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Dyson Heydon’s Farewell Speech To The NSW Supreme Court

This is the text of the farewell speech delivered by Justice John Dyson Heydon to the NSW Supreme Court, preparatory to his elevation to the High Court of Australia.

Justice John Dyson Heydon’s farewell speech to the NSW Supreme Court.

Chief Justice, ladies and gentlemen:

In February the weather is steamy and enervating. There is a great temptation to go out as little as possible. That so many of you have undergone the ordeal of a journey to this Court on this occasion – having accomplished two trips already this week – is something for which I am deeply grateful. I particularly welcome retired judges from this Court, and judges of the Federal Court.

Dr Johnson said that in lapidary inscriptions a man is not on oath. It is fortunate for the consciences of those who have spoken in such extravagant terms this morning that they have sworn to nothing. It is also fortunate for them that they are not subject to cross-examination on what they have said, and fortunate for me that there is no devil’s advocate to advance a contrary point of view. Such an advocate would have a very strong hand of cards to play. But I am grateful for the one side of the story which has been told.

On Tuesday the Attorney-General remarked in passing – but not merely perfunctorily – that this Court was among the finest in the common law world. That is an important truth which, obsessed as we tend to be by small failings or difficulties, and faithful as we are to our national characteristic of self-deprecation, tends to be forgotten by members of the court, the profession and the public. When you, Chief Justice, were sworn in in 1998, you remarked, with typical confidence and panache, that the court was in good shape. It has, I think, got into even better shape since then. And three or four – perhaps more – of its members would stand out in and adorn any tribunal in the world, no matter how illustrious.

I once saw Andre Previn on television attempting to demonstrate the vital role of an orchestral conductor. He said: “When I stop conducting, they will stop playing”. He did stop conducting, but they kept on playing in perfect harmony for a considerable time. A court, too, could operate for quite some time without leadership, but eventually it must be supplied. It need not, however, be blatant. You, Chief Justice, constantly take many steps, usually not widely known, to ensure the health of this Court. You have ensured the happy co-existence of personalities with diverse and sometimes conflicting traits and you have sought to ease their problems. I am particularly grateful for many personal kindnesses and clandestine acts of assistance of which I am not supposed to know, and I suspect there have been others of which I do not know. I must also thank the President of the Court of Appeal, Justice Mason – and I think other members of the Court will join me warmly in this – for the almost infinite pains he takes, over many hours per week, to ensure that the Court of Appeal moves as smoothly as possible through its large workload no matter what last minute crises spring up.

To any experienced barrister who is offered appointment to this Court, but is hesitating, I would urge acceptance. The work can be hard and can be tiring – but it is pleasantly hard and pleasantly tiring. The people are most agreeable. In three years I have scarcely heard a cross word spoken. To come here can make a happy change when the storm and struggle of the Bar ceases to hold its ancient charm.

To move, as I did, from a relatively narrow area of the Bar to a court with as wide and varied a jurisdiction as this Court has, affords the opportunity to make interesting comparisons of forensic style. The two main new styles I encountered were those of the personal injuries Bar, and the criminal law Bar. The common lawyers offer a sharp contrast to the apologetic, hesitant techniques of their Chancery colleagues. The latter habitually whisper and mutter and ramble their way through sentences of which Henry James in his last novels would have been proud. With the common lawyers there is no wavering. There is no doubt whom they are appearing for. The big guns roar loudly, and with very considerable muzzle velocity. They eloquently and emotionally implore the court for justice. They have plenty of that admirable quality known in Wales as hwyl. Their splendid qualities are captured by the story of the lift journey which Mr R P Meagher QC and Mr Linton Morris QC took in Selborne Chambers at a time when the adjoining premises of the Law Society were undergoing building works. As the lift descended, there was an enormous crash, and the whole lift shook. Morris said: “What on earth was that?” Meagher pondered the problem and said: “I think it was a common lawyer having a thought.”

The criminal Bar is different again. In the nature of things those appearing for appellants who have been convicted by a jury must not linger too long on the sordid factual circumstances which generated the prosecution. Rather, it is best for them to concentrate with precision and brevity on one or two technical deficiencies in the trial. I have seen this technique deployed deftly by some very capable and often young barristers, and one very capable solicitor. Their names are not widely known but they posses the greatest skill.

