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TRANSCRIPT OF PROCEEDINGS
FEDERAL COURT OF AUSTRALIA
CEREMONIAL SITTING OF THE FULL COURT
THE HONOURABLE JUSTICE LINDGREN
THE HONOURABLE MICHAEL BLACK AC, CHIEF JUSTICE
THE HONOURABLE JUSTICE MOORE
THE HONOURABLE JUSTICE LINDGREN
THE HONOURABLE JUSTICE FINN
THE HONOURABLE JUSTICE EMMETT
THE HONOURABLE JUSTICE FINKELSTEIN
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE STONE
THE HONOURABLE JUSTICE DOWNES AM
THE HONOURABLE JUSTICE JACOBSON
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 PERRAM
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
9.35 AM, THURSDAY, 11 FEBRUARY 2010
BLACK CJ: Before I invite the Solicitor-General for the Commonwealth to address the court, I would like to add some – I would like to make some brief comments on behalf of the judges and of course on my own behalf. I do so as an expression of gratitude, my own gratitude and that of all the other members of the court. I am very pleased to say that nearly half of the court is present in Sydney today and I know that I speak on behalf of us all because judges from around the country have been calling me to ask did I pass on their good wishes too. Indeed, Justice Spender has been most insistent that I specifically pass on the affectionate good wishes of the Brisbane judges and I do so and of course that will be recorded in the transcript. That is the general feeling throughout the court. Justice Lindgren’s contribution to our work, to our jurisprudence and to our collegiate life has been very substantial indeed and consistently so for a very long time. His more public achievements will no doubt be referred to by the speakers this morning but I want to make reference to some of his work that may be less well known outside the court. Our gratitude for this work should also be on the public record. Soon after Justice Lindgren joined the court he became a member of our rules committee and has been the convenor of that committee since 1995. He has also been a member of the rules revision committee since 1999 and was its convenor for many years. In an article in volume 83 of the Australian Law Journal the formulation and drafting of rules of court was described by a very learned author in these terms:
A laborious, time-consuming process calling for patience, tenacity and close attention to detail.
Many would not regard that as an inviting description of work to be undertaken. The author however was Justice Lindgren and he was describing his own work as a member of the harmonisation committee. Very important work to which I will refer in a moment. Not only is the work of these committees correctly described by Justice Lindgren as laborious and as calling for the qualities that he listed in his article. It also involves the unenviable prospect of having the fruits of one’s labours minutely examined twice a year at meetings of the whole court. At those meetings the convenor of the rules committee stands alone to present the proposals for changes to a group of judges whose natural inclination is to challenge any form of words that they themselves have not drafted and at best to suggest what they euphemistically call improvements. Despite this, Justice Lindgren persisted with his unglamorous but extremely important work with good humour which is one of his many fine characteristics and undiminished skill and enthusiasm. Another of his notable achievements has been his leadership for many years of the committee for the harmonisation of court rules established by the Council of Chief Justices of Australia and New Zealand. This committee had its origins in the pioneering work undertaken by the late Justice Lockhart of our court and Justice McClellan then Chief Judge in Equity of the Supreme Court for the harmonisation of rules relating to corporations. As Justice Lindgren has pointed out
in his article, rule making is an autonomous function of each court and no court is bound to participate in any harmonisation exercise. Nevertheless, under Justice Lindgren’s leadership, and this required real leadership, there has been a striking degree of co-operation between the representatives of the Supreme Courts and the Federal Court and at times the High Court of New Zealand when they have worked together as members of this committee to establish truly harmonised rules in areas in which they ought to be harmonised. The degree to which this has occurred and I again stress that it has occurred in areas when it ought to have occurred as much to the leadership, insights and plain hard work of Justice Lindgren. The work is of national importance and great value. We all have reason to be very grateful to him and his colleagues for this unglamorous but important work. As everyone knows, Justice Lindgren has a great passion for books. This is a reflection of his larger passion for scholarship. It is in this connection that I record, again with much gratitude his work, as a member of our library committee for the past 13 years and as its convenor for half of that period. He has also served in the important role of one of the Federal Court’s representatives on the joint law courts library committee here in Sydney. He has done so for nearly 15 years. Above all of this have been Justice Lindgren’s very notable contributions to legal scholarship and as I have said his contributions to the collegiate life of our court. I express the views of all of us when I say that it has been a great privilege and a great pleasure to have worked with Justice Lindgren as a colleague. In my own case, it has been a particular pleasure to share with him most of my own time as a member of this court. On behalf of us all, Justice Lindgren, I express a heartfelt thanks and we offer a very warm good wishes to you and to your family. Mr Solicitor for the Commonwealth, do you move? MR S. GAGELER SC: If the court pleases, I acknowledge the traditional owners of the land on which we meet and I pay my respects to their Elders past and present. Quite a number of us then at the Australian Bar including quite a number of us now present in varying capacities were involved in the mid-1990s in some now largely forgotten trans-national mega litigation which never went to trial but which occupied more than 100 days of the time of this court in complex interlocutory skirmishing. My client in that mega litigation was an American law firm which found itself unhappily the umpteenth cross-respondent. The agent of my client in Australia was a world-weary, battle-hardened senior New York commercial litigation partner who did not like to be sued and especially did not like to be sued in Australia. He took a keen and highly critical interest in every step in the proceeding. He sat for days at the back of the court room here in Queens Square in Sydney as the docket judge heard and determined complex interlocutory application after complex interlocutory application, methodically, courteously, tirelessly and decisively working through an agenda which he drew up and published himself every morning for the benefit of counsel, disposing of many points of difficulty and novelty and even granting what I believe to be Australia’s first ante-ante-ante-suit injunction.
