Index to compilation of speeches delivered by the Hon. Justice P Stein AM Page number Date speech Description reference within delivered pdf compilation 24 April 2003 Retirement from the Supreme Court and the Court of Appeal of the Honourable Justice Paul Page 2 of 86 Stein AM 26 March 2002 Use of Expert Assessors in the Hearing of Page 12 of 86 Environmental Cases 27 June 2000 Down Under Perspective of the Environmental Page 20 of 86 Court Project 15 October 1999 Are Decision-makers Too Cautious With The Page 30 of 86 Precautionary Principle? 6 March 1999 Major Issues Confronting the Judiciary in the Adjudication of Cases in the Area of Page 56 of 86 Environment and Development 6 March 1999 New directions in the prevention and resolution of environmental disputes - specialist Page 61 of 86 environmental courts Farewell Ceremony for the Honourable Justice Paul Stein upon the Occasion of his Re ... Page 1 of 10 Print Page Close Window Farewell Ceremony for the Honourable Justice Paul Stein upon the Occasion of his Retirement as a Judge of the Supreme Court of New South Wales THE SUPREME COURT OF NEW SOUTH WALES BANCO COURT SPIGELMAN CJ AND JUDGES OF THE SUPREME COURT Friday 11 April 2003 FAREWELL CEREMONY FOR THE HONOURABLE JUSTICE PAUL STEIN UPON THE OCCASION OF HIS RETIREMENT AS A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES 1 SPIGELMAN CJ: We gather here today to celebrate your Honour’s contribution to the administration of justice of this State particularly as a judge over a period of almost twenty years. You were appointed a judge of the District Court in June 1983, became a judge of the Land and Environment Court in June 1985 and were appointed a judge and a judge of appeal of this Court in April 1997. On behalf of all those associated with the administration of justice in this State and in particular on behalf of the judges of this Court, I thank you for the contribution you have made. 2 Even before becoming a judge your Honour made a significant contribution to the law and to public administration, for example, in the position of the Deputy Ombudsman between 1977 and 1979 and as President of the New South Wales Anti-Discrimination Board between 1979 and 1982. 3 Your public service in a wide variety of spheres of discourse included acting as Chair of the Juvenile Leave Review Committee between 1985 and 1988; as President of the Intellectually Handicapped Persons Review Tribunal under the Child Welfare Act 1970 between 1983 and 1989; as Chair of the Council of the Community Justice Centres of New South Wales under the Community Justice Centres Act 1983 between 1987 and 1993; as Chair of the National Consumer Affairs Advisory Council between 1987 and 1993; as Chair of the Commission of Inquiry into the ACT Leasehold System 1995 and as a member of the Board of the State Records Authority of New South Wales between 2001 and 2003. 4 In addition to official appointments your Honour was associated with numerous community organisations, for example, the board member and Chair of the Australian Consumers Association between 1974 and 1986; a member of the NRMA Crime Safe Committee between 1997 and 2000; and Chair of the NRMA Community Advisory Committee between 1993 and 1998. 5 This is a lengthy and diverse period of service to the people of this State. 6 Your Honour’s contribution to environmental law and to the community was recognised by the Award of Membership of the Order of Australia in 1994. 7 You have played an active role in judicial training, both of Australian judges and judges from Southeast Asia. Your Honour’s contribution to environmental law in this country as a lecturer, as an editor, as an author, as chair and member of various organisations, and as a judge, is unsurpassed. You have spoken and published regularly, both in Australia and overseas, at conferences and in courses, on the full gamut of issues that arise in the context of the protection of the environment by the legal system. 8 This is a record of public service of great distinction. On this occasion, however, it is particularly http://infolink/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_stein_110403 26/03/2012 Farewell Ceremony for the Honourable Justice Paul Stein upon the Occasion of his Re ... Page 2 of 10 appropriate for me to focus on your Honour’s contribution as a judge. 9 No doubt two seminal judgments at first instance in the Land and Environment Court are particularly close to your heart. In State Pollution Control Commission v Caltex Refining Company Pty Ltd (1991) 72 LGERA 212 your Honour held that the privilege against self-incrimination does not extend to companies. The Court of Appeal reversed your decision (Caltex Refining Co v State Pollution Control Commission (1991) 25 NSWLR 118), but the High Court reinstated it, with the judgments drawing on many of the same policy considerations which you had analysed in your judgment (see (1993) 178 CLR 477 esp at 508). 