Valedictory Remarks by the Honourable Justice White

Chief Justice, Mr Attorney, Mr Traves, Ms Bradfield, Your Honours, Ladies and Gentlemen,

It was my good fortune in 1970 to marry into Queensland. In doing so I became related to rather a lot of people and exposed to a different culture. I was reminded of this last month at the Queensland legal fraternity’s welcome to Chief Justice James Allsop in the Federal Court when the President of the Queensland Bar presented Justice Allsop with a Queensland Maroon’s rugby jersey so that, being by origin a New South Welshman, he could walk safely down George Street if he happened to be visiting Brisbane on certain evenings of high fervour.

A senior solicitor mentioned one Applications’ day in late 1999 shortly after the Uniform Civil Procedure Rules had been introduced, that one could have at one’s fingertips only one set of Rules of Court in a lifetime. So too, with codes of football. I have tried, but still find the rules of the scrum elude me.

But I did find much to admire in another Code in Queensland – Sir Samuel Griffiths’ Criminal Code. For someone educated in the common law tradition that Code was a revelation. Its systematic exposition of criminal responsibility reflects great originality, it removed anomalies in the common law and introduced merciful amelioration.

In 2002 the Supreme Court Library mounted a splendid exhibition on the Griffith Code entitled “From Italy to Zanzibar — Antecedents and Descendents — An Exploration of Ideas”. That exhibition coincided with the first (and only) meeting of the International Academy of Comparative Law in the Southern Hemisphere. The learned (mostly European) members of the Academy attended a lecture on the subject of the exhibition by Sir Harry Gibbs in the old Banco Court. The Italian professors were surprised to learn that our Griffith Criminal Code was so strongly influenced by the criminal code of Signor Zanadelli, a nineteenth century Italian prime minister.

The Griffith Code was introduced not only in other Australian States but throughout the British colonial world.

My five years as Chair of the Library Committee was a most rewarding experience. The inspiration and guidance of the Library by Mr Aladin Rahemtula is legendary. Because of his endeavours we are the envy of every other court in Australia. The Library motto, devised by Aladin: “Bridge to the Past Gateway to the Future”, encapsulates brilliantly its objects and role. We must forever be grateful to those Judges of the 1960s, particularly Mr Justice Graham Hart who established the modern library and secured its independence and charitable status with the passage of its own Act of Parliament.

We judges consider ourselves fully occupied. It is astonishing then to recall that Sir Samuel Griffith translated from the Italian the Zanadelli Code, drafted the Criminal Code, and, at the same time, carried out his duties as Chief Justice. He was also engaged in drafting the Rules of Court and the Probate Act amongst other important legislation.

On these occasions the final speaker is indulged a little and permitted to speak in a fashion which would otherwise be regarded as quite inappropriate.

I have had a most fortunate life and would like to acknowledge, albeit inadequately, my gratitude to some of those who have enabled that good fortune.

My late parents strongly believed that every child should receive as excellent an education as was achievable. Our home was filled with books and their contents were much discussed. To them I owe a great deal.

As mentioned, the late Professor D P O’Connell, Professor of International Law at the University of Adelaide, employed me as a research assistant during my undergraduate study. He opened a wider world of the intellect and the arts to his students in the 1960s. When he was consulted many years later in Oxford where he was Professor of International Law, by the then Queensland Minister for Justice, the Hon Bill Lickiss, about a possible Great Constitutional Adventure for Queensland, he recommended me as someone who might know something about constitutional matters.

I had just gone to the Bar and was retained to appear for Queensland as intervener with DF Jackson QC in the Tasmanian Dam’s case. So recent was the move from the university that I had not even signed the High Court Roll! Those who have had the opportunity to work with David Jackson will have watched in admiration as the Master teased out the issues and refined and reduced them to elegant simplicity. He treated the Bench with grave courtesy and assumed, not always with justification, that the judges were as able as he.

Earlier, in the mid-1960s, the late Captain Larry Winch DLNS had suggested that I might care to give some lectures on the United Nations Charter and International Law to the final year Naval cadets at Jervis Bay. Admiral Peek thought that the WRANS daily rate of pay of $6.40 would be more acceptable than the fees that the Navy had had to pay to civilian counsel appearing in the First Voyager Royal Commission. So the Womens’ RAN Reserves was re-established and I began a long and very happy relationship with the Navy.

As an aside, Mr Justice George Lucas was a member of the Second Voyager Royal Commission and I have had the honour of wearing his ceremonial robes during my time on the court. Each time I put them on I hoped that something of his judicial sagacity would, Harry Potter-like, flow into my veins.

When I was teaching at the University of Queensland Law School in the 1970s the late, brilliant legal scholar, Professor Kevin Ryan, subsequently a judge of this Court, encouraged the women on the staff, by offering us the pick of the timetable because we had babies or small children to consider notwithstanding some grumbling by others. His thoughtfulness was considerable.

