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1030 What is Past, or Passing, or to Come ____ 10f What is Past, or Passing, or to Come ______ ~ .... tcllbyby the HOI!HOIl Justice Michael Kirby A.C .. C.M.G., President afthealthe CaUTIo!Caurlo! Appeal afat the 1993 BenchBelich & Bar ',lrlUlerat which he was the guest afhonour.o/honour. ¥. ,!i}fi "Once 0111011I of nature I shall never raketake ~ Mybodi1yjormfrom~f bodilyfarm/rom anyany. natural (hing,rh~lIg. Asprey kept, hanging on the wall of his chambers. behind the B ~f slIcllslIch ajormalarm as Grecian goldsmithsgoldsnllfhs make chair at his desk. the famous cartoon of FE Smith. Next to that dfhammered 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 bOllghbough to sing counsel. "[ To lords and ladies of ByzantiumByz.antium The President of the Incorporated Law Institute (as it O/wlw{OfwiwI is past.past, or passing. or to come." was called) was NormanNonnan Cowper, later to be knighted. Reg WBW B Yeats Downing was the State Auomey~General. The most senior silks were HVH V Evatt himself, his brother CliveCJive and CAC A : ....UTI< 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.room, Humphrey Henchman - the lastofwhom 1I saw, evergreen, in 'ldsinevitableitisineviw,blethatthat an affliction of nostalgia will take the mind this place but a month ago. back through lheme 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,justas we do now. They ;~::~,~:::,{profession... ,~Itl:w:,a~;s:It was :i~n;in 195819.58 that I began m~my articles of cle~kship.clerkship. told the tales of their triumphs. They were ribbed - notnOl always ",.'TheQueen was in the sixthSixth yearofherrclgn.yearofherreign. Mr MenZIesMenzies was gently - about their embarrassing moments. They were mighty ": !he Prime Minister. Sir Arthur Fadden figures of my impressionable youth. I;::lhadjustretirectashis Deputy.. In the wake ".:-Ofthe successful struggIe against the anti­ At that time there were 430 members of 'c'communism referendum, the Democratic the Bar Association. Of them 51 enjoyed :/.Labor Party had been formed. It helped thc-commthe-comm ission as Her Majesty's Counsel. ~i;~~snatchvictoryfrom the AUStralian Labor TIle constitution and the law looked very ;~:tPartyinthe Federal Election in November sure and stable indeed. -~:;~~,;;~th;";~~~~I~, that year. SirGarfield Barwick was elected Member for Parramatta. As a tribute to Sixteen years passed before my first his unique distinction as a barrister.bamster, 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 comprised Chief Justice Dixon and Commission. Alas.Alas, I must acknowledge Justices McTiernan, Fullagar,Fullagar. Kitto.Kitto, that this is now nearly 20 years in the past. Taylor, Menzies and Windeyer. In the The Governor~GeneralshipGovernor-Generalship had just ' ...•Supreme "'"'''' Court, Sir Kenneth Street was changed from Sir Paul Hasluck to Sir nearing theend ofhis time as Chief Justice. John KelT.Kerr. The Governor of this State Within two years he would retire to be was Sir Roden Cutler Vc. Gough replaced by the eXhaustedexhausted Evatt. Sir Whitlam was Prime Minister. Of the William Owen was the Senior Puisne High Court.Court, BarwickBanvick was at the height of Judge.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 fined.filled. Shortly.Shortly, it was to be occupied by Justice Jacobs, the gentleman Rex Chambers and the multi~talentedmulti-talented Rae Else·Else­ third President of the Court of Appeal. That court had been Mitchell. established with sharp recriminations and much bitterness in JudgeJUdge Lloyd was the ChairmanChainnan of the District Court 1965. Judges.JUdges. TheaTheo 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 Atthe 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 teacherof titeBarweretheBarwere towering figures of my youth - Kerrigan.Kerrigan, Meares many banisters.banisters, Harold Glass. and Asprey. AAF 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 DAD A Yeldham. distinguished leadership of the District Court.Coun. Chris We have it on Chief Justice Mason's authority that Ken Langsworth was Chainnan of the Compensation Commission. Of all the judges who were serving at that time.time, day by busy day, nine only remain in judicial office today, together SeeSec AAF F Mason. unpUblished address 10to the District Court with myself. They arcare Chief Ju.-;ticeJU.