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TRANSCRIPT OF PROCEEDINGS

O/N 127044

FEDERAL COURT OF AUSTRALIA

A CEREMONIAL SITTING TO FAREWELL

THE HONOURABLE CHIEF JUSTICE BLACK AC

BENCH:
THE HONOURABLE CHIEF JUSTICE M.E.J. BLACK AC
THE HONOURABLE JUSTICE S.R. MARSHALL
THE HONOURABLE CHIEF JUSTICE EWAN CRAWFORD
THE HONOURABLE PETER HEEREY QC

HOBART

9.32 AM, FRIDAY, 12 FEBRUARY 2010

BLACK CJ:   Marshall J, I understand you wish to make some observations.

MARSHALL J:   Yes.  I first acknowledge the traditional owners of the land, the Moomairremener people of the Palawa nation and pay my respects to their elders past and present.

Before Mr O’Farrell is invited to address the court, on behalf of the Judges of the Court I acknowledge the contributions made by the Chief Justice to the jurisprudence and administration of the Court.  At the Chief Justice’s welcome to the Court, which occurred on 1 February 1991, Mr Alex Chernov QC, as he then was and is now again, on behalf of the Law Council of Australia said, and I quote:

Because of the high calibre of its members, and particularly the wisdom of the founding Chief Justice, this court has rightly established itself as a great court and the burden of leading it now rests on your Honour’s shoulders.  The legal profession throughout Australia is confident that your Honour will provide the necessary leadership.

That confidence was not misplaced.  The Chief Justice has led the Court over the last 19 years and in that time its jurisdiction and membership has expanded greatly.  The Chief Justice has overseen the introduction of several important developments.  Let me just briefly mention a few: the docket system, specialist panels in larger registries, electronic filing and e-court, fast-track case management and major building projects, including new Federal Court buildings in Melbourne and Adelaide and major refurbishments in Sydney and Hobart.

The Chief Justice has also overseen reforms aimed at increasing access to the Court by developing the Court’s pro bono assistance scheme in conjunction with the profession.  He has also been committed to developing links with the judiciary of our neighbours in Asia and the Pacific.  Your colleagues, myself included, Chief Justice, wish you well in your retirement.

BLACK CJ:   Thank you, Marshall J.  Mr O’Farrell, do you move?

MR O'FARRELL:   If the court please.  Your Honour, the Court began to exercise its jurisdiction on 1 February 1977 and since then it has only had two Chief Justices.  Your Honour’s tour of duty began on 1 February 1991, some 14 years after the Court’s beginning, and has now lasted 19 years.  So the office of Chief Justice, your Honour, seems to have achieved the stability perhaps of the British monarchy or even the papacy, one might think, but perhaps with a little less intervention by the paparazzi.

Today the Tasmanian profession farewells you before your retirement on 22 March – I think it is 22 March, your Honour, 2010, but it is not only as Chief Justice that you will be remembered, and you will forgive me for giving the usual potted history.  Your Honour was born in Egypt where your father was a serving officer in the Royal Airforce.  I understand that your Honour was educated in Australia, Egypt and England before returning to Australia, when in 1953 you commenced at Wesley College.  You attended Melbourne University from which you graduated in 1963.  While at university you met your wife, Margaret, and moving a little ahead, with your wife, Margaret, you have had two children, Rufus and Sarah.

At university you were the president of the Law Student Society and a member of the Students Representative Council.  On graduation you did your articles at Middleton McEacharn Shaw & Birch, which is now, I think, transmogrified into Corrs Chambers Westgarth, which you will be pleased to know remains a leading powerhouse law firm.  You were admitted to practice in March 1964 and immediately went to the Bar as a reader under Woods Lloyd.  And when I say immediately, your Honour, I just pause for a moment because after last night’s dinner no biography of your Honour would now be complete without mention of that railway journey that you took with your wife in Tasmania immediately before going to the Bar, an almost circumnavigation, your Honour, if only the train had travelled from the West Coast to Hobart.

In 1980 you were appointed Queen’s Counsel for Victoria and I am pleased to note that you were also appointed Queen’s Counsel in Tasmania in 1984.  Your Honour’s practice at the Bar was very wide.  It was a general practice and I think that you have observed, commenced in the era when colour and movement were not frowned upon at the Bar.  The cases your Honour took demonstrated a desire to help people.  Many briefs were sent back fee declined, and you have said that some of the cases you remember the best were those when you really feel that you achieved justice.

