Swearing In Ceremony of The Honourable Anthony Gerard Whealy
SPIGELMAN CJ
AND THE JUDGES OF
THE SUPREME COURT
SWEARING IN CEREMONY OF
THE HONOURABLE ANTHONY GERARD WHEALY
AS A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES
WHEALY J: Chief Justice, I have the honour to inform you that I have been appointed a Judge of this Court. I present to you my Commission.
SPIGELMAN CJ: Thank you, Justice Whealy. Please be seated whilst the Commission is read. Principal Registrar, would you please read the Commission
(Commission read).
Justice Whealy, I ask you to rise and take the oaths of office; first the oath of allegiance and then the judicial oath.
(Oaths of Office taken).
Principal Registrar, I hand to you the oaths to be placed amongst the Court's archives. Sheriff, I hand to you the Bible so you may have the customary inscription inserted in it in order that it may then be presented to Mr Justice Whealy as memento of the occasion.
Justice Whealy, on behalf of the Judges of this Court, and on my own behalf, I welcome you as a member of this Court. Your Honour has for many years been Senior Counsel for this State and has contributed to the development of the law in this State in and I look forward to many years of service with you on this Court.
MS RUTH McCOLL SC, PRESIDENT, NEW SOUTH WALES BAR ASSOCIATION: May it please the Court. It is my honour to appear on behalf of the New South Wales Bar today to welcome and congratulate your Honour on your appointment to this Court.
You come to this Bench with the unique distinction of having already been the subject of a ceremonial sitting of a Court in celebration of your appointment.
Only six weeks ago, the Licensing Court of New South convened a ceremonial bench to farewell you, not as a member of its bench, but as the eminent practitioner in that jurisdiction.. It is rare, indeed, for a person in my position to be able to read, in effect, a dress rehearsal of this morning and to find such an abundant richness of source material.
However, to start at the beginning. Your career as an advocate started in school debating. You were captain of the Senior Debating Team at Riverview in 1958 and 1959 in each of which years you were the winner of the Laurence Campbell Trophy. In those years you argued against the proposition "that a thing of beauty is a joy forever" and that "love makes the world go round." From all that is said about your Honour, it is unlikely that your heart was in either topic. It is a tribute to your early skills as an advocate that your team triumphed on each occasion.
You studied Arts/Law at the University of Sydney. While undertaking your studies, you did articles at Murphy & Moloney during the period Murray Gleeson was the senior articled clerk at the same firm.
The seeds of your future were sown during your time at Murphy & Moloney. That firm acted for Cahills, the restaurant chain, and you engaged in work on their behalf seeking liquor licences throughout the length and breadth of this State.
After you graduated you joined Freehill Hollingdale & Page where in your final year as a solicitor you worked in the liquor licensing area with Mr Tom Jones. It was Mr Jones, apparently, who sagely advised you that you would be better off as a barrister than a solicitor. It was good advice. Mr Jones proved his faith in you and has continued to brief you to this day.
You were admitted to the Bar on 4 June 1971. You joined the fifth floor of Wentworth Chambers where you remained until your appointment. You were the leader of the floor at the time of your appointment.
You read with Murray Gleeson. In your early days, your practice, as would befit one reading with Gleeson, was broadly distributed through commercial, equity and common law.
Gradually your work became more concentrated in the licensing area. You appeared with notable success for the late Claude Fay and the rest, as they say, is history. This does not mean you spent the rest of your career in the Licensing Court. Your work there took you to such lofty climbs as the Privy Council, the High Court and the Court of Appeal.
I think I can say, without committing an indiscretion, because I am quoting from your speech at the ceremonial sittings of the Licensing Court, that you took silk in 1984 with the intention of trying to broaden your practice. That, of course, did not occur. Instead you got even more work in the liquor licensing jurisdiction that you could have imagined was available. Such was as inevitably going to be the case for a counsel whom solicitors and clients alike perceived to be the master of that universe.