In general, then, the barristers of this State, and the specialist litigation solicitors who brief them, serve the public with great dedication and great ability. If I could voice one criticism it is this. Often advocacy in New South Wales proceeds with powerful statements on each side of the question. But sometimes the statements, powerful though they are, do not grapple with the best points in the competing argument. There is a higher form of advocacy associated with the 8th Duke of Devonshire. So far as he is known now at all, he is best known as the Marquis of Hartington, under which name he sat in the House of Commons for 37 years until 1893. He had the unique distinction of being offered the Prime Ministership on three occasions, in 1880, 1886 and 1887, and each time refusing. The announcement in 1886 of Gladstone’s plans to give home rule to Ireland caused the Duke to detach the Whigs from the right wing of the Liberal Party while Joseph Chamberlain led out the Unionist radicals from the left wing. As a much younger man he had been the model for the leading character in Trollope’s political novels, Plantagenet Palliser, Duke of Omnium. On 24 March 1908, he died with the words: “Well, the game is over, and I am not sorry.” When the news reached the House of Commons that afternoon, the Prime Minister, Sir Henry Campbell-Bannerman, was ill and absent. He was a doomed man; he resigned ten years later; and within a month he too died. The duty of announcing the news of the Duke’s death thus fell to Mr H H Asquith – then the Chancellor of the Exchequer, but known to contract lawyers as counsel for the losing party at trial in the Carbolic Smoke Ball case. Mr Asquith paid an elegant tribute to the man whose fragmentation of the Liberal Party had kept it out of office for most of the previous twenty years – and a handsome one. He said that the Duke was “almost the last survivor of our heroic age”. The Leader of the Opposition, Mr A J Balfour, attempted to explain the source of his greatness, in a speech which was in its day famous:

“I think of all the great statesmen I have known the Duke of Devonshire was the most persuasive speaker; and he was persuasive because he never attempted to conceal the strength of the case against him. … [He] brought before the public in absolutely clear, transparent, and unmistakable terms the very arguments he had been going through patiently and honestly before he arrived at his conclusions. He had seen all the difficulties which he ultimately had to pursue. … What made the Duke of Devonshire persuasive to friends and foes alike was that when he came before the House of Commons or any other Assembly, he told them the processes through which his own mind had gone in arriving at the conclusion at which he ultimately had arrived. Every man felt that this was no rhetorical device, but that he had shown in clear and unmistakable terms the very intimate processes by which he had arrived at the conclusion which he then honestly supported without fear or favour, without dread of criticism, without hope of applause. He had that quality in a far greater measure than any man I have every known; and it gave him a dominant position in any Assembly. In the Cabinet, in the House of Commons, in the House of Lords, on the public platform, wherever it was, every man said, ‘Here is one addressing us who has done his best to master every aspect of this question, who has been driven by logic to arrive at certain conclusions, and who is disguising from us no argument on either side which either weighed with him or moved him to come to the conclusion at which he has arrived. How can we hope to have a more clear-sighted or honest guide in the course we ought to pursue?’ That was the secret of his great strength as an orator.”

Now court advocates are different from statesmen. Advocates offer no warranty of the soundness of their arguments. Advocates merely present a reasonably arguable point of view. But to expose and deal with the difficulties in one’s case before the other side has raised them can be a passport to decisive success, and may be a technique which merits wider consideration.

I turn to a different matter – one of considerable importance to the Court, and to all New South Wales lawyers.

Lawyers of my generation will remember the condition of the Supreme Court Library when it was housed in the old Supreme Court building. It was jumbled and it was a fire hazard, but it was a good working library. When in 1977 the Federal Court was created and housed together with the Supreme Court in this building, a merged library on the 15th floor was created. To the Supreme Court holdings were added materials from other State libraries and from a variety of Commonwealth Courts. The library became a valuable national institution – an important and effective intellectual resource. Since the early 1980’s, users will have noticed a steady decline. The price of books, journals and reports has risen. The long-term devaluation of the Australian dollar has accentuated that rise. The resulting problems caused distress to Sir Anthony Mason. In 1993 he spoke publicly about it. He was speaking after 21 years service on the High Court of Australia and 6 years as Chief Justice of Australia. He was ideally equipped to speak on the subject. On 30 September 1993, in his address on “The State of the Judicature” to the 28th Australian Legal Convention at Hobart ((1994) 68 ALJ 125 at 130-131), he noted that in the year ending 30 June 1993, the Joint Law Courts Library cancelled approximately 300 subscriptions to serial publications, including some law reports; a significant proportion of the serial publications cancelled comprised overseas journals. He said of these journals:

“They play an important part in judicial education, enabling judges to keep up with and take advantage of the latest developments and academic writings. To some extent it is possible to minimise the loss by borrowings from other libraries but that is achieved with a loss of judicial time and efficiency and at some expense.”