As a silk your Honour developed an enviable practice, particularly in appellate work, including leading constitutional cases.  So it was very much a welcome and deserved appointment when you took up your current mantle as Chief Justice of this Court.  I also note, your Honour, in passing, that in 1998 you were made a Companion in the Order of Australia for service to the law, to the legal profession and to the judiciary.  The Court now has some 50 Judges, and I expect that this is an inaccurate statistic, your Honour, but something in the order of 360 administrative staff.

Your Honour, as Marshall J just observed, has taken the Court from a much smaller institution to that which it is now.  Your Honour has observed that courts should be smallish, collegiate, with an idea of themselves, and while the Federal Court seems like a large institution to a vertically challenged Tasmanian barrister, the idea of maintaining collegiality is something which our profession is well familiar with and we very much cherish.  The scale of this Court no doubt has allowed it to maintain its stability and to progress with important reforms.

In all of that, your Honour, there was also a need during your Honour’s time to foster scholarship, courtesy, efficiency and many other qualities that give this Court its character, and this is the difficult task with which you were invested in 1991.  When your Honour first commenced as Chief Justice fax machines were at the forefront of communications.  Electronic media has now well and truly taken over.  The Federal Court, under your guidance, has embraced all things electronic and has pioneered the electronic lodgement of court documents.  The Court also frequently and very successfully uses video links to conduct its business.  Your Honour sits on the Court’s Information Technology Committee.

I also understand that your Honour leaves the Court with work in progress on the use of mandatory electronic lodgement.  All of these advancements are the hallmark of a truly national Court with a need to maintain communications across a very wide jurisdiction.  Efficiencies have also been achieved elsewhere.  The Court has always been very much admired, certainly by those of us fortunate to have practised in it, for its successful use of case management systems.  In your Honour’s time there have been significant milestones achieved in this area and Marshall J has already mentioned them.  I will just repeat a couple, the introduction of specialist panels in 1997, together with the docket system, which is now developed mainly in the Melbourne Registry to the “rocket docket” which was introduced in 2007.

All these achievements mark the Court as progressive and reformist, but not at the expense of justice.  Your Honour has not only successfully administered the Court’s metaphysics, you have also ensured that around Australia the Court is properly accommodated.  Perhaps the finest achievement in your time in the Court is the Federal Court buildings in Melbourne, which have created, in your Honour’s words, “a truly legal precinct”.

For us in Tasmania the most important architectural achievement in your Honour’s time is the refurbishment of this very courtroom.  Before it was remodelled, your Honour, it always used to amuse me that the court number one, as it then was, facing the other way, was very rarely used by trial judges when they came to new cases in Tasmania.  They preferred hearing room number four, which afforded the bench a good view of St David’s Park and allowed astute barristers a chance to assess their progress on the judge’s interest scale by observing whether the judge was looking within the room or gazing longingly without it.  This important design feature, for both bench and Bar, has not been lost on your Honour obviously.

It has been suggested that it would be even pleasant to lose a case in this court.  That is not a pleasure, I must confess, I have yet had, but your Honour, as a firm illustration of your Honour’s understanding of Tasmania and all things Tasmanian, including the furnishings, the woodwork, which includes our endemic and beloved Huon pine.  Tasmania is a small jurisdiction, but the Court has consistently maintained presence here and a strong relationship with the profession.  In large part that has been fostered by your Honour, but also by Northrop, Heerey and Marshall JJ.  In his welcome address to you in 1991 and echoing the sentiments just expressed by Marshall J, from what Mr Chernov said:

Mr Harper QC said that the bar regarded your appointment as one of the best and most significant of our time.  There is good reason to think that you have not disappointed the high standard that was then set for you.

Of course the Court, your Honour, is the institution, but your Honour has been at the helm for the last 19 years, I expect reminding the crew with the utmost courtesy that it is steady as she goes, while at the same time, in your Honour’s words, “constantly trimming the sails and sometimes moving the wheel a bit.”  It has been a truly remarkable voyage.  It gives me great pleasure, on behalf of the Tasmanian Bar, the Law Society of Tasmania, and indeed the whole of our profession, to thank your Honour for taking us with you on that journey and to wish you and Mrs Black the very best in your retirement.  If the court please.