It is hardly surprising that your Honour was a success.
Your Honour's style has been characterised by manifest civility and courtesy to the bench, to fellow practitioners, to clients, and to court staff. That elegant style conceals exceptional court craft. You have been described as a most dangerous of opponents, intelligent, far-sighted quick-witted and as having an ability to put outrageous propositions in a very appealing manner. Another describes you as a "brilliant tactician blessed with a wonderful turn of phrase." You were always fully conversant with the law, yet to some your success appeared to be achieved with what one peer described as an economy of effort. Another former colleague described your style as "laid back."
You did "break out" of licensing work at one stage. You were an acting District Court Judge between 1988 and 1991. It might be noted that appeals from your Honour's judgments were singularly unsuccessful. You also served as a member of the Legal Services Tribunal between 1995 and 1997 and again in 1998.
Your fellow practitioners say that there is no doubt that you will bring to this jurisdiction your sound common sense approach of the application of the principles of law. You will focus on the essential rather than getting caught up in the minutiae. You will apply your great capacity for decision making and your intellectual courage to the problems which come before you. One of your recent submission to the Licensing Court was, "The Court should not be gulled by forensic tactics."
Those who appear before you would do well to recall that you will no doubt view all submissions in that light.
You are known as a compassionate man with a great understanding of human frailties. Although it may make some insurers uncomfortable, it should be noted that you are a tremendously generous person.
At the ceremonial sitting you gave an insight to your approach to fellow practitioners. It bears repetition. You said:
"Try to be a gracious winner - because it is easy to perhaps be gracious when you win - but also try to be a good loser. Our clients aren't always right. We do the best for them but we can't always win."
The generous spirit inherent in those words have epitomised your Honour's approach to your career. They have stood you in good stead if the high regard in which you are held is any measure.
Your Honour, if you bring but a few of the qualities for which you are so highly praised by all before whom you have appeared and with whom and for whom you have conducted appeared, this Court will be well served.
We wish you a happy and successful life on the Bench.
May it please the court.
MR J F S NORTH, PRESIDENT, LAW SOCIETY OF NEW SOUTH WALES: May it please the Court. Chief Justice, your Honour Justice Whealy, your Honours, ladies and gentlemen. On behalf of the solicitors branch the profession, I congratulate your Honour on the occasion of your appointment to the Bench of the Supreme Court.
Your Honour comes to the Bench with a notable academic record behind, you, having studied the demanding disciplines of the classics and of the law, coupled with an extensive litigation experience since you were called to you Bar in 1971.
Your Honour was educated at St Ignatious College, Riverview, and as the President of the Bar has said, you achieved considerable success as a debater, winning in the final year the debating competition once again. I might note that it was the solitary success of the year and your rugby prowess was to little avail.
You then undertook your tertiary education at the University of Sydney in which you graduated in law acquiring on the way, so I am told, a love of classic automobiles.
Importantly, you were admitted to practice as a solicitor, proctor and attorney of this Honourable Court in 1966 and were employed first by the firm of McHutchinson Kessel & Co. From there you moved to Freehill Hollingdale & Page, working with legendary partners such as Brian Page and John Rothery. You quickly demonstrated an aptitude and skill in the area of liquor licensing. There is no doubt the trying and testing experience in your Honour having to spend so many hours engaged in convivial consultations with those in the liquor industry.
You were subsequently called to the Bar of the Supreme Court in 1971 where your humour, talent and capacity for hard work quickly became recognised and you established a substantial and extensive practice, particularly in the area of licensing law, where you have been regarded, quite rightly as a guru but also in the Common Law and on occasions in the Equity jurisdictions.
You took silk as a relatively young man in 1984. Your commitment to the law is enhanced and supported by your charming wife and your three children, and you can see by the number of people here today, your Honour, how proud they are of you.
In the eyes of the solicitors of New South Wales, your Honour has the ability and experience for the new judicial role upon which you now embark.