That world-weary, battle-hardened senior New York commercial litigation partner who was the agent of my client ventured an overall assessment. “That judge,” he said, “is the best judge I’ve ever seen.” That judge was the Honourable Justice Kevin Lindgren who retires today after more than 15 years of service as a member of this court. It is an honour and a privilege to be able to represent the Australian Government at this special sitting and in doing so publicly and formally to pay tribute to your Honour and to celebrate your Honour’s career. Your Honour’s career has at every stage been one of extraordinary industry. Your Honour was educated in Newcastle and on leaving school in 1957 you commenced your career in law as an articled clerk with Harris Wheeler, Solicitors. When your Honour took the examination for the Solicitor’s Admission Board you achieved first place in New South Wales whilst remarkably undertaking a Bachelor of Arts degree at the University of New South Wales through the Newcastle University College. In 1962 your Honour was admitted as a solicitor of the Supreme Court of New South Wales and in the same year you became a partner of Harris Wheeler. In 1965 your Honour was awarded a Bachelor of Laws with honours by the University of London and in 1967 you were awarded a Master of Arts from the University of Newcastle where you went on to complete your doctorate. In 1969 your Honour joined the staff of the University of Newcastle as a lecturer in legal studies. Your Honour was appointed a senior lecturer in 1971 then Professor of Law in 1973 where your Honour remained until your admission to the bar in 1984. Your Honour at the bar developed and maintained a huge equity and commercial practice. At the time of your appointment as Queens Counsel in 1991 and at the time of your appointment as a judge of this court in 1994, you were practising here in Sydney where you were located at the epicentre of commercial practice on the 11th floor of Selbourne Chambers. Your Honours contribution to the life of this court has been justly described by your Honour’s peers as without peer. It sets the bar at a level few could match. Indeed, your departure has been talked about within the court with some dread for some considerable time. The Chief Justice has already highlighted your work as convenor of the Federal Court’s Rules Committee over many years and as convenor of the various court rules harmonisation committees of the Counsel of Chief Justices of Australia and New Zealand. He has already emphasised that it is far from glamorous but he has rightly pointed out that it is of profound importance. During your time on the bench, you’ve also held a number of statutory and other office appointments, all of them involving a considerable amount of effort, none of them token. Your Honour has been Chair of the Education Committee of the New South Wales Bar Association, President of the Copyright Tribunal of Australia and a judicial representative of the Council of the Australian Institute of Judicial Administration. Your Honour is also Foundation Fellow of the Australian Academy of Law, Adjunct Professor in the Faculty of Law at the University of Sydney, conjoint Professor of the Law School at the University of Newcastle, a member of the Executive Council of the Faculty of Law of the
University of Technology Sydney. You have also been a member of the board of directors of the College of Law of New South Wales. Your Honour has been the author or editor alone or conjointly of numerous books, journal articles and conference papers, particularly on the subject of commercial law. Your Honour’s many books include, Business Law of Australia, first published in 1971 and now in its 11th edition. Your Honour’s interest in commercial law is also demonstrated by your time as convenor of the Corporations Panel and member of the Tax Patents and Admiralty Panels in the New South Wales District Registry of this court. Your Honour has been a contributor to conferences, university courses, seminars and training programs for the judiciary and the legal profession. Your Honour’s energy and conscientious approach was illustrated in the later part of 2009 by your role as convenor of the planning committee for the conference of international commercial litigation and dispute resolution that was held in the Federal Court here in Sydney. The tributes rightly accorded to your Honour in relation to that successful event were very much deserved. Yet it is as a judge, doing the workaday work of judging that your Honour perhaps leaves the greatest legacy. Your Honour’s mastery of the law is second to none but that is not the point. Your Honour’s industry is legendary but nor is that the point. The judicial attribute for which your Honour will perhaps most be remembered is far greater than either of those. It is your sincerity in understanding and showing that you understand the perspective of each party. In your Honour’s court everyone has been a winner. When your Honour decides cases, winning parties feel that they have been vindicated and losing parties feel that they have been listened to fairly and that they have been thoroughly understood. Your Honour’s dedication to work has co-existed with a dedication to another pursuit, to your Honour’s sporting passion, tennis. It is no secret that your Honour’s backhand bears a startling resemblance to that of Roger Federer. Your Honour’s regular practice for some years has been to play a game of tennis every weekday morning before work regardless of the weather and then just for a change to warm up with a game of tennis on a Saturday morning before spending the remainder of the weekend working in chambers. There is no constitutional retirement age for tennis players and I hope your Honour’s enjoyment of the game will long continue. Your Honour has a proud record of achievement over a legal career that has spanned five decades. Your Honour leaves office with the utmost appreciation and goodwill. You will be sorely missed both personally and professionally. At a personal level, your unflappable, unassuming and modest manner are much admired. Professionally, you are universally held in the highest regard both by your judicial colleagues and by those within the profession. There is no doubt that you leave this court with an indelible legacy. Your Honour, on behalf of the Australian Government and on behalf of the Australian people, I extend to you my very best wishes on your retirement, may it please the court.
