, . 7~

"CEREMONY OF FAREWELL TO THE HONOURABLE SIR LAURENCE

STREET, KCMG UPON THE oeASSION OF HIS RETIREMENT AS

CHIEF JUSTICE OF THE SUPREME COURT OF NEW SOUTH \,"ALE5"

Tuesday 1 November· 1988 .------

IN THE SUPREME COURT) ) OF 1} ) BANCO COURT ) BEFORE: STREET, CJ JUDGES OF THE SUPREME COURT

Tuesday 1 November 1988

CEREMONY OF FAREWELL TO

THE HONOURABLE SIR KCMG

UPON THE OCCASION OF HIS RETIREMENT

AS CHIEF JUSTICE OF THE SUPREME COURT OF NEW SOUTH WALES

I will ask the president of the Court of Appeal to STREET CJ: preside at this sitting this morning. We gather here in this BancO Court under the KIRBY P: watchful eyes of the Chief Justices of the past. The crimson they wore. They symbolise the link of this robes we wear, Court to an unbroken judicial tradition of eight centuries. No

Judge who sits on the bench in this courtroom can escape the

searching eyes of Chief Justice Stephen or the austere glance No practitioner, surrounded by of Chief Justice Jordan. can forget the continuity of public service which it history, is the privilege of lawyers to offer. is by ancient tradition All saints' Today, 1 November, It was the day upon which for centuries the Saints, known Day. There may be few saints in this and unknown, were celebrated. Justice is not a cloistered virtue. room on this occasion. But there is surely gathered here today one of the most

remarkable assemblies of lawyers and judges ever to come

together in this State, indeed in this country. We are here,

with one mind, to pay a heart-felt tribute to the public

- 1 - I WeWe areare herehere toto serviceservice ofof SirSir LaurenceLaurence andand LadyLady Street.Street. uponupon thethe preciousprecious stability,stability, reflect,reflect, everever soso briefly,briefly, I!, institutions of law,law, continuitycontinuity andand yet changechange of our institutions

symbolisedsymbolised by thisthis ceremony.ceremony. because it is II saysay thatthat thisthis isis aa remarkableremarkable assembly because it is the Chief Justice of I rare,rare, inin thethe one courtroom, toto have the Sir Garfield and his twotwo distinguished predecessors, Sir Garfield Sir was himself aa Barwick and Sir . Sir Anthony InIn thatthat sensesense he isis Judge and Judge of Appeal of this Court. the High Court who one of us. We have also thethe twotwo Justices of the High Court who i the Judges of this first refined theirtheir analytic skills before the Judges of this was also at one time Court. One of them,them, Sir , was also at one time and Judges of the one of us. We also have thethe Chief Justice and Judges of the I Sir was also once a Federal Court of Australia. sir Nigel He sat with Sir Laurence Street in the Judge of this Court. He sat with Sir I Joining us today are also the former Chief Court of Appeal. Joining us today are also of the D~visions Justice, Sir John Kerr and the surviving heads of the I the Chief Justice1s of the Supreme Court who served during the Chief Justice1s a hundred judicial tenure. They symbolize a company of nearly a hundred judicial Street in his long colleagues who have sat with Sir Laurence Street in his long The heads of jurisdiction of service as a Judge of this Court. The heads in this room, with the other Courts of the State come together in this room, with elected leaders and other representatives of the community, to say farewell members of the legal profession, old and new, to say farewell I to the Chief Justice. Justice and the Most importantly, the family of the Chief Justice and the They make great sacrifices. families of the judges are here. They make The lives of judges l The lives of publicpUblic people are not easy. The lives The jon. The families are lonely and demanding of time and attention.at tent

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~ c.,_•.•• • this watershed in the life of the Court as the share with us this watershed in the life of the Court as the fourteenth Chief Justice concludes his service.

