an intervener, your Honour had only a short window in which to address the Court and make your case which you did to considerable acclaim. The date July 1st, 1983, when the High Court of Australia ruled to halt the damming of the Franklin River was a black day for Tasmania according to the State’s shadow Attorney-General. For your Honour, the Wilderness Society and its campaigners, a black day translated to a landmark win.
On New Year’s Day 1991, your Honour was appointed Chief Justice of the Federal Court of Australia around the same time that the honourable Peter Heerey was appointed as a judge of the Federal Court. At his retirement ceremony last year, his Honour recalled:
We joined HMAS Federal Court as admiral and midshipman. Subsequently, that ship encountered, from time to time, various perils of the sea. Chief Justice Black managed all this with his unique combination of disarming bonhomie and Florentine subtlety. It has been, in my experience, a happy ship, indeed.
Your colleagues and staff would concur. From a simple signage change at the Melbourne Registry, to the first Federal Court judgment broadcast live via the internet in 1999 and the extensive Court refurbishments, your Honour has steered a course aimed at delivering a more service-oriented and accessible court system. Your Honour has seen many changes during your 19 years. As Mr Bathurst just stated, of note was the Native Title Act giving the Federal Court responsibility for managing and determining all applications relating to native title.
In recent years, the number of company law matters and intellectual property cases before the Court has increased, so it is timely that your Honour’s championing of the fast tracking of cases through case summaries for pleadings and limited discovery has finally come to fruition. Recently, your Honour was quoted as saying that you

would like to be seen as someone who listens to all reasonable points of view, as thoughtful, caring of people, and possessing wide interests and a sense of humour. Your Honour, you have excelled on all accounts.


Your Honour has exhibited a fondness for foreign languages, including French and Italian. Having had the privilege of hearing your Honour give a lengthy address in French to the 10th Congress of the International Association of Supreme Administrative Jurisdictions, I was one of many who were impressed, not only with your command of the language and your excellent accent, but also your desire to be inclusive and to make the international delegates feel welcome.
François Rabelais, the 16th century French equivalent of Shakespeare, struggled to make the activity of reading accessible to the masses by writing in French as opposed to the Latin languages than used by ecclesiastic authorities and the intellectual elite. Similarly, the struggle to make courts, law and justice more accessible to the public has in some way been accomplished by your Honour’s moves to make the Court more human friendly with natural light and less intimidating in many other subtle ways. I am sure your Honour would appreciate the Rabelais quote:
One inch of joy surmounts of grief a span because to laugh is proper to the man. Live joyously.
Il vaut mieux ecrire du rire que des larmes parce que rire est le propre de l’homme. Vivez joyeux.
Your Honour has addressed the Court of Appeal in Paris in French, as well as delivering speeches in Ottawa to the Federal Court of Canada. I am told that perhaps slightly less successful have been your Honour’s attempts to master Indonesian. On one occasion, your Honour was in Jakarta, having prepared and phonetically marked up a speech to be delivered in Indonesian. Unfortunately, or perhaps fortunately, it seems your Honour became ill at the last minute and was not able to present it. In an article in the Victorian Bar News of 1991 entitled Welcome Chief Justice Black, your Honour’s appointment was commended as follows:
The elegance of mind and of argument, the sharpness of wit and the passionate belief in the importance of the legal system doing justice, we are sure his Honour will preside over a forum distinguished for its civility, learning and patience.
And so it has come to pass.
With your numerous interests in languages, architecture and agriculture, there will be plenty to occupy your Honour in the years ahead. Your Honour’s contribution to the pursuit of social justice will be a lasting legacy, as will your instrumental role in this country’s court architecture. While perhaps not yet as well-known as Paris’ Pyramide du Louvre, this Courtroom, Level 21, has its own audacious spirit and

cultural significance, and will attract many admirers in addition to those who are compelled to appear before it. Your Honour, the solicitors of New South Wales wish you continued success, happiness and fulfilment in the years ahead. Vivez joyeux! As the Court pleases.