BLACK CJ: Thank you, Mr Solicitor, for the Commonwealth. Mr Catanzariti, do you move? MR J. CATANZARITI: May it please the court. It is a pleasure and privilege to represent the Law Council today as we celebrate your Honour’s career. The President of the Law Council, Glen Ferguson, regrets that he is unable to be here but he sends his personal congratulations and best wishes. As the peak body representing the legal profession in Australia, the Law Council of Australia is honoured to be involved in today’s farewell, and I speak on behalf of everyone involved in the Law Council when I congratulate your Honour on your long and distinguished judicial career. Your Honour’s contribution to the Australian legal profession has been significant. One would be hard pressed to meet a judge with more strings to their bow than your Honour. You have been a solicitor, barrister, academic, writer, editor and of course, a highly respected and admired judge. You also served, among other things, as a member of the board of directors of the College of Law from 1995 to 1999. I am currently the chair of the board of directors of the College of Law, but our paths unfortunately did not cross. But according to Neville Carter, managing director and principal of the College of Law, your Honour made an extremely valuable contribution to the College and its activities. The foundation board, of which you were a member, had been set the objective of transiting the College enterprise from its former status as a fully-funded regulatory monopoly, to a financially autonomous corporation operating in the newly national and newly competitive environment. The objective was achieved by the board in a few short years and your Honour’s unique combination of skills meant that you played an important leadership role for all stages. The College now operates as a college for all of Australia and New Zealand, with Asia the next target. Your Honour chaired the College’s CLE Committee for many years, and in more recent times was a member of the advisory committee for the College’s master degree program in applied law commercial litigation. More generally, your Honour has a prolific contributor to the College’s CLE and related programs and to all manner of educational activities supporting practising lawyers. CLE Director, Una Doyle, remembers your Honour for his green pen. Once the green pen came out, Una says you knew it was going to need a bit of work. Your Honour is also vice-patron of the Australian Literacy and Numeracy Foundation, a cause you are clearly passionate about. As your Honour states on the Foundation’s website, “How to read and write: what goal could be more worthy than to teach these skills to marginalised Australians?” Your Honour assisted the Law Council last year, presiding over a pre-recorded mock trial which was showcased at the Council’s first ever overseas conference, the Australia European Lawyers Conference held in Berlin in October. The mock trial highlighted legal issues of current concern for the Australian Government and overseas investments in Australian mineral resources. It was very
well received by all attendees and we are very grateful to your Honour’s involvement. Without your support, this session would not have been possible. Even in retirement, your Honour will contribute to the Law Council. Later this month, you will be one of the keynote speakers at a Law Council conference on superannuation: an appropriate subject given your pending retirement. During your career on the bench, your Honour has presided over many important matters. However, the case that arguably grabbed most of the headlines, especially the tabloids, focussed on a subject matter a little more – well – low-brow, referred to some as the case of the game show host, the nasal spray and the spin doctor. It involved a well-known TV personality, spruiking a cure for impotence. The problem was the personality in question was not impotent, had never been impotent and has apparently never used the spray in question, but it didn’t stop him extolling the virtues of the product. We won’t name names in this court room, but the case illustrated that it is amazing what celebrities will endorse if the price is right. During your years as a judge of the Federal Court, your Honour has not only made an outstanding contribution to the law and the administration of justice, but also been a wonderful mentor to the 15 young lawyers who each had the privilege to serve as your associate for a year soon after graduating. At a recent gathering of these associates attended by your Honour, each of them shared a few memories of their time working with you. All of those memories were of a man who, even under immense pressure, always managed to remain good humoured and to take time to foster the learning and development of those working for him. In each case, what began as a working relationship developed over the course of the year into a firm and lasting friendship. A few other common themes emerged, including your Honour’s legendary work ethic, your delightfully wicked sense of humour, your genuine interest in your associate’s personal lives, even extending to offering to help one associate move house, probably because you’d seen