-;tice Mason of the High Court: Jutlges·Jutlges' Conference. I May 1992.4. Justice Sheppard now ufthe feller:!!feuer:!l Court Justices Evatt ami NSW Bar ASSllCi:llion Bar New~ 19\}319\)3 EJitinn - 31 d~I~;:I~e:~;;w;ii:~th,~;m,:e,n(then, with me, in the Arbitration Commission) now to assure me of heartfelt sympathy in my hour of need. I did ,;;,~'vcIY President of the Law Reform Commission and not know what they were talking about. Surely Justice ~ofthcHigll.' ~fthcHigh Court. Dennis Mahoney, now mycolJeague Meagher's observations were merely the public exchange of '~~ourt of Appeal. John Cahill still sits on the Industrial pleasantries between colleagues sharing, with the protcssion. minission• today as Vice-PresidentVice-~re~ident Judges Staunton and their inner thoughts.thoughts, , Bell still grace the DistrictDlstnct Court. Frank McGrath, For my part. 1 knew that there was no malice in Justice "teaene:r.:( teacher. presides in the Compensation Court. Nine Meagher's words. My reading is wide enough toenable me to arc left. The restrestor of our judicial company at that time have recognise a true personal denunciation when I see one. :d on _~ such is the cycle of the law. Take these words of Justice Rehnquist, joinedjOined by Chief In the Bar Association in 1974\974 Tom Hughes QC was Justice Burger in the Supreme Court of the United States in ",~I~;b~~t~in~~thatnt and in that capacity welcomed me to judicial office United Steelworkers of America v Webber.Webber . "It: rbitration Commission. It was in that speech that he ..... Bya tour de force reminiscent not ofjurists suchSitch as :ly claimed that I was well known for my "urbanity", Hale.Hale, Holmes and Hughes bittbllt of escape artists Sitchsuch as ,rthand reporter, who rarely erred, still swears (as she Houdini,Houdini. the Court eludes dearclear statutory language, ... :d) that he said "vanity". Tom Hughes's deputies were legislative history and uniformulliform precedent ..."."" 2:::!~';cGregor and Phillip Powell. The latest members of Council were Roger Court, Barry Toomey and myself. Or take Justice Rehnquist, again joined by Chief Justice ~ sidcnt of the Law Society was Alan Loxton. The most Burger but also by Justice O'Connor in Florida v Royer': I(silks of the time were still Clive Evatt and Hardwick. ,most",cc"tlymost recently appointed silk was Oneone M H McHugh QC. "The plurality's meandering opinion containscOlltaills inill it a do you remember Sid Webb? Sir Jack Cassidy of little something for everyone ... Indeed. In both manner agne chano? The redoubtable Jack Smyth? And that and tone,tone. the opinion brinss 10to mind the old nurserylIursery ised and graceful man, Marcel Pile? The senior juniors rhyme: 'The king ofFrance - with 40,00040.000 men -marched :dcd Wilf Sheppard. And Harry May and Ivan Roberts uplip the hillhill-- and thenIhell marched back again'. The opinion also there. Their spirits too are in this room with us nonetheless,nonetheless. in my \'iew,\'iew. betrays a mInd-setmilld-set morcmore IIseflilIIscflll hl ·They are here to remind us of our brief journey to those who officiate at sku!ffeboardskufffeboard gWlIcs.gWlICS, primarily gh ,hi"this ",'of,ess:;onprofession which gives so much and to which we concerned with which parricularparriclilar squaresqllare the disc has also make returns. landed on,on. thanthall to those who arcare JeckingJeding to10 administer e," When I first look up judicial appoimmentappnimment in 1974 there a system ofjustice ... " ~l;Were·~,"5!IOrnennb"rsofthe590 members ofthe Bar of New SOUlh Wales_Wales. Of them, ~~were'''NCn, ,<'JeensQueen's Counsel. Today there are 1700 members of Within weeks of writing thc"ethe!';c words, Justice Rehnquist ~r~,Bar and 200 silks. Inevitably, with the expansion of the was elevated to become his nation's Chief Justice. His strong ~lar, there have been changes. But many of the traditions of words were rewarded withwith:la marvellous judicial crown. When "l~':~I~~~)n(1U~sourage. honour randand c,oOl,ra,jc.·;hcomradeship il) endure.",d,,,e. akin to those enjoyed I1 measure Justice Meagher'sMeaghcr's worus against such vituperation. -I li~soldiers under fire. May it continue to be so. I realise once again how sweet is my brother's disposition. I also know Justice Meagher's writing well enough to be ~~RPASSING able to recognise, without hesitation, when he is straying from .~4· his natural disposition into a few gently chosen words of :;:!~'~f; Ofcourse, in the daily life of the law there are inevitable criticism.criticism, That was not so in Videski.Videski, as I hastened to reassure :;: ,::;-.C'risesthatblowup.up.
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