BLACK CJ: Thank you very much, Ms Macken.
Before we continue, let me say this. Having been a barrister once, and still in heart, I know what it is like to think you are going to be in Court somewhere else at 10.15 and the previous proceeding does not finish. I would not be offended nor, I am sure, would my colleagues, if any of you members of the Bar, who have so generously come here, were to discreetly slip out. I would understand. I have been in that position myself. I will not tell war stories, but it was quite horrifying. So if you would like to leave, I really do understand because I am going to take a few minutes to thank people that I want to thank and now is the time to go if you want to.
Thank you, Mr Solicitor for the Commonwealth, Mr Bathurst and Mrs Macken for your very generous remarks. The ghostly figure that I saw there was that of Commissioner Bigge but he has disappeared, I am pleased to say.
I have developed an interest in retirement speeches over the last little while, and I know that one of the usual responses to generous comments such as yours is to note that they are not made on oath and not subject to any contradictor. I might add that they should perhaps be treated as our rules allow matters to be treated, as submissions – submissions of experts such as economists, but perhaps that would be going too far. I thank you very much indeed for what you have so generously said.
The Court is greatly honoured today by the presence of so many distinguished people, and I am both honoured and delighted by their presence. I am especially honoured by the presence of three former Chief Justices of the High Court of Australia, the Honourable Sir Anthony Mason, the Honourable Sir Gerard Brennan and the Honourable Murray Gleeson, and by the presence of Lady Mason and Mrs Gleeson. I am deeply honoured by your presence, and likewise that of my friend the Chief Justice of New South Wales and the President of the Court of Appeal, and by so many members of the Court of Appeal and of the Supreme Court.
Recalling the capacity of the advocate to scan groups of people – at least 12 at a time – I see many friends from old days and recent days, and I am very moved by your presence. The relationship between the Federal Court and the Supreme Court of New South Wales has been and remains very strong, and it is good that it is so. As I have said, I have friends there, some present, who date from my days at the Bar. I would dearly have loved John Lockhart, Brian Beaumont, John Lehane, Peter Hely and Graham Hill to have been here today too, and they should have been. Their loss and others, all but one within the space of about 12 months, was very hard to bear. Still, the Court got itself up and continued and has prospered, and I am delighted to see so many of our much revered retired judges present.
We are delighted also that the judges of the Family Court of Australia are present, as are the Chief Judge of the Land and Environment Court, the Chief Federal Magistrate and the Federal Magistrates who undertake the general federal work in Sydney. It is particularly good to see you all here. And finally, I must mention – I am not sure that Ms Macken knew this – but we are now greatly honoured by the presence of very distinguished jurists and judges from other jurisdictions. They include M. Jean-Marc Sauvé, the head of the Council of State of France, the Conseil d’État; Councillors of the Conseil d’État, including the Secretary-General; and also the Honourable Pierre Blais, the Chief Justice of the Federal Court of Appeal of Canada; and the Honourable David Baragwanath of the Court of Appeal of New Zealand.
Justice Downes and I have recently had the privilege of working with them as Co-Presidents of the International Association of Supreme Administrative Jurisdictions during its 10th Congress held in Sydney and in Canberra. It has been a particular pleasure to have worked with the members of the Conseil d’État of France and with other members of this very important international organisation. My friend and colleague, the Deputy Chief Justice of Indonesia, Dr Paulus Lotulung, was also here and was hoping to be present today, but has had to return to Jakarta this morning. He has sent his apology. The foundation judges of the Federal Court – and some of them are here – were keenly interested in international links and particularly those within our region. This was at a time when “the region” did not mean as much as it does today.
The High Court also provided a lead in that matter and I recall that it was Sir Anthony Mason who proposed that the Council of Chief Justices should become the Council of Chief Justices of Australia and New Zealand. One of the developments in my time as Chief Justice of the Federal Court about which we may, I think, be particularly pleased has been the further development of relationships with other courts in our region and courts far beyond. During the course of these, there has been a much greater exchange of ideas between the civil law system and the courts of the common law world and this, plainly, is wholly for the good. It has produced benefits at many levels.
Within Australia too, there is a very strong sense of interconnectedness of the judiciaries, and we can indeed now refer to ourselves as members of an Australian judiciary and as having an Australian profession. But whilst doing so, we feel no less attached to our own institutions and their own deep historical foundations. I have been very conscious of those foundations over the past few weeks. That said, jurisprudentially and in reality, we are all part of an integrated legal system in Australia, and it has been a great privilege to be part of that. As I have said, it is good to see so many members of the New South Wales Bar present today. I have had the pleasure of an association with that Bar since I came to Sydney from time to time in the course of my federal practice in the mid-1970s.
One of the great characteristics of the New South Wales Bar is the strength and quality of its advocacy and that persists undiminished. It is not known for its timidity, but it is certainly known for its strength, and we have benefited from it greatly in this Court and in the other capitals as well. And Mr Bathurst, we do love you in Victoria, and your colleagues and the Solicitor-General, and indeed, the Solicitor-General for New South Wales as well.
I am particularly pleased to see the Honourable Tom Hughes QC at the bar table. He is and was a great leader of the Bar when I was in practice, and I recall with gratitude that he came down to Melbourne 20 years ago for my welcome there. One remembers things like that.
We are also delighted to see the Honourable Robert Ellicott QC in Court. He, whilst Attorney-General for the Commonwealth and in other capacities as a Member of the Parliament, was effectively, very effectively, one of the great founders of our Court. I am delighted that he is with us. I am delighted too that the Law Deans are here, symbolising the essential link between the Court and legal scholarship.
Well, now, I now turn to respond as briefly as I can, but appropriately I hope, to the generous observations that you have been kind enough to make, recognising again that no contradictor has been heard. I respond to what you have said by emphasising the work of two groups of people that have provided the foundation for anything that has been achieved during my time and with whom the credit should be shared. The first are our wonderful staff, including my own staff. As a self-administered Court, they are in a very practical sense “our” staff. I greatly appreciate their dedication and their loyalty to the service of the people through the judicial branch of government.
I had the great pleasure of being hosted by them yesterday afternoon here in Sydney, and it was a very moving experience. I thank them all. I cannot, of course, mention more than a few of them by name. The staff of the Principal Registry, and especially our outstanding Registrar, Mr Soden, will be a subject of a tribute by me when I sit for the last time next week, which will be in Melbourne. I do, however, want to thank our Deputy Registrar, Philip Kellow. He lives and works here and is well-known in Sydney for his excellent work in many fields. I thank also our Manager of Policy and Planning, Ms Connolly and our District Registrar, Mr Michael Wall. I thank too our former District Registrar, Mr John Mathieson, who I am delighted to see here.
Our Deputy Registrars in Sydney perform magnificently in a wide range of fields, including assisted dispute resolution in which they have achieved some spectacular results. Our small International Programs Directorate is based here in Sydney, and I want to recognise the marvellous work done by our Director, Ms Helen Burrows, and her assistant, Ms Hannah Clua-Saunders. I must say also that I am especially grateful to Stephen Williams, who is not a court officer but has acted as one this morning, and who with his colleague, Mr Peter Pholi, coordinates all our Court Services here in Sydney and does so very well. He is one of those who makes my frequent visits here always run so smoothly. I thank him and his colleagues very much indeed.
One other person, my Executive Officer, Mr Healey, deserves a chapter to himself as all the judges will agree. That is one thing I am quite confident about. He will certainly receive due recognition in Melbourne, but as he has organised, with the assistance of Mr Williams, every welcome and farewell that we have had in Sydney for the last 19 years and has done so flawlessly, it is only right that I should here express my gratitude to him; and in any event he was born in New South Wales.