the state of the share flat he was living in at the time, and your uncanny ability, when travelling interstate on court business, to leave your suit behind. To your Honour’s great credit, you became rather good at emergency shopping at David Jones and Myer in all capital cities, although we are not sure where you shopped at Kalgoorlie. Perhaps a suit was optional there. Your Honour also formed close relationships with many associates working for other judges in the court over the years because each one was a potential tennis opponent. The younger and fitter the person, the greater the challenge, and the more keen you were to arrange a match. Many a young associate has been heard to marvel at your Honour’s fitness and determination on the tennis court. Your fitness is perhaps one reason why you don’t look any older today than you did when you were first sworn as a judge 16 years ago. You also have a reputation as a stickler for even the smallest detail. Your obsessiveness was noted one year when you organised the annual judges’ tennis day, inviting judges from across the country to this event, held on Sydney’s north shore. Your Honour was determined to provide them with the most accurate directions at the tennis court in question, so you attached to the invitation, a photocopy from the
relevant page of the Gregory’s Guide. Most people would have stopped at that, but your Honour went further by attaching to the map, a note, assuring your fellow judges that you had checked back with the Gregory’s organisation and had written copyright approval for this photocopy exercise. Only your Honour would go to that degree of detailed compliance. A guest at the tennis day, former High Court Chief Justice, Murray Gleeson, even made reference to your Honour’s attention to detail in a short speech read at the end of the event. It was a very successful day, I’m told, and no players got lost on their way to the courts. From all of us at the Law Council of Australia, and on behalf of everyone in the legal profession, congratulations on your distinguished career. Your contribution to the law will be sorely missed. May it please the court. BLACK CJ: Thank you, Mr Catanzariti. Mr Bathurst, do you move? MR T. BATHURST QC: May it please the court. It is an honour and a great pleasure to speak on this occasion, both on behalf of members of the bar at New South Wales, and all members of the Australian Bar. The President of the Australian Bar Association, Mr Reardon, has asked me to convey his warmest wishes to your Honour and his regrets that he cannot be here today. The pleasure I have, however, is tainted with regret due to the fact that this court is losing one of its finest political officers. Your Honour and Justice McHugh were undoubtedly the two most distinguished lawyers to emerge from Newcastle. Your legal career commenced with practises as a solicitor from 1962 to 1969. Even at that stage of your career, your Honour demonstrates the care and attention to detail which would become the hallmark of your career. A colleague reminded me that a few years ago, he appeared for the Commonwealth Bank against a Newcastle resident who had alleged that they’d been misled into signing a mortgage some 30 years before by the conduct of certain bank officers. He inspected – the plaintiff bore a heavy onus, having regard to the allegations. Once the mortgage was inspected, it was seen that the person who in fact had certified the mortgage was a Mr K.E. Lindgren, solicitor. The onus immediately became heavy and heavier and, hardly surprisingly, insurmountable. Your Honour moved to the academic world in 1969, first as a lecturer, and ultimately a professor of law and dean of the faculty. Your Honour did much to establish the law faculty in Newcastle, a habit which occurred at every area where you have practised. Your Honour was a distinguished academic whose work enhanced the reputation of the university. Your Honour’s time at the university heralded a life-long commitment to legal education. Whilst at the university, your Honour wrote extensively on your then specialities, contract law, equity and trusts. Perhaps the most significant publication at that time was your Honour’s co-authorship of the first edition of Lindgren, Carter and Harland on Contract. That book, which is now in its seventh edition has become the standard text of both students and practitioners in that area. My only regret was it wasn’t available when I