Your appointment as a judge of the Supreme Court confirms the great confidence we share in your qualities and abilities.
On behalf of the solicitors of New South Wales, I congratulate you on your appointment and wish you many satisfying years on the Bench.
As the Court pleases.
WHEALY J: Chief Justice, your Honours, Ms McColl, Mr North, members of the profession, ladies and gentlemen. First of all may I say how honoured I am that the Chief Justice of the High Court and Justice McHugh are here today. Their presence is a great satisfaction to me.
Mr North, may I say to you how pleased I am to hear you speak on this occasion, particularly as I knew your father very well and worked with him on a number of licensing cases in Dubbo and enjoyed the hospitality he and your mother offered on many occasions.
At the outset may I thank those who have made mostly kind, and occasionally not so kind, remarks about me. I appreciate very much all that has been said.
This is a special day for me. The Judges who sit beside and behind me, depending perhaps on their years of service, may have seen and heard it all before. As Justice Mahoney said to the then Chief Justice on his retirement:
"You and I have been friends too long, Chief Justice, not to be a little cynical about what is said on occasions such as this."
I would like, for my part, to suspend such cynicism, because this day does mark a very special event in my life.
There are two obvious reasons; first I leave my practice as a barrister after nearly 30 years. Secondly, I take up public office and embark on a new and challenging career.
I have no doubt and no illusions that at times it will be difficult and not without its frustrations and annoyances. However, I look forward to it with a great deal of enthusiasm and anticipation.
I am particularly pleased to have present here today so many of my family, close friends, colleague and floor friends to share this special day with me.
I would just like to reflect briefly on the events which have brought me to this day. I owe a great depth of gratitude to my mother and father whose significant sacrifices gave me the benefit - one denied to them - of an extensive education at both school and university level. At the time of the announcement of my appointment, my mother having died only a few years ago, my sister remarked to me that my mother would have been very proud of me and I too would have been proud had she been able to be here.
My mother was one of some 11 children who lived in a small semi-detached cottage in Kent Street, Sydney. They were a poor family and not well educated. My mother said to me, however, that my grandfather, whose name was Joseph Patrick McGrath, may well have been the Lord Mayor of Sydney had it not been for his alcohol problem. Perhaps at that stage, subconsciously I decided to do some work in the field of liquor law.
It was my parents who introduced me to Gerald Wells, who was then the senior partner of Murphy & Maloney and I took up my position as an article clerk with that firm, after I had finished my Arts Degree at Sydney University. I worked in the famous "Blue Room", a large and singularly unattractive room at the rear of the firm's offices in Temple Court in Elizabeth Street. It was normally inhabited by five or six article clerks and a supervising managing clerk. Its luminaries included, at different times, a very good friend of mine, the late John Ward and the present Chief Justice of the High Court of Australia. Indeed, I inherited his dictating machine when I joined the "Blue Room" as he, as I recall it, had in fact gone to the Bar some months earlier.
In my first year as an article clerk I was responsible for more than 100 conveyances in the Weemala Estate at Bankstown on behalf of L J Hookers. This engendered in me an enduring dislike of conveyancing. In fairness, I think there were some early indications that I was unlikely to succeed as a solicitor. My first conveyance was one when I proudly reported back to my master solicitor, not only with the Title Deeds, but also with the cheque for the purchase money. It seems that the even younger article clerk on the other side of the transaction knew a little less than I did about the proper method of concluding a legal conveyance.
In due course, I moved on and came to one of the other great Catholic firms in the 1960s - it could hardly be called that today, I think - Freehill Hollingdale & Page. It was there I met and came under the influence of Brian Page and John Rothery, as has been mentioned and, ultimately, Mr Thomas Owen Jones, who is present here today. It is a great honour for me that he is here today. He was a solicitor who has had a great influence on my career and he has continued to brief me up until 12 March 2000.