There can be no doubt that the forensic high point of my career was to appear for the State of Queensland in the long-running Mabo litigation and I note that somewhat coincidentally today is the anniversary of the handing down of the Mabo judgment in the High Court on the 3rd of June.. I learnt a great deal about the rules of evidence from Justice John Byrne, when he was, for a time, the lead counsel — as well as a certain steady steeliness and something of a passion for Wigmore.

When I was appointed Master, I was warmly welcomed by the Senior Master, Don Horton. We shared a birthday and tomorrow he would have been 69 — an absurd thought — if he had not thrown off this mortal coil in 1991. After that tragic event I was much supported and encouraged by the Honourable Bruce McPherson, then Acting Chief Justice, as I endeavoured to carry out the duties of Master alone.

In the Great Upheaval which followed the establishment of the permanent Court of Appeal many of us would have relished Don Horton’s observations on that event and the ensuing fall out which excited so many in the law. But those stories are not for today.

I am so pleased that the President and Members of the Land Court are here. I hope they will not mind if particularly acknowledge the former President, Mr John Trickett. I was assigned to the Land Appeal Court by the Chief Justice for three years and was gently introduced into its law and its other lore by John Trickett. I cannot imagine that there is anyone who knows more about land in Queensland and its value than he does. The Land Court is the second oldest court in the State and goes about its important business quietly and with the utmost dedication and competence.

I am so delighted that Justice Tracey of the Federal Court is present. His Honour is the President of the Defence Force Discipline Appeals Tribunal as well as the Judge Advocate General of the Defence Force. I have been privileged to serve on that Tribunal with him and his predecessor, retired Justice Peter Heerey, and the other members of the Tribunal. It does demonstrate that a court comprised of Federal, State and Territory judges can work smoothly.

I have served on this court with excellent colleagues and while in the distant past there have been some personality mismatches and conflicts of Cartheginian proportions, these days it is much duller and far more comfortable and both divisions of the Supreme Court operate harmoniously.

The judges can only achieve an optimal outcome with the support of diligent court staff. Throughout my time on the court I have enjoyed excellent relations with all of those who support us in our work and to them, the bailiffs, the registry staff, security and the members of the excellent State Reporting Bureau whose last day was on Friday, I express my thanks.

Above all, the judges are dependent on the diligence, intelligence and integrity of the Bar and the solicitors. As officers of the court they join with the judges in constituting the third arm of government delivering justice according to law and while I hesitate to contradict so august a person as the President of the Bar, I must do so perhaps for the last time, I was not a Fullbright scholar.

As all judges will acknowledge, one of the best aspects of the office is our associates. Each year we have the pleasure of having with us intelligent, hard working young men and women. We teach them a little, I hope, and they teach us a great deal. We enjoy their many successes as the years pass. I am honoured and delighted that so many of them have been able to attend today as well as many present associates working in the Court this year.

If there is a special relationship with our associates, there is a particularly close one with our secretaries. They have all given splendid service but I would particularly like to thank, publicly, Mrs Rexine Cooney, who has supported me, my chambers and, indeed, many others on the Supreme Court so well over so many years.

I should like also to acknowledge the great support that I have had from my family. Michael, of course, has given most and I thank him, however inadequately, in these few words. I thank our children for a great deal, but particularly, for not expecting me to do tuck shop. I am so delighted that my brother Phillip, a winemaker and magistrate, has travelled from the bushfire scarred Adelaide Hills to attend today.

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Ladies and gentlemen, provided they sacrifice enough newts and frog’s toes, old crones seem permitted to say something about the future. As I gaze into the bubbling cauldron I sense that we could do some things so much better and less expensively if we did not do them nine times over — six States, two Territories and the Commonwealth.

Sir Owen Dixon, appearing before the Royal Commission on the Constitution in 1927, and again, writing in 1935, advocated that neither from the point of view of juristic principle nor from that of the practical and efficient administration of justice, could the division of the courts into State and Federal courts be regarded as sound. He said:

“It would not have been beyond the wit of man to devise machinery which would have placed the courts, so to speak, upon neutral territory where they administered the whole law irrespective of its source.”1

Since we have largely abandoned the “autocochhonous expedient” which served us well, I would hope that well before the bicentenary of federation Australians will have concluded that it is possible to have too much of a good thing and rationalised its courts, as Sir Owen Dixon suggested.

Finally, may I thank you all for attending this last long farewell and for the generous sentiments which have been expressed.

This has been a fine place from which to depart but perhaps the event lacks a little colour. Maybe our impresario extraordinaire, Justice Glenn Martin, did not realise that on the fourth of June 1784, nearly 230 years ago, Elizabeth Thible, a French opera singer became the first woman to fly in a hot air balloon. As the balloon rose, and dressed as the Roman Goddess Minerva, the diva, with the pilot, sang two duets from La Belle Arsène.

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So for now, I put aside Maher, Gummow and Lehane and take up Damon Runyon in the expectation of a -More Joyous future.

Footnotes

1. O Dixon “The Law and the Constitution” (1935) CC IV Law Quarterly Review 590.