BLACK CJ:   Thank you very much, Mr O’Farrell, for those very generous and elegant remarks, and I thank you too, Marshall J for your kind observations.  I appreciate them very much indeed.  And thank you all for your presence here at this ceremonial sitting.  The court is, of course, especially honoured by the presence of his Excellency the Governor of Tasmania and former Chief Justice the Honourable Peter Underwood AC, and the presence of Mrs Frances Underwood.

We are much honoured by the presence on the bench with us, as our guest (in accordance with the custom in this State and in one other state), of the Chief Justice of Tasmania.  We are very pleased too that our former colleague, the Honourable Peter Heerey, is also on the bench with us.  As well, we are greatly honoured, and I am personally delighted, by the presence in the court of the Honourable William Cox, the former Governor of Tasmania, a former Chief Justice and a friend of many years; by the presence of members of the Supreme Court of Tasmania, and Benjamin J of the Family Court, the Honourable Raymond Groom and many other distinguished members of the profession and people in public life in this state.

I am also moved by the presence at the bar table of so many distinguished members of the profession in Tasmania.  They include the Hon Michael Hodgman QC, I hope no one will mind if I single him out – I know he will not – but if it were not for his tenacious advocacy in the 1980s we probably would not be sitting in this fine building.  And I would also like to acknowledge Mr Duncan Kerr MP SC, who for some time during my period of office, acted as Attorney General and has contributed greatly to our public life.  I acknowledge too Mr Sealy SC, Solicitor General for Tasmania; it is very good to see you too.

I begin by placing on public record my gratitude to those who have served our Court in Tasmania and who have done so, so very well, during my time as Chief Justice.  We greatly value all our staff; every one of them is important.  But I suppose hierarchies do tend to occupy a place in the judicial mind, so I recognise first the work of our District Registrars.  There have been three during my time:  Janet Cooper, who alas passed away; Mr Alan Parrott; and more recently, but no longer, Mrs Sia Lagos.  Our present staff, a small but wonderful group of people, Mrs Merrilyn Evans, the Librarian, Mrs Sue Gourlay, Mrs Helen Healy, Mr Michael McKenna and Mrs Joann Geltner, client service officers, who have served the Court very well for a long time.

Indeed, Mrs Gourlay has been with us for over 10 years.  I also thank Judy Taylor, our eServices Officer, Mr Ian Roberts, our former Director of Court Services, a service with great distinction for over 10 years, and I thank him.  Mrs Evans has maintained our library here on a part-time basis.  We fought to retain this library and with her assistance we kept it.  Like the true librarian that she is she has saved many fine historical volumes from destruction.  They include, to my own great delight, the very first volume of the Commonwealth Gazette, which commences on page 1, with the Proclamation of our Commonwealth on 1 January 1901.  The volume that she saved contains other instruments by which the first Government of the Commonwealth was established and the first Parliament elected and convened.  It is here in my chambers in Hobart where I suppose I have to accept it will need to remain.

Mrs Evans has recently been good enough to write a short history of this building, about which we spoke at the ceremonial sitting in Hobart on 6 August 2008.  I have, on another occasion – indeed, on two other occasions, because he had two farewells – expressed my thanks to Heerey J for the service he has given to the Federal Court.  I do so again specifically in relation to Tasmania.  And also I should thank Mrs Heerey, who has supported him enormously in that work, which does, it has to be said, involve travel and being away from home, and I would like to recognise that contribution.

I would also like to recognise the contribution of Marshall J, who has assisted Heerey J in his work here, and is now responsible with Middleton J for that work, and likewise Mrs Marshall, who supports him consistently in that endeavour.  It is a particular pleasure to have Marshall J sitting with me on this occasion.  He and I were retained in some very important and difficult – indeed rather gritty – cases together when we were at the Bar, and we have served together as Judges of this Court for a long time.  I know that he too is strongly committed to the work of the Federal Court in Tasmania, as is Middleton J, who is unfortunately unable to be with us today.

They are committed, I know, to maintaining the Court’s reputation for the speedy and efficient disposition of its cases in this registry and I am sure that will continue under the new Chief Justice and with their strong support.  I might mention to those Tasmanians – and I think that’s probably all Tasmanians – who have a sense of connection in history, that Middleton J was one of my readers and, as some of you will know, that provides other links to the past.  I am particularly pleased that we are joined by members of the profession with whom I have, myself, worked when I was at the Bar and with whom I appeared in cases on the mainland and here in Hobart, and also by representatives of the Academy with whom I have had the pleasure of being associated during my time.

