Swearing-in Justice Muir and Justice Daubney

May it please the Court:

The Bar very much welcomes your Honours’ appointments, and I take great pleasure in extending congratulations and best wishes to your Honours.

Your Honour Justice Muir

There is little that I can say about your Honour’s distinguished career that has not already been said.

But, as your Honour well knows, the mere prospect of repetition never stops a barrister from speaking. A variety of subtler measures are required for such a difficult task, and, it has to be said, your Honour has mastered all of them.

Many years ago a then leader of the bar — perhaps it was your Honour – told me that you can never flatter a judge too much. Despite that discouragement, I’ll do my best.

When your Honour was sworn in as a judge of the trial division, you were warmly welcomed by all and for many good reasons, notably including your Honour’s remarkable career as a leading silk at the commercial bar.

Your Honour had appeared as the leader in many important appeals, and the number of major trials that you had run as a silk in the years before your appointment was quite staggering.

But in retrospect, one aspect that particularly demonstrated your Honours’ qualification for high judicial office, and particularly for your recent role in the commercial list of the court and for this new appointment, was not just the number of trials that you had run, but their frequency. This part of your Honour’s life as a barrister is still looked on with awe by barristers today — and not without a tinge of envy.

It was not uncommon at all for your Honour to finish a long trial late in the week, only to start another lengthy and complex matter with only the intervening weekend to fine tune your preparations. Yet the high quality of your Honour’s work and your equable temperament remained constant throughout.

As was confidently anticipated at your earlier swearing-in as a judge, your Honour’s capacity and quickness on the bench has mirrored that earlier demonstrated in your long career as an advocate in the highest courts of the country.  You have also exemplified the judicial virtues of patience and courtesy, characteristic of this court as a whole, and greatly appreciated by the public, solicitors, and barristers in particular.

Another characteristic of yours is modesty. Reference to personalia in the index of the Australian Law Journal reveals nothing of your Honour’s outstanding record. Your entry in the Court’s website also tells us almost nothing. But even a cursory glance at your Honour’s career tells us that you have nothing to be modest about.

I earlier mentioned your quickness. It has been your habit, to announce at the end of trials, even complex commercial trials, a reliable estimate of the date, in the near future, on which you would deliver judgment. This ability speedily to produce judgments of the highest quality in complex matters has become a very significant qualification for all judges, and particularly for appellate court judges.

As the Attorney noted, we are fortunate in this State to have a Court of Appeal with an enviable record for prompt delivery of judgments of the highest quality, and the bar has no doubt that your Honour’s appointment will promote that record.

Finally, may I mention the coincidence that, your Honour’s appointment a judge of appeal has ended your Honour’s decade of service in the trial division of this court , thus rather neatly leaving, as the law stands, another decade until, statutory senility.

In the interests of self-preservation,  I distinctly emphasise the word “statutory”.

The bar congratulates your Honour upon this further and very fine achievement in an already remarkable legal career.

Your Honour Justice Daubney

A delightful result of your Honour’s acceptance of this well-merited appointment was to give me the great privilege of speaking on behalf of the bar to express our pleasure and pride in that same appointment.

But when you sat in court during yesterday’s District Court ceremony, perhaps you had mixed feelings about the wisdom of contributing to this result, as you watched me mercilessly and shamelessly thieve much of your polished speech for that ceremony, only to tarnish it with only a few words and anecdotes purloined from others.

Even, worse, I failed to deliver the speech, as you doubtless would have done, in song or verse.  There is, however, only one “Daubs” — as your Honour once was.

If you do have mixed feelings about your appointment, you are not alone. On the one hand, the Bar has lost a natural leader of the profession, and one who distinguished it and himself in it. We are sad to lose you from our ranks. On the other hand, our loss is the community’s gain.  And your Honour’s talent and character have justly been recognised. Perhaps I should rather say, as you must often have said in your numerous mediations,  that this is a “win — win”.

The Bar is naturally proud that a serving President of the Association has been appointed to this very high office.

But the strength of our welcome is based also on other, firm foundations.

