Supreme Court of Tasmania

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Special Sitting of the Supreme Court of Tasmania, 26 November 2004

Speech by the HonourableJustice Peter Underwood, farewelling the Chief Justice William John Ellis Cox

(Also printed in Tasmanian Reports (2003-2004) Tas R v)

On 4 September 1995, Chief Justice William John Ellis Cox was appointed Chief Justice of this Court, the oldest Supreme Court in Australia. He has just advised us that at the close of business on 1 December this year he will resign from that office in order to take up the office of Governor of this State. It is a great tribute to him and his tenure in that office that so many have gathered here this afternoon at this special Sitting to mark the occasion of his Honour's retirement from the Bench. In that respect I would like to especially welcome the Chief Justice of the Federal Court, Justice Michael Black, a former Chief Justice of this Court Sir Guy Green, a former judge of this Court, the Honourable Mr Cosgrove and Justice Hannon of the Family Court.

On the first Monday in March exactly fifty years ago, three fresh-cheeked young men sat down together for the first time in Room P in that building on the Domain which I think is now used by TAFE, but which was then the Law School of the University of Tasmania. All three graduated on the same day 5 years later and thus began the legal careers of the former Chief Justice and former Governor, Sir Guy Green, Chief Justice and Governor-to-be Bill Cox and Peter Underwood. Two of the three were very good students, although I can say with confidence that neither of those two were adverse to a few extra-curricular activities. However, prudence dictates that I not pursue this aspect of the learned Chief Justice's history, notwithstanding section 11 of the Defamation Act, which provides that a person does not incur any liability for publishing defamatory matter in the course of a proceeding held under the authority of a court of justice. For myself, suffice to say that if the Old Nick Company had been a degree course, I would have graduated with first class honours!

Chief Justice, in the pursuit of your career in the law, you have served the State of Tasmania well. Following your admission to the Bar in 1960 you practiced law at Messrs Dobson Mitchell and Allport for some 15 years, first as an employee and then as a partner. Early on, it was clear that you were suited to life on the Bench, for you were appointed a magistrate in 1976 and held that judicial office until you became Crown Advocate, the precursor of the Office of the Director of Public Prosecutions. You took silk in 1978 and were sworn in as a judge of this Court in 1982. In so doing you followed in the footsteps of your father, who was a respected judge of this Court in the 1960's.

Throughout your long and distinguished time on the Bench, your judicial demeanor has always been an exemplar for all judicial officers to follow. You are noted for the patience, courtesy and respect that you consistently extended to all who appeared before you. As Chief Justice you led the Full Court and Court of Criminal Appeal, frequently writing the leading judgment. Those judgments, and those that you wrote when sitting alone, will stand for many years as models of good judgment writing. They exposed your reasoning on matters of fact and law with an admirable clarity that I always thought was a tribute to the enviable classical education you received at school. Importantly, you always confined your judgments to that which was necessary to decide the justicable issues that were raised for your determination and never succumbed to the temptation to use the judgment as a platform for expressing some personal point of view about a matter.

The Chief Justice of Australia has said that it is the duty of all judges to uphold the independence of the judiciary. You have discharged that duty in full measure. As Chief Justice, you never forgot the significance of fundamental principle – that the Court is a constitutional arm of government and that it must exercise its functions free from interference and influence from the other arms of government. It is easy for this important principle to be eroded, usually by neglect rather than by malevolence, to the cost of a free democratic society. As leader of this Court you made sure that all those in the other arms of government were aware of, and accepted, this basic principle. The importance of your contribution in this respect cannot be underestimated and on behalf of our community I thank you for that contribution.

You have, of course, served your State and your country well in many other respects. I have no doubt that others will refer to these diverse aspects of your career, both in and outside the law, so I will not dwell on them myself, but on this occasion I would like to refer to the fact that you gave your country faithful service as a member of the Army Reserve from 1954 – 1975. During that time you saw active service in Vietnam with the 4 Field Regiment, Royal Australian Artillery based at Nui Dat. You later became honorary military ADC to the Governor and ultimately reached the rank of Lieutenant Colonel and were appointed commanding officer of the Sixth Field Regiment Royal Australian Artillery.

It is fitting that you should go on to the highest office in the State. All those who know you are confident that you will discharge the duties of that office with the same integrity and impartiality that attended your duties as Chief Justice of this Court. Although I have to declare a personal interest in your vacation of the office of Chief Justice, any regrets or sadness that may arise by reason of your departure from the institution to which you have contributed so much for more that 22 years, is more than offset by your appointment to the highest office in the State. You follow in illustrious footsteps, for you are the third Chief Justice to become Governor of Tasmania.

Your brother judges thank you for the dedicated service that you have given this Court over the years that each has shared this Bench with you and wish you well in your new duties.