sought to study contracts. Your Honour saw the light and came to the bar in 1984 and to chambers which I think could fairly be described as reasonably close to the epicentre of the bar. Your Honour developed an extraordinarily large practice and demonstrated the insatiable capacity for work that marked the rest of your career. Your Honour was on the same floor as Justice Foster. Apparently late one night, his Honour saw the light on in your chambers and put his head around the door to say goodnight. He found you asleep with your hand clutching a dictaphone. I understood you revised the opinion the next day. I’m also told that your Honour had the very bad habit of slipping away whilst on holidays to dictate a few opinions. That habit apparently did not impress your family very much, particularly on one occasion when your wife found you at midnight in the family car dictating an urgent opinion. Your Honour found time to significantly contribute to the activities of the bar. You were its representative on the Legal Profession Board and chairman of the Legal Education and Reading Committee. Your work on that committee was extraordinary. The New South Wales Bar is very proud of its reading course and its legal education courses. The success of those courses since the early 1990s has been due in very large measure to the work you put in establishing them and refining them. You took silk in 1991, after only seven years of practice. In your brief period from 1991 to 1994 as a silk, you were an outstanding success. All too soon, however, in 1994 you came to this court. Your Honour was a tireless worker on the bench. You practised in every area of the court’s jurisdiction: trade practices, taxation, corporations law, native title, immigration and intellectual property. Your Honour was at the forefront of advancing judicial education in this country. You organised many seminars and conferences, including, most recently, an international commercial litigation and dispute resolution conference attended by judges from throughout the Asia-Pacific region. Throughout your career you retained your sense of humour. It was always a pleasure to appear before you. You had the ability to get out the best of counsel. I do not propose to list any of the numerous important decisions you made during your judicial career. Even more significant was the unfailing courtesy, respect and consideration you gave to persons who appeared before you and those who are privileged to work with you. You had the ability, matched, in my experience, only by Sir Laurence Street and the late Justice Needham, to ensure that even the most unsuccessful litigant went away thinking he or she had a fair hearing and that justice was done. That is truly the mark of a great judge. Your Honour’s legal career has had four phases: solicitor, academic, barrister and judge. I am sure there will be a fifth phase. Although your Honour loves tennis, it is a hobby, not an occupation. Whatever be the fifth phase, on behalf of all members of the bar, can I wish you well and thank you for your services to the legal profession and to the community generally. May it please the court.
BLACK CJ: Thank you, Mr Bathurst. Ms, Macken, do you move? MS M. MACKEN: May it please the court. Australia’s seventh largest city, Newcastle, is a city steeped in history and culture, famous for its coal exports, world-class beaches and spectacular coastline. It is also the birthplace of many eminent Australians. Four times world champion surfer, Mark Richards, comes to mind, as does High Court judge, the honourable Michael McHugh. Then there is your Honour, another proud Novocastrian, whose life, career and contribution to the law and administration of justice we celebrate here today. Your Honour, on behalf of the solicitors of New South Wales, I am honoured to add my valedictory remarks on this occasion and to wish you well for the futures. Raised in the working class suburb of Tighes Hill in Newcastle, your late father was a carpenter. However, your Honour and younger brother, Ross, went down the legal career path. As your Honour, in later years, pointed out in the article, “Reflections on Legal Education” published in the Newcastle Law Review, the making of these arrangements took place between the clerks, parents and the solicitor and, as a young, inexperienced, secondary school graduate, the clerk had no significant part in it at all. Your Honour, we are forever grateful that the law chose you. Your Honour topped the class of ’56 with the highest leaving certificate results at Newcastle Boys’ Technical High School. However, certification as to your suitability for the profession of law still had to be ascertained before you could be considered for articles of clerkship. These references were duly supplied by your Honour’s school headmaster and local church, and stated that your Honour was, indeed, a lad of excellent character with a very nice personality, of more than average intelligence and eminently suited for articles of clerkship. Your Honour gained employment in what was then the biggest law firm in Newcastle, H.D. Harris Wheeler and Williams, as an articles law clerk. Your Honour completed the solicitors’ Admission Board examinations and shared first place in final law and the New South Wales Law Society prize. Admitted to practice in May 1962, your Honour became a partner in Harris Wheeler Williams & MacKenzie that same year. While I shan’t reiterate earlier speakers’ comments, I do wish to highlight the fact that your Honour completed all your studies, including a Bachelor of Arts degree, Bachelor of Laws, Masters and PhD while holding down fulltime employment. Perhaps it was an early indication of the immense workload and range of activities your Honour has been able to juggle over the years. In 1984, your Honour took up fulltime practice at the bar. Appointed Queens Counsel in 1991, your Honour practised at the bar primarily in commercial law until your elevation to the Federal Court bench in 1994.