Your Honour excelled as a barrister. You earned your large and diverse practice at the bar, including a significant commercial practice, by dint of natural ability, a personality, presence – and voice – inherently designed to produce an advocate, and sheer hard work.  Somehow, mysteriously, you fitted that large practice in with your demanding professional and community service commitments.

In that respect, it is worth recalling that you have been as great a servant of the Bar as you have been a leader of it, having served for more than a decade on the council of the Association, first under Hampson QC as President and then with all succeeding Presidents until you assumed that office yourself last year. We do not forget your years of active participation in management of the Bar Practice Course and on the Legal Practitioners Admissions Board, and in many other roles.

There have, of course, been some lighter moments. In fact, in preparing these words, I had no shortage of material. It has to be said that your Honour has sparked more anecdotes and material for a speech than your Honour has had hot dinners. We are here talking very large numbers indeed.

Many of those stories stemmed from your Honour’s distinctive style, particularly in mediation or negotiation. For example, I recall one particular case in which a junior barrister in the room next to mine was opposed to you in a case in which you had been briefed very late. This barrister rang you in your 15th floor chambers, where you were then in conference with your client and solicitor. The junior enquired whether your client insisted on pursuing some pointless application, or might be amenable to a reasonable settlement. This junior reported as much to me in my room a couple a floors above, and added that we should both walk to my window facing George Street and look out for a few minutes.

This struck me as a little curious.

I enquired further.

Your response to the junior’s enquiry about settlement apparently went like this:

“Go to a window on George Street overlooking mine and look down. I will have obtained instructions to settle if, in the next 3 minutes, you don’t see the bodies of my client and instructing solicitor plummeting to the ground”.  

In a similar vein, unless one has seen your Honour, as a mediator, demand to speak to a insurer’s powerful, but recalcitrant, clerk buried somewhere deep in a London office, it might be thought inconsistent with the laws of nature that such a being could be reduced to a quivering wreck from 12, 000 miles away, merely by the judicious use of a telephone.

Your Honour had a huge appetite for work.  But, it has to be said, not only for work. If, however, the court looks forward to the benefits of your famous catering skills for any length of time, may I offer a friendly word of warning? During the lengthy racing enquiry, your Honour’s firm lunch order of the “health food option” was understood by all to refer to a hamburger with the lot and a chocolate shake.

You also resisted, again until recently, most passing fads  – in which category you apparently included gratuitous exercise. It is true that at one time you engaged a personal trainer.  This was not an unqualified success – possibly because the trainer held the quixotic view that the benefits of a brisk walk along Coronation Drive were outweighed, as it were, by your insistence on frequent stops for cigarettes.

The references in your Honour’s commission to loyalty, learning, integrity, and ability are no empty sentiments. You have earned your high reputation for each of those vital judicial attributes in the daily course of your life, both professionally and in the broader community.

Your professional and personal achievements have been given in more detail by the Chief Justice and by the Attorney. Those qualifications for this office speak for themselves. Perhaps what is less widely known outside your immediate circle of family and friends is your Honours’ empathy and compassion for those in special need. Your door was always open to those seeking counsel or comfort, as has been attested by messages I have received about this since the announcement of this appointment.

Your Honour’s faith, and your positive encouragement of others to help those in need, for example in the tragedy that befell the late Gavin O’Sullivan and his family, and your leadership in assisting the Bar in its collective determination to offer practical assistance in that and other cases, has been an example to us all. 

On a personal note, I have greatly appreciated and enjoyed working with and learning from your Honour on the Council, and especially in my recent role as Vice President whilst you led the Association with distinction.

…

Justice Helman

We also acknowledge with gratitude the long and valuable service of Justice Helman on this court, and sincerely adopt the Chief Justice’s valediction.

….

To both of your Honours Justice Muir and Justice Daubney:

Your Honours and your families are entitled to savour this occasion. The Bar shares in your enjoyment and in this recognition of both of your Honours’ milestones in your legal careers. We wish you very well in these new roles.

Though I’m sure that neither of your Honours needs this assurance, the Bar offers each of you its full support in the important work of the court.

May it please the court.

Hugh Fraser QC

President