Sesquicentenary of the Supreme Court of Queensland

Address from The Honourable Chief Justice de Jersey AC

The court is greatly honoured by the presence on this historic occasion of the Governor of Queensland, Her Excellency Ms Penelope Wensley AC, and we sincerely thank Her Excellency for her attendance today.

I also note with pleasure and thanks the presence of the Honourable the Deputy Premier and Attorney-General, the Presidents of the Bar Association of Queensland, the Queensland Law Society and the Australian Bar Association, Justice Kiefel of the High Court of Australia, Judges of the Federal Court of Australia and the Family Court of Australia, eleven retired Judges of the Supreme Court, the Chief Judge and Judges of the District Court, the Chief Magistrate and Magistrates, members of the Land Court, the Director-General, Deans, court officers and members of the profession.

Before inviting the Deputy Premier to address us, I note something else historically uncommon. To my recollection this is the first time, in my 26 years on the court, that all Judges of the court, including our colleagues the Central, Northern and Far Northern Judges, have been able to be present on this bench together: the whole court today sits en banc in its eponymous courtroom.

Mr Deputy Premier and Attorney-General? …

Mr Solicitor-General?…

Mr Douglas of Senior Counsel, President of the Bar Association of Queensland? …

Mr Doyle, President of the Queensland Law Society? …

Mr Stewart of Senior Counsel, President of the Australian Bar Association?…

Deputy Premier and Attorney-General, Mr Douglas and Mr Doyle, my colleagues and I thank you for your commendation of the court.

The court’s journey to this substantial milestone has been long, at times colourful, but always desirably steady. I say “desirably” because that is what our citizens reasonably expect. They expect to be served by a Supreme Court which delivers both timely and predictable justice according to law. We would concede that the work has not always been accomplished in a timely way, but fortunately that era of some slippage is now long gone. And it must be said in fairness to our predecessors that the facilities now available to the Judges greatly assist in the avoiding of delay.

Marking an anniversary at this level, one may however be pardoned for straying beyond issues of efficiency. Today we celebrate the enduring legacy of this great State’s highest emanation of the third judicial branch of government, and the Supreme Court’s valuable contribution over 150 years to the good government of the people of the State, of all our citizens, including of course our indigenous fellow citizens, whose ancestral association with these lands has endured very much longer.

Today’s ceremony involves some recovery of position. I am reliably informed that the court’s centenary in 1961 passed unnoticed and unacknowledged, which went to explain our enthusiastically marking the 125th anniversary in 1986. There can be no question that the 150th anniversary should be accompanied by fanfare.

The prompt for the 125th celebration actually came from Justice Martin, then a member of the Junior Bar. With characteristic and commendable attention to detail, Mr Martin realized from reading the bronzed letters patent displayed in the forecourt that the Court’s 125th anniversary was on the way, and he drew this to the attention of the then Chief Justice Sir Dormer Andrews. Sir Dormer embraced with alacrity the celebration of an anniversary which would not ordinarily command such attention. As the only current member of the Court present at the ceremonial sitting in 1986 as a Judge of the Court, I remember thinking as much at the time. No such doubt could attend the marking of the 150th anniversary.

The significance of this court is congruent with the significance of our State within the federation, a State large in geographical area and population and with an economy assured by abundant natural resources. Especially through its commercial list the Supreme Court has for many decades done its best to support the commercial development of the State. But the court has done its best to serve the people well in all its jurisdictions, with the criminal jurisdiction obviously the most significant. And in all its jurisdictions, the court has been assisted in large measure by the independent legal profession, also significant for its accounting for about 10% of the overall national profession. In celebrating the Supreme Court’s sesquicentenary today, we particularly acknowledge also the Supreme Court’s productively collaborative relationship with all other Queensland Courts, especially the District Court, the Magistrates Court and the Land Court, and the Queensland Civil and Administrative Tribunal headed indeed by one of our own judges.

The court grew from humble beginnings, as did the State from the former colony, and the growth of the court reflects the growth of the State.