As I said to the staff yesterday afternoon at our function, we are exceptionally fortunate to have such a wonderful body of people working with us and I thank them all most sincerely.


And so to my colleagues here in Sydney. As elsewhere, it has been an enormous privilege to work with such an exceptional group of judges who have contributed so much to the development of the law and to the progress of our Court. I am deeply grateful to them all. I would like to add that I have been doubly fortunate to have presided over a Court that is constituted by people who are not only outstanding judges, but whom I am happy and proud to call my friends. I thank them all.
Were this a theatrical performance, and the barrister in me still lives, I would invite – and please do not do this – applause to the Court as a whole. I would then emerge from the orchestra pit to acknowledge the performers in the way the conductors do, saying that they were the stars. Someone would then come on to the stage, from the right, and offer me a bouquet of flowers.
It will be apparent that there will be other things that should be said, particularly about the reforms that we have undertaken, and I emphasise “we”, and the support for those reforms, including the support that they have had from the executive and legislative branches of government.
I shall make some brief observations about those matters at my final sitting in Melbourne. There is no occasion to do so twice.
I shall greatly miss my very frequent visits to Sydney, but visits shall certainly not cease.
On that note I would end but for one further expression of thanks: to me, the most profound thanks of all are due to my spouse, Margaret.
Mr Williams, adjourn the Court, please.

_______________________


12.3.10 P-1

©Commonwealth of Australia





Share with your friends:




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page