Two hundred years ago exactly, the infant colony was A criminal struggling for survival, not far from this place. court was necessary within days of the arrival. A civil court I of sorts had begun to administer justice four months later. The record showsshoWS that Judge Advocate David Collins was writing,

at this very time, to the Under Secretary for Colonies, Nepean,

about the difficulties of the administration of justice. He He sent was asking (surprisingly enough) for more resources. urgent request for a copy of Blackstone's Reports, for copy an urgent request for a copy of Blackstone's Reports, for copy

of "whatever Acts of Parliament you may think necessary" and

most earnestly of all "for any author that treats on costs". I• From the outset of the administration of justice in Australia, things. (Historical costs loomed large in the priority of Records of New South Wales, vall part 2, 1982, , 210).

Some things do not change. A hundred years ago the debates of The Bulletin were

termination of Privy council appeals and the about the termination of Privy council appeals and the establishment of a local Court of Appeal which would be more particularly those many under available to Australians

sentence of death. (See The Bulletin,13 October 1888, 4

"Wanted -A- A Court of Appeal"). The was

to come within fifteen years. The establishment of the Court The abolition of Privy council appeals I of Appeal took eighty. took almost exactly a century. Sometimes, in the law, we do I not rush things. " I have mentioned these matters of history because history

- 3 - History isis thethe keykey toto ceremony isis about.about. History is whatwhat thisthis ceremony is of our Chief the motive force ofof thethe publicpublic lifelife of our Chief the motive force understandingunderstanding it be again recorded, Everyone here knowS,knows, butbut letlet it be again recorded, Everyone here Justice.Justice. They alsoalso Justice. They is the son and grandsongrandson ofof aa ChiefChief Justice. is the son and thatthat hehe the last central seat which he nownow occupiesoccupies forfor the last seat which he inin thethe central satsat the retirement It was remarked by Sir WilliamWilliam owen,Owen, onon the retirement remarked by Sir time.time. It was thirty years ago: of his fatherfather justjust over thirty years ago: of his the I think, has itit happenedhappened inin the I think, has have "Never"Never before,before, world that fatherfather andand sonson have world that and in English-speaking Bench atat thethe samesame timetime and in the same Bench son has satsat on the same Chief Justice. TheThe son has turn hashas becomebecome Chief tradition". turn a greatgreat familyfamily tradition". worthily upheld a worthily v. (1959) 5959 SR (NSW)(NSWl v. (1959) itit isis been equalled, former recordrecord has ever been equalled, If thethe former appointment the achievement which sirSir Laurence1sLaurence1s appointment that the achievement unlikely that world. InIn will ever be paralleled inin thethe commoncommon lawlaw world. ever be paralleled signalled, will a But it isis soso remarkableremarkable a never. But it one can rarely say never. the law, one The chance considerations phenomenon as to suggest uniqueness. phenomenon of jUdges was the appointment and elevation of judges was the appointment which affect - lamenting that mentioned by Sir in his farewell - lamenting that Sir Owen Dixon mentioned by High Court. See Jordan and Cuss were never appointed to the High Court. See Cussenen were never Jordan and of the Therefore, with all the chances of the 110 CLR v, xi. Therefore, (1963-4) 110 the land which has disdained an aristocracy, the which has disdained in a land world and It may be remarkable. It Chief Justice's elevation was the more remarkable. Justice's elevation Chief capacities as a attributed to the recognition of his shining capacities as a to the recognition attributed instance. judge of first instance. energetic and imaginative creative, energetic him to appear before Every practitioner who had the privilege to appear before him Every practitioner an indelible memory in those far off days, will bear to the end an indelible memory off days, will i in those far He was He was swift and efficient. He was swift of his performance. of He was equalled by none in his He was equalled painstaking. courteouscourteoUs and painstaking. \ I - .-

I~., _ ! • \ I i capacity to deliver an ex tempore judgment which marshalled the

facts, expounded the law and reached conclusions which were generally accepted by the parties or upheld on appeal.