10 In Oshlack v Richmond River Council (1993) 82 LGERA 222 your Honour identified that the nature of the proceedings being a challenge to the validity of development consent at Evans Head on the basis of the impact of the development on endangered fauna was sufficient to constitute special circumstances to displace the usual rule that costs should follow the event. The Court of Appeal overruled your decision ((1996) 39 NSWLR 622). The High Court allowed the appeal (Oshlack v Richmond River Council (1998) 193 CLR 72). 11 As a judge of the Land and Environment Court your Honour made major contributions to every aspect to the burgeoning jurisprudence of the Court. Particular note should be made of litigation involving the Forestry Commission and wildlife protection (Corkhill v Hope (1991) 74 LGERA 33 and Corkhill v Forestry Commission of New South Wales (No 2) (1991) 73 LGERA 127). The Chaelundi State Forest which was in issue in these proceedings was described by your Honour as home to “a veritable forest dependant zoo, probably unparalleled in south-eastern Australia”. This was the first occasion in Australia that wildlife protection law was enforced against a government authority. It laid the foundation for future statutory regimes, both in this State and at the Commonwealth level. On this occasion your Honour was affirmed by the Court of Appeal (Forestry Commission of New South Wales v Corkhill (1991) 73 LGERA 247). 12 In Parramatta City Council v Peterson (1987) 61 LGERA 286 your Honour’s judgment was the seminal decision about the application of s94 of the Environmental Planning and Assessment Act 1979 as to when a consent authority may require dedication of land or payment of a monetary contribution for the increased demand for public amenities and public services arising from a development. 13 In a number of judgments you contributed to the evolution of the jurisprudence of the Aboriginal Land Rights Act 1983. In Tweed Byron Aboriginal Land Council v Minister Administering of Crown Lands (Consolidation) Act (1999) 72 LGERA 177, you set aside a ministerial certificate and granted part of land claimed by the Aboriginal community at Fingle Head. However, in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192, your Honour rejected the claim to the grand colonial New South Wales Department of Education building in Bridge Street, holding that, notwithstanding that the fact that it was virtually vacant at the time of the claim, it was nevertheless being used for a public purpose and was not claimable. 14 In Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270 your Honour considered the then recently developed precautionary principle in environmental law. Drawing on the growing body of literature and recognition in international instruments, you applied the principle in the course of litigation for the first time, I believe, in the common law world. Your judgment has attracted considerable attention in the international environmental law community. It has been referred to many times, not only throughout Australia, but also in judgments in England and New Zealand. It will long remain a seminal contribution to environmental law. 15 Upon your elevation to the Court of Appeal your Honour continued to make significant contributions to the development of environmental law. In Coalcliff Community Association Inc v Minister for Urban Affairs & Planning (1999) 106 LGERA 243 you considered that the lapsing of development consents and the requirement for compliance with conditions. In Scharer v State of New South Wales (2001) 53 NSWLR 299 your Honour considered the exclusive jurisdiction of the Land and Environment Court. 16 In this Court, of course, your Honour’s contribution covered a broader range of the law. You have made a notable contribution to the application of the special laws of this State with respect to dust diseases. Your dissent on the issue of causation in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 was recently cited with approval by the House of Lords in Fairchild v Glenhaven Funeral Services http://infolink/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_stein_110403 26/03/2012 Farewell Ceremony for the Honourable Justice Paul Stein upon the Occasion of his Re ... Page 3 of 10 Limited (2003) 1 AC 32 at 64-65 and 116. You wrote the leading judgment in a case considering the relationship between the duty of care of an employer with respect to the use of asbestos products and the duty of care of the manufacturer of such products, including questions of apportionment and indemnity (Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626.