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H I I I H I H I I I I H I H Of What is Past, or Passing, or to Come Speech by the Hon Justice Michael Kirby A. C., C.M.G ., President of the Court ofAppeal at the 1993 Bench & Bar I Dinner at which he was the guest of honour. "Once out of nature I shall never take My bodily form from any natural thing, Asprey kept, hanging on the wall of his chambers, behind the I But such a form as Grecian goldsmiths make chair at his desk, the famous cartoon of E Smith. Next to that Of hammered gold and gold enamelling cartoon was hanging a mirror. Looking in the mirror "it was ' To keep a drowsy Emperor awake; natural to see oneself as a reflection of the great English Or set upon a golden bough to sing counsel." To lords and ladies of Byzantium The President of the Incorporated Law Institute (as it Of what is past, or passing, or to come." was called) was Norman Cowper, later to be knighted. Reg WBYeats Downing was the State Attorney-General. The most senior I silks were H V Evatt himself, his brother Clive and C A WHAT IS PAST Hardwick. Amongst the senior juniors were those memorable figures Wilf Sheppard, Walter Gee, Bertie Wright and On an occasion such as this, and in this common room, Humphrey Henchman - the last of whom I saw, evergreen, in I it is inevitable that an affliction of nostalgia will take the mind this place but a month ago. back through the lost years. The spirits of these advocates are in this room with us It is thirty-five years since my first encounter with our tonight. They lived and laughed here, just as we do now. They profession. It was in 1958 that I began my articles of clerkship. told the tales of their triumphs. They were ribbed - not always H The Queen was in the sixth year of her reign. Mr Menzies was gently - about their embarrassing moments. They were mighty the Prime Minister. Sir Arthur Fadden figures of my impressionable youth. had just retired as his Deputy. In the wake I of the successful struggle against the anti- At that time there were 430 members of communism referendum, the Democratic the Bar Association. Of them 51 enjoyed Labor Party had been formed. It helped the commission as HerMajesty's Counsel. snatch victory from the Australian Labor The constitution and the law looked very H Party in the Federal Election in November sure and stable indeed. that year. Sir Garfield Barwick was elected Member for Parramatta. As a tribute to Sixteen years passed before my first I his unique distinction as a barrister, he judicial appointment was announced. This went straight to the office of Federal occurred in December 1974 when I was Attorney-General. appointed a Deputy President of the The High Court of Australia Australian Conciliation and Arbitration I comprised Chief Justice Dixon and Commission. Alas, I must acknowledge Justices McTiernan, Fullagar, Kitto, that this is now nearly 20 years in the past. Taylor, Menzies and Windeyer. In the The Governor-Generalship had just Supreme Court, Sir Kenneth Street was changed from Sir Paul Hasluck to Sir I nearing the end of his time as Chief Justice. John Kerr. The Governor of this State Within two years he would retire to be was Sir Roden Cutler VC. Gough replaced by the exhausted Evatt. Sir Whitlam was Prime Minister. Of the I William Owen was the Senior Puisne High Court, Barwick was at the height of Judge. There were twenty-one judges of the Supreme Court his powers as Chief Justice. The latest member appointed to at that time. The youngest of them were the redoubtable the Court was Anthony Mason. There was an empty seat to be Kenneth Manning, the bucolic "Barney" Collins, that filled. Shortly, it was to be occupied by Justice Jacobs, the H gentleman Rex Chambers and the multi-talented Rae Else- third President of the Court of Appeal. That court had been Mitchell. established with sharp recriminations and much bitterness in Judge Lloyd was the Chairman of the District Court 1965. I Judges. Theo Conybeare presided in the Workers' In the Supreme Court, Sir John Kerr was soon to be Compensation Commission. succeeded by Sir Laurence Street - third Chief Justice of that At the head of the Bar Association was Bruce Macfarlan name. There were 37 judges. The latest appointments to the QC. His able lieutenant was.Nigel Bowen QC. The leaders of Court were Ian Sheppard, Hal Wootten and that fine teacher of I the Bar were towering figures of my youth - Kerrigan, Meares many banisters, Harold Glass. and Asprey. A F Mason was a younger member of the Bar Jim Staunton, still in office, had just begun his long and Council and the newest recruit to it was D A Yeldham. distinguished