His talents, as well as his public service in many other

fields of endeavour, recommended him to the Government of the day to succeed Sir John Kerr on his appointment as Governor

General. To these qualifications must be added the grace with which he was able to carryon the public and ceremonial

Those skills, often under valued in our , functions of a judge. , deprecative country, are important to us, lawyers. We are more

conscious than most of the importance of institutions and the need for unobtrusive ceremony as a support for the rule of law.

Yet to talk of these externalities does insufficient ; tribute to the intellectual contribution of the Chief Justice.

It is recorded in the pages of the law reports, which for 75

years of this century provide a published diary of the Street

family. There are many notable contributions by Sir Laurence > The most often spoken of is his innovative in those pages. He was determined that development of the declaratory order. the remedies offered by the courts should be kept bright and in the footsteps of great shining. In this sense he trod He realized the vital importance of procedure and forebears. I' " ' in the way of of cutting through impediments which stood the people. By the bringing the law to the benefit of I development of declaratory relief he was ahead of his time. He development 11 He ! : life and relevance to Equity, his first love. He , ' [ assured new ~ provided remedies of great utility to the business community lead has now been followed i' and thus to the economy. His i f i - 5 - I !,r f ! - ~

Even in criminal cases,cases, declarationsdeclarations ofof throughoutthroughout Australia.Australia. Even in criminal 1 II rightright areare nownow sometimessometimes made.made. Justice, hishis principalprincipal II uponUpon hishis elevationelevation toto ChiefChief Justice, :j" the Court have heen in thethe CourtCourt ·ofof CriminalCriminal contributionscontributions ofof the Court have been in presided. ItIt is,is, asas everyevery II Appeal,Appeal, overover whichwhich hehe tirelesslytirelessly presided. • it can attest,attest, aa heavyheavy responsibility,responsibility, III, JudgeJudge whowho hashas satsat inin it can il it does with the liberty ofof fellowfellow citizens.citizens. TheThe i! dealingdealing asas it does with the liberty of criminal law and chiefChief Justice'sJustice's masterymastery ofof thethe intricaciesintricacies of criminal law and HisHis capacitycapacity toto cutcut procedureprocedure soonsoon dominateddominated thatthat Court.Court. il , ~nd to the heart of the throughthrough massesmasses ofof detaildetail ~nd toto gogo directlydirectly to the heart of the III' and Bar. Ii I problemproblem commandedcommanded thethe admirationadmiration ofof thethe BenchBench and Bar. li But with Sir ,Herron, andand laterlater SirSir JohnJohn Kerr,Kerr, thethe L But with Sir Leslie I changed. I functionfunction ofof thethe ChiefChief Justice,Justice, almostalmost imperceptibly,imperceptibly, changed. i in a court suchsuch asas thisthis mustmust be,be, aboveabove , • A Chief JusticeJustice todaytoday in a court the precious resourcesresources ofof judicialjudicial all, aa manager of the precious I cope with thethe vastly increasingincreasing personnel. He or she must cope with The demands upon thethe judiciaryjudiciary toto serve amount of litigation.litigation. The demands upon ~ The ineviinevitabletable I~ inin commissionsCommissions of Inquiry and Tribunals. ~ of capacity and tensions which arise between high-minded people of capacity and I these necessities put great pressure determination. All of these necessities Yet he faced them with calm and a upon Sir Laurence Street. Yet he faced them the forebears who had done so determination to be worthy of the forebears of the I His attention to the many committees of the well before him. His attention I, His uncanny ability to remember the names ( Court must be noted.nated. His uncanny ability to Court, high and low. His attentiveness I of the officers of the Court, high and loW. ! His the numberless requests of his judicial colleagues. His to the numberless requests the community. ·to t forthright representation of his views toto the community, -to r Even recently, inin Ministers and toto Parliament, when necessary. Even !, ! ~ I -- 6 - 6 - (' 1 ,! t ~t .',c.r' ~"