We have heard that your Honour has published widely, a list too long to mention, but which includes An Introduction to Business Law, Business Law of Australian, The Law and Practice of Company Accounting in Australia and New Zealand, The Corporation and Australian Society, The Australian Firm and Contract Law in Australia, as well as numerous journal and other articles. Your Honour has presided over some high profile and complex cases of recent times. Of particular note is the 2007 judgment, Wongatha People v Western Australia, a native title case involving 100 sitting days, some 17,000 pages of transcript, and more than 10,000 pages of written submissions and expert reports. Other cases include the intellectual property case, Alphapharm v Lundbeck in 2008 relating to the validity and infringement of a patent for the antidepressant Escitalopram. In addition to lecturing and speaking engagements, your Honour organises various conferences and seminars, including the Judges Series of five seminars for the College of Law. In your own words, and as echoed by your colleagues, your Honour is a workaholic. While work may, indeed, be both a passion and a hobby, there are occasions when your Honour can acquit himself admirably in less familiar areas of expertise. For example, your Honour was engaged as the business manager when your wife, Wendy, as president of the Willoughby Symphony Choir, took the choristers to Europe in 2008. Your Honour likened your role to that of a groupie on the bus. One of your key tasks was to market the choir’s CDs at the German hall where the performances took place. This involved flashing a winning smile while ever so slightly inclining your head towards the five Euro per CD sign in the hope of making a sale. Your Honour is father to daughters: Hillary, a psychologist and mother of three boys and a girl; and Heidi, a language teacher. You have two sons-in-law, Greg and Dan, and will shortly boast five grandchildren along with your five cats. The two legged family members are well represented here today. However, it is recalled that there was a time when Greg’s future as a son-in-law was in some doubt by virtue of a rather unfortunate fishing expedition while at the family holiday home at Lake Macquarie. Having clambered aboard your Honour’s tinnie, it seems that Greg decided to make a rather long helicopter cast and, when winding up to release his line, struck your Honour in the forehead. All attempts to remove the hook failed, necessitating a trip to the nearest pharmacy. While waiting for the pharmacy to open, you both went to a café where, I am told, the waitress became quite distressed at the sight of a gentleman sitting at the table, eating is raisin toast with a hook protruding from his forehead. The hook was eventually removed. Greg still became your son-in-law. Your Honour, perhaps fishing won’t be on your future to-do list, but I am sure that, in addition to future writing and lecturing, your Honour will continue to serve in one court or another. On behalf of the solicitors of New South Wales, I wish you good health, happiness and fulfilment in the years ahead. As the court pleases.
BLACK CJ: Thank you, Ms Macken. Justice Lindgren. LINDGREN J: Mr Gageler, Mr Catanzariti, Mr Bathurst and Ms Macken. I thank you very much for your kind remarks. I will not say that I thought you must be speaking about someone else. Nonetheless, I feel that some of the things you said were quite undeserved – and you may make of that what you will.
I would like to thank, first, the Chief Justice and the Judges of the Court, not only for favouring me with this farewell ceremony, but also for their friendship and collegiate support over nearly 15 years. I have always considered it a privilege and an honour to be a judge, and count myself particularly fortunate to have been appointed to this Court. The work is varied and interesting, and I have enjoyed sitting interstate as well as in Sydney, and both at first instance and on appeal.
Much of the credit for the harmonious spirit that prevails throughout the Court is attributable to the personal qualities of our Chief Justice. You have always shown, Chief Justice, a genuine concern for the welfare of the Judges and staff of the Court. This has made the Court a particularly congenial environment in which to work. This is not to say that occasionally at Judges’ meetings, tribal State loyalties have not emerged, in fact somewhat after the fashion of a State of Origin Rugby League match. But like a good referee you have usually managed to bring calm.
I count my colleagues as good friends for whom I have a deep respect and whom I am very sorry to leave.
I wish to acknowledge too the benefit I have had from being associated with former Judges of the Court. It would be invidious to name particular former colleagues but I think I may be pardoned for the following. Justices Gummow and Foster were my as colleagues on Level 21 when I joined the Court in July 1994. They made me feel very welcome. It is unfortunate that Justice Gummow and other High Court Judges cannot be here today because the High Court is sitting in Canberra. I was particularly close to the late Justice John Lehane, who occupied the chambers next to mine following Justice Gummow’s appointment to the High Court. John’s passing was a great loss to the Court and to the nation.
If you take a moment to think of the Court’s many present and former Judges, you will agree that I have been fortunate indeed.
Next, I would like to acknowledge the debt I owe to counsel and solicitors, both when I was practising and while I have been a Judge. In order to administer justice according to law, Judges depend heavily on the members of the legal profession – their frankness with the Court; their awareness of their duty to assist the Court in the administration of justice; the thoroughness of their preparation and research; and their courtesy towards opponents, witnesses and the Bench. By and large the solicitors and barristers involved in the cases before me have scored well against all of these criteria.
Is it a churlish indulgence of hobbyhorses, however, for me to remind those present,
for the benefit of my colleagues in this Court and, I dare say, in the Supreme Court
(and I greatly appreciate the presence of Chief Justice Spigelman, President Allsop
and so many others Judges of the Supreme Court here today); (1) please give the
court realistic time limits; (2) please check that the legislation to which you refer is
the version that was in force at the relevant time; (3) please ensure that your
documents contain on the front page all
of the information that the Rules require; (4)
please make sure that in your submissions you refer to the authorised
set of reports
of the judicial decisions; and (5) to adopt the elegant judicial turn of phrase of then
Chief Justice Gleeson, whom I am delighted to see here today, “don’t go rabbiting
Sometimes at ceremonies like this, the person being farewelled says something about law reform. There is only one aspect of law reform that I wish to mention and I will pass over it quickly. The mandatory retirement age of 70 for Federal Judges is too low and should be raised.