At the establishment of the court on 7 August 1861, there was only one judge, Mr Justice Lutwyche, and he sat in the Chapel of the Old Convict Barracks in Queen Street. The annual Opening of the Law Year Church Service is of rather more recent origin.

Let us move on to the point half-way along the timeline.

Seventy-five years later in 1936, there were but seven Supreme Court judges led by Sir James Blair, including by that stage a Northern Judge and a Central Judge, and the court occupied the grand Italianate-style courthouse on this site which burned down, as the result of an act of arson, in 1968.

And now another 75 years on, our Supreme Court of 2011 comprises 26 Judges, including six permanent Judges of Appeal, and in addition to a Northern Judge and a Central Judge, a Far Northern Judge. The court in Brisbane occupies this building which was opened in 1981, and the court anticipates its move next year to the new metropolitan premises at the western end of George Street. Of particular note is that the last two decades have seen the appointment of women to the court, now numbering nine of its complement of 26, a ratio lower only to that of the Family Court.

It is a substantially larger, and much different looking court from the court of 1861 or, for that matter, the somewhat more recent court of 1936. What of its jurisdiction?

The years have seen some erosion of the jurisdiction of the court, especially with the establishment in 1976 of the Federal Court and in 1975 the Family Court, and though to a lesser extent, the diversion of work to tribunals.

In other areas the court’s jurisdiction has expanded, in 1991 for example when through the Judicial Review Act the court was accorded jurisdiction to pass upon the legality of administrative decisions unfettered by the complicated strictures which attended the prerogative writ regime. Some newly-acquired jurisdictions have exposed the court to controversy, as with the Dangerous Prisoners (Sexual Offender) legislation. For 37 of those 150 years the court’s workload increased because of the absence between 1922 and 1959 of a District Court.

For all such changes, however, the court remains, alongside the Supreme Courts of the other Australian States, a court whose plenary jurisdiction assures our citizenry of appropriate remedies in both the civil and criminal domains. While some judgments have drawn criticism, that has generally been overtaken by supervening public confidence in the true commitment of those who comprise this resilient institution.

Unsurprisingly the years have seen many changes in the way the court exercises its jurisdiction. The year 1991 was momentous for reconstitution, with the establishment of the Court of Appeal Division and the Trial Division. Each Division this year reaches its 20 year milestone. The Mental Health Court and its predecessor wrought substantial changes in our approach to offenders against the criminal law afflicted by unsoundness of mind. The court’s embrace from the late 1980s of the mechanisms of alternative dispute resolution meant that judicial adjudication came to be reserved, largely speaking, for only those disputes actually needing it, thereby working substantial economies in the interests of disputants. Our procedures have over the years been streamlined in other ways, by the use of electronic trials and other electronic facilities, and the reform of the procedural law effected by the Uniform Civil Procedure Rules.

There have been many changes, in the composition of the court, its jurisdiction, and it procedures.

But those many changes aside, the mission of the court remains unchanged 150 years on, and it is a mission discharged in many centres throughout our vast State. The discharge of that mission is facilitated by the support given to the Judges by the court’s valued Registry and administrative staff, and also as I have said by the practising profession, levels of support which the Judges greatly appreciate.

I venture that each of the 110 Judges appointed to this court over its 150 year history has regarded it as an immense privilege, and likewise responsibility, to discharge the duties of this high office, and to become part of the fabric of a significant body politic.

While it is for others to assess the effectiveness of our endeavours, I have no doubt that the public is reassured by the role the court has played, and will continue to play, in the delivery of justice according to law, and thereby, in the maintenance in our State of the rule of law.

Let these proceedings be recorded!

Adjourn the court…

Speech delivered by Richard Douglas S.C.

If it please the court.

The Queensland Bar joins the government and the solicitors of Queensland in celebrating this important anniversary of the establishment in this state, following separation from New South Wales, of an independent superior court.

Lutwyche:

Your Honours, on 14 August 1861 Alfred Lutwyche was sworn as the first judge of this court under the newly enacted Supreme Court Constitution Amendment Act.

Lutwyche was a Londoner born in 1810, educated at Oxford, and admitted to the Middle Temple in 1831.