; -t- judgments, when his time for departuredeparTure was approaching, he spoke out boldly. He warned againST the dangers of enlarged

police discretions. See Sibuse Pty Ltd v Shaw (1988)(19BB) NSWJB 74

(CA). He cautioned about the perils of conscripting judges to

statutory and nonjudicial bodies. See Lisafa Holdings pty Ltd

v Commissioner of Police and Drs (19BB) NSWJB 167 (CCA). Interestingly, in this last comment, he recurred to something j: said by Sir Phillip Street in his farewell. See (1933) 33 SR

(NSW) v, viii. He tirelessly encouraged the moves towards a

national court system and legal profession. See Bankinvest AG

v Seabrook & OrsDrs (19BB)(1988) NSWJB 1B4184 (CAl.(CA). Yesterday, in his last

pUblished judgment he held, boldly, that, in certain • circumstances, a transsexual was not a "male person" for the purpose of the Crimes Act 1900, s B1A. See Regina v Lee ii' 1-' Harris, unreported, CCA, 31 October 198B. I' The Chief Justice has been, to the last, a special

mixture of traditionalism and innovation. Of conservation and

of radicalism. In this sense, he is the product of his

distinguished parents. But he is also a reflection of the very

tradition of our law which marries stability and creativity in

a brilliant way.

At the Chief Justice's side throughout his service has

been his wife, Susan Street. Effortlessly, she has earned the ,! . f admiration and affection of all of the Judges of the Court and of their families, of practitioners and of the community. t She was always there at Court functions, as she is today. Loyal. Attentive.AttentiVe. Sincere. She took up her own career in ( hospital administration. She earned a degree and served on f many bodies. Her fine qualities were soon recognised by governments of different political persuasions. She is now, in

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t.':1 .,,.. "'-..:.;.:...... ( r ~ -

the Eastern AreaArea HealthHealth the chairpersonchairperson ofof the Eastern herher ownown right,right, the and r.ady Street And now, the childrenchildren ofof SirSir LaurenceLaurence and Lady Street service.Service. And now, the service in the promise a continuation ofof thethe traditiontradition ofof highhigh service in the promise a continuation

law.law. he had been At his farewell, Sir OwenOwen DixonDixon recordedrecorded thatthat he had been At his farewell, Sir enough, he would go that, if he stayedstayed onon thethe BenchBench longlong enough, he would go • warnedwarned that, if he He offered thisthis asas oneone 110110 CLRCLR v,v, xi)xi) .. He offered mad.mad. SeeSee (1963-4(1963-4 decision to retire explanation for his apparentlyapparently headstrongheadstrong decision to retire explanation for his He stated: "I"I amam notnot oneone the age ofof seventy-eight.seventy-eight. He stated: early,early, atat the age you get the j of those who subscribe toto thethe viewview thatthat thethe olderolder you get the of those who subscribe I believe inin youngyoung thinkthink thatthat isis wrong.wrong. I believe better you get. II x). everything".everything" . (See(See ibid,ibid, x). retiring Chief. am sure that thethe samesame isis truetrue of our retiring Chief. II am sure that usually, into old it Chief Justices have retired, usually, into old In thethe past, Chief they acknowledge the recognition. finally,finally, they acknowledge the recognition, age. Mournfully, retires, a man But Chief Justice Street retires, a man that they are old. that he will offer further I am confident that he will ever youthful. I am Fortunate are we, the beneficiaries, service to the community.

of this most talented family. And Byron cautioned that all farewells should be sudden. And Byron cautioned that all the Masters and so, on behalf of the iJudges. past and present, the Masters and so, on behalf of the I do so with affection the Court. I bid farewell. I do officers of the Court. Street. and gratitude _ to Sir ;Laurence~Laurence Street and Lady street. and gratitude - to Sir "When to the sessions of sweet silent thoughts "When to the ses~ions of [You] . [You] of things past". f ....., summonsummon up remembrance of things past". of your many that this public aCknowledgmentacknowledgment of your many II hope that this truly remarkable contributions will wa'rm thethe recollections of a truly remarkable t contributions will wa'rm your colleagues on association with this Supremesupreme Court and with your colleagues on r association with this it.it. I The Attorney General? I -- B -B- f ,J i t ::''1 .T' r r