One of the great privileges of serving as a Judge of the Federal Court is that our judicial work takes us to all parts of Australia.  As Chief Justice the administrative work of the Court also requires me to be in each of the capital cities.  Sitting in this federal courthouse in Davey Street, Hobart, part of which – as you can see through the door indeed – is some 170 years old, gives one a strong sense of the rich history of this State’s legal and constitutional history.  Moreover, the presence of the Chief Justice of Tasmania and two former Chief Justices, and other members of the Supreme Court, reminds us of the rich legal history and the rich legal inheritance that Tasmanians have and which, as citizens of the Commonwealth, they share with us all.

It is the remarkable fact that, as we look out from where we sit in Court One to St David’s Park and then to the Supreme Court of Tasmania in Salamanca Place, we look to a Court that will celebrate its 200th anniversary in just 14 years.  That makes the Supreme Court of Tasmania, viewed as a continuing institution, which indeed it is, one of the oldest democratic institutions of its type in the world.  It is a distinction that it almost shares with the Supreme Court of New South Wales, but as I need no reminding, after I made the error some years ago, the important difference is that the Supreme Court of Tasmania is relevantly older, though not much, but certainly, relevantly older.

As a federal judge I am also especially conscious that the architect of our Constitution and particularly Chapter III was that great Tasmanian, Andrew Inglis Clark, for some time a member of the Supreme Court.  You may be interested to know, ladies and gentlemen, that two days ago in Sydney I addressed a distinguished audience of American lawyers, including a Justice of the Supreme Court of the United States, about Andrew Inglis Clark’s role in the development of our Constitution.  The address occurred in interesting circumstances.  It was during a tour that I was conducting (which is something that I actually quite like doing) of our Court in Sydney and it was prompted by the fact that outside one of our Sydney courtrooms, one that I had some hand in, and on a wall overlooking Farm Cove where European settlement began, there hangs a painting that we commissioned.

The painting records a moment in our constitutional history, and the part that Andrew Inglis Clark played in it.  As Tasmanians know, it involved the “messing” of Andrew Inglis Clark’s vision for Chapter III of the Constitution that occurred during the voyage of the Lucinda at Easter 1891.  The painting that I commissioned and which hangs in view of the place where the events happened shows Andrew Inglis Clark in a dinghy being rowed from Man O’ War Steps to board the Lucinda, there to begin the task of restoring the draft of Chapter III to its original superb form, a task ultimately successful to the great benefit of Australia.  Indeed, some commentators have said that the provisions of Chapter III, as explained by the High Court, are amongst the most powerful constitutional guarantees of the rule of the law to be found in any constitution anywhere, and recent jurisprudence would confirm that view.

These and other aspects of our rich shared heritage come to mind as I sit here in Tasmania for the last time.  It also gives me great satisfaction to have my final sitting in Tasmania in this courtroom.  Court One in Hobart reflects, as we intended that it should, the Court’s commitment to provide in Tasmania and in Hobart, the capital, a principal courtroom of the highest quality.  As you would all recognise, the materials of which the courtroom is constructed are quintessentially Tasmanian, and of course deliberately so.  They are fine endemic timbers: Tasmanian oak; celery top; and Huon pine.  As I said at the opening of this courtroom in August 2008, the extensive use of bird's eye Huon pine is, I believe, unique in any public building in the world.  It may be taken as symbolising architecturally the excellence for which we all strive, judges and the profession alike.

I ventured to suggest on that occasion, and I maintain it again now, that the architects and the craftsmen have created one of the most beautiful smaller courtrooms in this country and it sits in one of the most beautiful urban settings in this country.  The Court is very proud of that achievement and once again I thank all those craftspeople and the architects who brought it about.

I conclude with two further expressions of thanks.  The first is to the Bar and solicitors of this State and their respective societies represented here today.  You have maintained the high standards of excellence and independence – especially independence, as you cannot have one without the other – that we expect, but which no one should ever take for granted.  Thank you all for your great assistance to the work of our Court and thus to the cause of justice according to law, and for having done so over the many years that I have sat here from time to time as a judge.

I will thank my personal staff and other staff at my final sitting, which will, you will not be surprised to learn, take place in Melbourne, but I do record here the special assistance given by Mrs Helen Healy and Mr Graham Healey – no relation – in organising these farewell events.

The other expression of thanks is to my spouse, Margaret Black.  I would like to say here in Hobart that if there have been achievements during my time as Chief Justice, as you have been kind enough to suggest, they would not have occurred without her.

Adjourn the court.

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