Having got that off my chest, I would like to say a few words concerning my beginning in the Law.
The beginning was unorthodox, at least by today’s standards. There were two striking features: first, we were very young; and, second, we taught ourselves. By “we” I am referring to articled law clerks in Newcastle in the late 1950s and early 1960s.
That was a time when, in my firm’s office:
• there were spirit duplicators but not photocopiers;
• manual typewriters were yet to be replaced by electric ones;
• there was a receptionist who sat at a “front desk”, wore a headset with
mouthpiece, and operated a plug-in switchboard;
• “secretaries” were yet to be re-badged as “executive assistants” or
• the secretaries skilfully used carbon paper, “white out” and Indian ink;
• there was a system of intercom buzzers by which a partner could summon
an articled law clerk, somewhat after the nature of the “upstairs/downstairs” régime of the homes of the English aristocracy, I suppose of an era gone by. (Our buzzer system no longer worked but I know that one was in use in at least one other Newcastle firm.)
There was only one Law School in New South Wales – that at the University of Sydney. Most high school students in Newcastle who wished to become lawyers qualified by means of the Solicitors Admission Board – the SAB. This involved practical training through “articles of clerkship” and the passing of the SAB examinations. The word “articles” was used to refer to the experience as well as to the document.
You had to be 17 years old to sign Articles. They were for five years and the SAB examinations took 4½ years if you had no failures. You could be admitted to practice, without restriction, shortly after your 22nd birthday.
The way in which an articled law clerk’s progress on the practical side was spoken of, often in hushed tones, was by reference to whether he was now handling his own “matters”. (In Newcastle all but one of us were male.) By the time we were, say, 20 or 21 years old, we were preparing wills, acting on sales of land, acting on actions for damages for personal injury, and so on. Whether articled law clerks should have been entrusted with this work is another matter. In the particular circumstances, however, the distinction between a 22 year old articled law clerk and a 22 year old newly qualified solicitor was a fine one.
The quality of the articles experience depended on the size of the firm, the nature of its practice and the degree of interest and commitment of the Master Solicitor and of the articled law clerk. The uncontrolled and often poor quality of the practical training troubled the Law Society or its predecessor. It came to lay down guidelines with which it said its members should ensure that the articles experience complied. Eventually, however, the solution adopted was the establishment of the College of Law.
On my first day in the office, at the age of 16 years and 11 months in January 1957, I was directed to sit in the office of a recently qualified solicitor and to listen and learn. I remember the word “mortgage” often fell from his lips. I understood next to nothing. Shortly afterwards I was given an office to occupy, mainly I think because the young solicitor found it a nuisance to have a virtual schoolboy sitting in his office all day.
The office girls said to me “You’ll have to get out of that office when Johnnie Atto returns from Nasho”. They were using the familiar Australian slang suffixes exemplified by “mozzie” and “arvo”, or, closer to home, by Justices Nicho and Yatesy. They meant “when John Attwater returns from completing his compulsory National Service Training”.
On his first day back at the office, John, who must have been all of 18 or 19 years old, was in uniform. He cut a striking figure. To me as a beginner, Newcastle’s established articled law clerks appeared to be sophisticated men of the world. Many of them smoked. Some drove cars.
For the SAB examinations, all held in Sydney, there was no tuition – I mean none. There were no lectures, assignments or essays. The Solicitors Admission Rules
simply prescribed the materials we were to study. They were the Sydney University Law School Notes, and specified textbooks and statutes. Past examination papers gave some guidance. So far as the case law was concerned, your position depended on the quality of your firm’s library. Some articled law clerks studied in collaboration, but, generally speaking, we worked alone.
There were very few Australian legal texts. For example, there was no Australian text on the Law of Contract, the prescribed text being Anson’s Law of Contract
The Solicitors Admission Rules
contained emphatic warnings against reading the English textbooks that those Rules prescribed, without working out where the local law differed. On the basis of the Law School Notes and the Australian statutes, you had to make mental adjustments as you read.
The examination results were graded as “Satisfactory” or “Very Satisfactory”. There was no “Fail” result, although there was a high failure rate. The results were posted on a notice board at the Supreme Court in Sydney. A failure was indicated by the omission of the person’s name from the list of results for a subject.
Of course, there was no “feedback”. It was reputed that one of Newcastle’s most senior and respected solicitors had passed a particular subject only on the 13th attempt – a fact that was a source of amusement to the articled law clerks who were immersed in the system.