He then uttered these four very important sentences:

“The high reputation which Australian superior courts enjoy overseas is due in no small measure to the legal knowledge and scholarship of Australian judges. Legal knowledge and scholarship depend on the provision of good library facilities. Yet law libraries, not only in the courts but in the universities, are being forced to cut back very significantly. What is happening represents a trend which, if it continues, has the potential adversely to affect legal education and the quality of judicial work done by the courts.”

The quality of judicial work done by the Courts does not depend only, or even largely, on the unaided researches of the judges. In this respect as in many others, the Courts depend heavily on counsel, and on the work of solicitors who instruct counsel, to refer them to materials which might support new solutions to particular problems. The Joint Law Courts Library is a primary resource not only for the judges but also for the profession. Reductions in its holdings and its efficiency by reason of financial constraints are gravely injurious to the work not only of the bench but of the profession as a whole.

Two methods of palliating the malaise have been employed. First, savings generated by not filling staff vacancies have been used to slow the fall in acquisitions. The second lies in the skill of the staff. Without their dedication – which has gone far beyond the call of duty – and their capacity to co-operate with other stricken libraries in universities and elsewhere, services would have fallen to disastrous levels. But the two panaceas cut against each other. Staff cuts cannot proceed indefinitely. There comes a time when staff morale is gravely threatened. And the malaise is growing worse. The number of judicial users is much greater now than when the Joint Law Courts Library was created. In 1977 there were 33 Supreme Court judges. Now there are 47. In 1977 there were 7 Federal Court Judges in Sydney. Now there are 18. Some of the specialised fields of federal jurisdiction entrusted to the Federal Court make it essential to have high quality overseas publications in those fields. There are also 2 federal magistrates sitting in this building. Since 1989 there have been four High Court judges based in Sydney, and since 1998 five. There are also many State, federal and university institutions to which the library has rendered and ought to render ongoing assistance.

Some observe the changed condition of the library with pleasure. They think the library has too many books. They view a library which has inadequate books with the same joy as that with which the late Sir Humphrey Appleby greeted a fully staffed hospital which had no patients. Some of them think that computer-accessed materials produce a superior system. This is quite wrong. Much of what is in book form is not available on computer, and never will be. But even if it were, the use of computers to access legal information must be complementary to, and not a substitute for, traditional methods.

A library represents the learning of past generations assembled and preserved not only for the benefit of those responsible but as a trust for generations yet unborn. That benefit can be lost and that trust can be breached in several ways. Libraries can be destroyed by physical annihilation. They can be destroyed by being pillaged. And they can be destroyed by an indifferent and neglectful failure to provide adequate resources. The odium which future generations will heap on this generation, if we fail to maintain and improve what past generations gave us, will be just as great whatever means of destruction we permit.

The library is fundamental to the role of the Courts which use this building in maintaining ordered liberty in our society. At present the problems of the library have been presented to governments for attention. I would urge the professional bodies to interest themselves in the problems of the library and to seek to persuade all relevant persons of their significance.

I turn to an even more doleful subject – the future after next Tuesday. My beloved family are displaying their customary stoicism about the impending misfortunes of others. There is only one hopeful sign. My admirable Associate, Barbara Price, is coming to the High Court after 16 years here. In all other respects the black tableau of the future looms up menacingly. I regard it with fear and trembling.

Like most people, my life has involved a succession of fresh starts. I attended seven schools in four countries spread over three continents, and one of those schools was a boarding school. I studied at two universities in two continents. I have been associated with law teaching in four universities in four continents. I spent twenty years with the Hibernian tribesmen of the 8th Floor, Selborne chambers, and three years with the more soigné types on the Court of Appeal. In each place the members formed themselves into different coteries, clans, sets, groups, clubs, circles, and cliques. In each the members had different rules, customs, traditions, conventions and usages. In each new mysteries had to be solved and new secrets revealed. But these were nothing to what lies ahead. When the journalists asked Harry Truman how he felt on succeeding to the Presidency after President Roosevelt’s sudden death, he said: “Boys, I feel like the sun, the moon and all the stars fell down on me. I don’t know if newspaper men pray, but boys, if you do, pray for me now.” Now I have to deal with a unique institution, peopled with formidable and inscrutable characters. I have to walk up to the sphinx, enter the most arcane of coteries, and try to survive. Just ahead lie the greatest and most mysterious riddles this side of eternity. I share none of President Truman’s virtues, but I do most intensely share his feelings.

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Malcolm Farnsworth
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