He supplemented his bar income by reporting parliamentary debates for the “Morning Chronicle”. In later years he waxed lyrical about Charles Dickens being one of his close colleagues in such reporting.

Like many of his time, in the arduous course of passage to this country he suffered the privation of ship-wreck.

In his 20 years on the bench until his death in 1880, Lutwyche was much loved and lauded by the Moreton Bay press. In that regard, no doubt, he would be the envy of any modern day judicial officer.

Commenting upon Lutwyche’s many tussles with the fledgling Queensland parliament, the “Moreton Bay Courier” applauded his endeavours to (and I quote):

… stand between people and the crown and do justice to both …

In contrast, the newspaper described the parliamentarians of the day as:

… a pack of sycophantic nominees, who were destitute of gentlemanly feelings, who lacked common Christian charity, who have utter disregard for the truth (and) who have not the slightest acquaintance with first principles of justice.

To be fair, while members of this court have continued to practise the aforesaid admirable trait of Justice Lutwyche, parliamentary attributes have greatly improved since those early days.

Volume 1 of the Queensland Supreme Court Reports carries as the first reported case a decision of Lutwyche in The Queen against King ex parte King.

In that decision, which was reserved for only several weeks, and then delivered with learned reasons descending to international law, ruling in favour of a prisoner in custody seeking discharge on a writ of habeas corpus, Lutwyche described “common sense” as a concept:

… which is very often found in the closest alliance with the law …

No doubt Lutwyche would be proud, albeit perhaps surprised, that from the humble beginnings of the then single member court there has grown a testament to the application of common sense he identified, in the form of this court with a complement of 26 judges, a District Court carrying a complement of 38 judges, a Magistrates Court comprising 86 magistrates, together with a generously manned Civil Administrative Tribunal and Land Court.

The North:

Importantly in a decentralised state like Queensland, this court has judges based in the three major northern provincial centres providing local communities with ready access to a court of plenary jurisdiction. Each of you is on the bench here.

The first Northern Judge, Edmund Sheppard, was appointed in 1874. Recently sworn Justice North is the twelfth appointee to that position.

Barristers:

As to the Bar, from the 10 barristers on the roll at the end of 1861, there are now well over 1000 private and state practising specialist advocates.

The quality of the bench has nurtured the quality of the bar, and vice versa.

Case Law Reflecting History:

Your Honours, any review of the Queensland case law evidences the rich tapestry that is this state’s history.

Such litigious case law reflects very much the immigrant and indigenous demographics of the state, coupled with its rural and commercial development principally in the spheres of agriculture, property and mining, and more recently tourism and infrastructure.

The nuances of such litigation have produced lighter moments.

One of the most accomplished members of the Queensland Bar and subsequently this court was the late Peter Connolly QC.

A story is told of Connolly querying counsel, before him in a property boom vendor and purchaser case, as to compliance with the procedural rules of court.

The non-sequitur response came from one counsel that the matter was a dispute between land developers.

His Honour’s tart response was to pick up his copy of the Supreme Court Rules, toss it over his shoulder and retort:

Well, if the case involves land developers, we won’t be needing these!

Upon Connolly’s retirement, the Bar Association’s Chief Executive, Mr Dan O’Connor, taxed the great man about his exchange, to which he responded:

Dan, I am alleged to have done many things ….

Chief Justice:

Your Honours, the first Chief Justice of this court was Sir James Cockle who was appointed on 21 February 1863.

Subsequently this court has been led by many outstanding jurists. With respect to them, however, Chief Justice, most pundits would contend that you have been one of the most able leaders of this court.

Your willingness to expose the workings of the court to proper public scrutiny, to the point even of you appearing recently on an ABC radio program answering questions from high school students, has removed substantially the shroud of mystique from judicial practice.

Conclusion:

Through you, Chief Justice, the barristers of Queensland congratulate this court on the occasion of this important anniversary.

The present members of this court, and their predecessors of the past 150 years, have maintained the highest standards of judicial independence and quality in the service of the people of Queensland.

If it please the court.