The system was almost totally unsatisfactory, and was certainly not “very satisfactory”. I say “almost”, because at least it forced you to draw on your own resources. You quickly matured and learned to accept responsibility – not a bad preparation for a lawyer. Some articled law clerks responded positively but others did not and persuaded their Master Solicitor to release them from their Articles.
Another benefit was that you knew that your studies were “relevant” in a general sense. You were working in a solicitor’s office and involved in the practice of law every day. You would eventually practise as a solicitor, provided only you passed the examinations and were of good fame and character.
My firm had a large general practice. In the Supreme Court Circuit sittings in Newcastle, we represented many plaintiffs who had been injured on the road or at work. Counsel who were briefed by my firm and with whom, as an articled law clerk and young solicitor, I had the benefit of working, included Athol Moffitt, Dennis Mahoney, Andrew Rogers and Colin Allen – all of them later Judges. I learned a great deal from them for which I am thankful. I am delighted that Andrew Rogers and Colin Allen are here today. Dennis Mahoney wrote me a particularly nice letter apologising for his inability to attend, saying this (and I quote):
. at Christmas I achieved the age of eighty five years. That means that, if I am to abide by the law, I must undergo a driving test. And the authorities demand that I do this on the day of your celebration and almost at the same hour. So I hope that you will understand my (regretful) inability to accept the invitation.
I replied wishing him good luck with the test. He might be attempting a hill start somewhere out there right now.
The personal injury cases were heard by juries of four. Each accident was
investigated with a thoroughness that would do credit to a large commercial cause of
today. There would be an advice on evidence: have photographs taken by a professional
photographer of the intersection where the accident occurred; have a
qualified surveyor prepare a survey plan of the intersection, covering such and such a
distance on either side of it and showing all permanent
landmarks; issue and serve
the following subpoenas, and so on.
Nearly all of the cases settled. It was a system that left much to be desired.
Jumping forward, I found it difficult to decide to resign my Chair at the University of Newcastle and to come to the Sydney Bar full time. Peter Young arranged for me to “read” in a fairly informal way with Brian Rayment. This meant that I would call on Brian from time to time when I was in Sydney. I am thankful to both of them for their support at that time.
I would also want to thank my former Clerk, Paul Daley, and all of my former colleagues on the Eleventh Floor, Selborne/Wentworth, for their friendship and support over the some ten years when I was a member of that Floor.
For me, today marks 52 years of full-time contemporaneous engagement in two closely related pursuits – the practice and the academic exploration of the law. It has only been the form and emphasis as between the two that have varied.
I have been asked “What will you do when you retire? Will you serve on another court?” to which I reply, “Yes, on several, including courts at Artarmon, Lindfield and Wollstonecraft”.
Some legal aspects of retirement have come to light. Mr Graham Healey reminded me that my commission expires at midnight tonight, not tomorrow which is my birthday. I contemplated marking my reluctance to leave by insisting on handing in my swipe card just before midnight tonight. Then I remembered that this would not be possible because my wife and I are going away this afternoon for a six day break. On hearing of this, Justice Flick asked if I had got the Chief Justice’s permission to take the few hours’ leave involved. He said that if not, I might forfeit the pension.
In conclusion – a few further words of thanks.
First, I want to thank my fifteen Associates. All but the two who are at Cambridge are here today. They have all said “thank you” at the end of their Associate’s year and, the thirteen of them, at a dinner last week. But it has been a privilege and benefit for me to have worked with all of these fine young lawyers. I thank them for that and for their continuing friendship.
Second, I thank my Executive Assistant, Robin Delahunty for her great support over the last 10 years. It is difficult to convey my appreciation of Robin’s diligence and loyalty, her great capacity to foresee problems, and her general attentiveness to my needs. One downside is that I have become very dependent on her and my Associates. Only last week, when I asked what must have been a basic question, she said “Gee, Judge – you’ve got a lot to learn”.
Third, I thank the Registry staff of the Court – all of them in both the Principal Registry and New South Wales District Registry – but in particular, the Deputy Registrar of the Court, Philip Kellow, with whom I have worked closely over the years on Rules, and Stephen Williams and Graham Healey who have attended to the many administrative matters associated with my retirement and with this ceremony.
Last, but not least, I thank my family, in particular my wife Wendy and daughters Hilary and Heidi, for having put up with my absences from home so much and over so many years. It is really Wendy who is to be credited with the upbringing of our two daughters, of both of whom I am very proud. Perhaps the only thing to be said in mitigation is that at any suggestion that I will now be able to make up for lost time by being around the house every day, Wendy falls strangely silent.
Last, or as Justice Bennett would say, really really last, I would like to thank all of
you for attending this farewell ceremony.
BLACK CJ: Ms Harrison, will you adjourn the court, please. MATTER ADJOURNED at 10.26 am INDEFINITELY
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