It was he who introduced me to the vagaries of the Liquor Act 1912. It is appropriate to mention that a number of my colleagues at the Bar came from the same stable. These included Stephen Austin QC, John Timbs QC, Cliff Hoeben SC, Geoff Lindsay SC and, of course, Justice Greg James, who was even more puzzled than I by the provisions of the Liquor Act and, therefore, devoted his later life mainly to crime. I should also mention the late and lamented Frank Nugan, who was at Freehills when I was. The only Ex-Freehillian, so far as I know, who has been exhumed - to this point of time
I came to the Bar in June 1971. It was one of my parent's friends again who found a place for me as a floater on the fifth floor Wentworth Chambers. This was John McKeon, and ex-barrister and Judge from that floor who introduced me to Edgar Marks, one of the great old clerks of the building who took me under his protective wing. I read with Mr A M Gleeson and I learned a great deal at his side.
I would like to dispel some of the rumours that have been put forward about our present Chief Justice. I had the privilege of being in his room on many occasions and I formed a view that he treated all of his instructing solicitors with the utmost courtesy and civility and there was none of the alleged conduct which has led to some less than amusing remarks from his contemporaries. There was, however, one conference I well recall. This was a particularly gruelling conference. Our client, who was then the Chairman of the Sydney Stock Exchange, had a heart attack at the end of the conference and was taken by ambulance to St Vincent's Hospital. Over a small whiskey, later that evening, Mr Gleeson informed me that he thought it had been a most productive conference.
I remained on the fifth floor for nearly 30 years and it became my second home. After David Bennett took up his position as Solicitor General, I was privileged to take over as leader of the floor. I carried out that task and enjoyed it greatly over the last two years. From a floater on the floor to floor leader in 27 years; hardly a mercurial rise, you may think, but one of great satisfaction nevertheless.
The fifth floor has a colourful and strong history. It, or its predecessor, the fifth floor Chalfont housed such greats as Barwick and Cyril Walsh. When I joined it there was a great variety of diverse talent - McGregor, Campbell, Foster, Davoren, Knoblance, Langsworth and D E Horton and the O'Mealleys, amongst others. Helsham had joined the Equity Bench only a year or so earlier. It was a floor whose composition changed significantly over the years. It has been graced by David and Annabelle Bennett for more than 16 years. Our present Chief Justice was a member of that floor for a relatively brief period of time. Its present structure is again one of great variety and strength. It distinguishes itself from other floors, in my opinion, by the overwhelming sense of friendliness and goodwill amongst the men and women who now inhabit it. It has lost none of its sense of history and continuity. It is in good hands with John McCarthy as new floor leader, John Sheahan as floor secretary and Karen Walker-Flynn as our clerk.
I would like to take the opportunity to pay attribute to four women who, at a professional level, have played a very significant part in the advancement of my career. First, my secretary, Letitia Tomkins, who worked with me for 10 years. Her bright and attractive personality secured me many a brief, particularly from the younger male members of the solicitors' branch of the profession. I think it is also fair to say that many juniors approached me to see whether I would lead them and I am certain that it was the attractions of the outer office of my chambers, rather than any forensic skill that I possessed, which bought them to my rooms.
I very much appreciate the fact that she has come down from Port Macquarie with her young daughter for this ceremony.
Next, my present secretary, Cecilia Cordova, and her predecessor, Ciana Goodwin, who carried on the good work where Letitia had left off. Each by her hard work managed to portray me to the outside world as a model of organisation, whereas the truth was probably quite to the contrary.
Finally, may I mention my clerk, Karen Walker-Flynn, whose loyalty and diligence, more so than ever in the last few months, has been outstanding.
Throughout much of my career, I have been a specialist practitioner in the Licensing Court of New South Wales. To the outsider, the Licensing Court must appear, as do many specialist jurisdictions, as a slightly bizarre, secretive, clannish organisation, whose rituals and practices remain a mystery. In truth, the Licensing Court is a small specialist court doing important but relatively unheralded, work in the community. It is a court which often deals with the public face to face. At the same time, it is a court which has to make sensitive and sometimes harsh judgments, either for or against the commercial interests of significantly wealthy groups. It is exhorted to, and does in fact, act with the with the public interest uppermost in mind.