leadership of the District Court. Chris I We have it on Chief Justice Mason's authority that Ken Larigsworth was Chairman of the Compensation Commission. Of all the judges who were serving at that time, day by busy day, nine only remain in judicial office today, together 1. See A F Mason, unpublished address to the District Court with myself. They are Chief Justice Mason of the High Court; I Judges' Conference, I May 1992, 4. Justice Sheppard now of the Federal Court; Justices Evatt and NSW Bar Association Bar News 1993 Edition - 31 I Gaudron (then, with me, in the Arbitration Commission) now to assure me of heartfelt sympathy in my hour of need. I did respectively President of the Law Reform Commission and not know what they were talking about. Surely Justice Justice of the High Court. Dennis Mahoney, now my colleague Meagher's observations were merely the public exchange of U in the Court of Appeal. John Cahill still sits on the Industrial pleasantries between colleagues sharing, with the profession, Commission, today as Vice-President. Judges Staunton and their inner thoughts. Harry Bell still grace the District Court. Frank McGrath, For my part, I knew that there was no malice in Justice another teacher, presides in the Compensation Court. Nine Meagher's words. My reading is wide enough to enable me to LU only are left. The rest of our judicial company at that time have recognise a true personal denunciation when I see one. moved on - such is the cycle of the law. Take these words of Justice Rehnquist, joined by Chief In the Bar Association in 1974 Tom Hughes QC was Justice Burger in the Supreme Court of the United States in I President and in that capacity welcomed me to judicial office United Steelworkers of America v Webber'. in the Arbitration Commission. It was in that speech that he By a tour deforce reminiscent not ofjurists such as allegedly claimed that I was well known for my "urbanity". Hale, Holmes and Hughes but of escape artists such as The shorthand reporter, who rarely erred, still swears (as she Houdini, the Court eludes clear statutory language, Li recorded) that he said "vanity". Tom Hughes's deputies were legislative history and uniform precedent..." Doug McGregor and Phillip Powell. The latest members of the Bar Council were Roger Court, Barry Toomey and myself. Or take Justice Rehnquist, again joined by Chief Justice Li The President of the Law Society was Alan Loxton. The most Burger but also by Justice O'Connor in Florida v Royer' senior silks of the time were still Clive Evatt and Hardwick. The most recently appointed silk was one M H McHugh QC. "The plurality's meandering opinion contains in it a But do you remember Sid Webb? Sir Jack Cassidy of little something for everyone ... Indeed, in both manner Li champagne charm? The redoubtable Jack Smyth? And that and tone, the opinion brings to mind the old nursery civilised and graceful man, Marcel Pile? The senior juniors rhyme: 'The king ofFrance - with 40,000 men - marched included Wilf Sheppard. And Harry May and Ivan Roberts up the hill - and then marched back again'. The opinion were also there. Their spirits too are in this room with us nonetheless, in my view, betrays a mind-set more useful I tonight. They are here to remind us of our brief journey to those who officiate at skuffieboard games, primarily through this profession which gives so much and to which we concerned with which particular square the disc has must also make returns. landed on, than to those who are seeking to administer L When I first took up judicial appointment in 1974 there a system ofjustice were 590 members of the Bar of New South Wales. Of them, 68 were Queen's Counsel. Today there are 1700 members of Within weeks of writing these words, Justice Rehnquist the Bar and 200 silks. Inevitably, with the expansion of the was elevated to become his nation's Chief Justice. His strong k Bar, there have been changes. But many of the traditions of words were rewarded with a marvellous judicial crown. When courage, honour and comradeship endure, akin to those enjoyed I measure Justice Meagher's words against such vituperation, by soldiers under fire. May it continue to be so. I realise once again how sweet is my brother's disposition. I I also know Justice Meagher's writing well enough to be OR PASSING able to recognise, without hesitation, when he is straying from his natural disposition into a few gently chosen words of Of course, in the daily life of the law there are inevitable criticism. That was not so in Videski, as I hastened to reassure E crises that blow up.
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