There are three things I would like to say about my years in this specialist field. First, after several years of a very varied junior practice, I did make a conscious decision to embrace a specialist area of work. There is no doubt that financial reward was one of the motives which moved me to that decision. But, more significantly, was the recognition I had at that time of the strain a busy and varied general junior practice might have on my relations with my wife and family and on the advancement of my own personal interests. Working seven days a week is not necessarily a great recipe for success as a husband, father or person wishing to develop his for her interests in the wider field of learning or advancement as a human being.
So, it was a decision which, in fact, gave me greater time to enjoy pursuits, which everybody knows I hold very dearly.
Secondly, when I took silk in 1984 it was with the best intentions of endeavouring to widen my field of practice. It was not to be. Despite my best endeavours, I know not why, but I became even more sought after as a specialist silk in licensing matters.
Thirdly, having accepted that situation, I must say that I have enjoyed myself hugely, particularly in the last 10 years, where there has been a rich abundance and diversity of work within the specialist jurisdiction.
I would like to pay a particular tribute to the members of the Licensing Court who have honoured me with their presence here today. This court has displayed itself as a model of fairness, courtesy and patience and I would be very pleased, if as a judicial officer in my future life, I am able to reflect the example I have been shown by the men and women of this specialist Bench.
Finally, Chief Justice, I come to my friends and family. Many of the former are, of course, my professional colleagues and clients; others are life-long friends, some of whom have come from as far afield as Melbourne. To all those I extend my deep and abiding thanks for their loyalty, support and friendship.
So far as my family is concerned, they are here today; my brother, sisters and their partners; my wife's brother, sister and he husband; my wife's mother who has encouraged me in my career since I was a young man; our aunts and uncles, nephews and nieces; there are also my cousins at first, second and third level removed.
I read with a great deal of interest and affection the speeches by Justice Bergin and Justice Bell last year, where each stressed the importance of family. I think I may have outdone them numerically today, in relation to the number of family in attendance, but at the end of day it is a question of quality of family influence and as each of those judges said at the time, it is a very sound start to one's career as a judge to have come from a stable and loving family relationship and I am very grateful for all the members of my family, at the smaller and wider levels, for their presence here today and for all they have done for me.
It is customary for a newly appointed judge to reflect on the fact that the Bar is a hard taskmaster and to tender sincere apologies to his wife for the deprivations thus visited upon her during life at the Bar. I must take the opposite course today. The truth is that my wife and I have enjoyed enormously our time together while I have been at the Bar. We have travelled widely. We have enjoyed a rich cultural life and the rewards of practice have enabled me to cover her, if not in glory, at least with the latest Italian and French fashions on a lavish scale.
So it is, I must tender my apologies to my wife, Anne, not for my time at the Bar, but for the comparative penury I am about to visit upon her in my new career. This she understands well, and accepts, if not with a good grace, then at least graciously.
I trust, Chief Justice, you will not mind if I dwell upon one personal reflection; at the time I received the note from the Attorney General, we were, as it always seems we are, on holidays and my wife said to me, "This is the news I never wanted to have." It was, for example, only two weeks ago in fair Verona, near the Roman arena, that I broke the news to her that her first joint conference with me as a Judge's wife was scheduled to take place in Brighton le Sands.
She has been, however, a wonderful companion and support for me, and I thank her very much. I am also pleased to have my three children with me here today. I am very proud of them all. I know I have the confident support of each of them out in the decision I have made to embrace this new life.
I am most grateful to all who have honoured me today with their presence at this ceremony. I shall do my very best to respect the confidence you have all placed in me by doing my work as a judicial officer to the utmost of my ability. Thank you.
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