Appointment of Justice Estcourt

Appointment as Justice of the Supreme Court of Tasmania

8 April 2013

ESTCOURT J: I have the honour to announce that I have received a commission from his Excellency the Governor this morning appointing me a judge of the Supreme Court. Mr Registrar, let the commission be read.

REGISTRAR: Elizabeth the Second by the Grace of God, Queen of Australia and her other Realms and Territories, Head of the Commonwealth.

To All whom these presents shall come – Greeting:

Whereas a vacancy has been created on the Bench of the Supreme Court of Tasmania by reason of the appointment of the Honourable Justice Alan Michael Blow, holder of the Medal of the Order of Australia, a puisne judge thereof as Chief Justice of Tasmania and it is expedient to fill such vacancy: Now Know Ye that We, having taken into our Royal consideration the loyalty, integrity and ability of our trusty and well beloved Stephen Peter Estcourt, do nominate and appoint him to be a judge of the said Court with effect from the 8th day of April 2013 to have hold exercise and enjoy the said office and place of puisne judge according to law together with all rights, profits, privileges and advantages thereunto belonging or appertaining: provided that the said Stephen Peter Estcourt shall actually reside within Our said State of Tasmania and shall execute the said office in his own person except in case of sickness or other incapacity. In Testimony Whereof we have caused these Our Letters to be made patent and the public seal of Our said State of Tasmania and its Dependencies to be hereunto affixed.

Witness Our trusty and well-beloved the Honourable Peter George Underwood, Companion of the Order of Australia, Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia at Hobart in Tasmania this 4th day of March 2013 and in the sixty second year of our reign.

Signed by His Excellency’s command Brian Wightman, Attorney General, signed Peter George Underwood, Governor.

ESTCOURT J: Yes, thank you. Mr Attorney?

ATTORNEY GENERAL: Your Honour, it is my privilege and pleasure today to extend to you the congratulations of the Government and the people of Tasmania on your appointment to the Bench. You have achieved an esteemed position in Tasmania’s justice system, your colleagues here today who have known you for a 37-year career as a barrister and solicitor and as a member of the independent bar will attest that your dedication to your work is of the highest order.

Your career in the law has been diverse and has equipped you very well for judicial office. If I may I will briefly outline your professional background – briefly it says in my notes, your Honour. You graduated from the University of Tasmania and were admitted to the degree of Bachelor of Laws with Honours in 974. Following admission as a practitioner of the Supreme Court of Tasmania and the High Court of Australia in 1976, a popular year, you were employed by and then became partner in the Launceston firm of Archer Hall Waterhouse and Campbell subsequently known as Archer Bushby.

You were a member of that firm for 14 years or so until 1990 where you practised extensively in civil and criminal litigation and in town planning and local government law. In fact your first foray into judicial decision-making occurred between 1982 and 1984 when you were appointed as alternate chairperson of the then Planning and Appeal Board. You are no stranger to judicial decision-making.

Such experience stands you in good stead for the position to which you have now been appointed. Many will recall that you have previously been appointed a magistrate serving in Hobart for four years between1990 and 1994 and then as chairperson of the Resource Management and Planning Appeal Tribunal in 1994, 1995. You have also been deputy president of the Administrative Appeals Tribunal of the Commonwealth between 2001 and 2004 and chairperson of the Medical Complaints Tribunal between 2008 and 2010.

In 1995 you moved to the Tasmanian Independent Bar practising as a barrister in civil and criminal trials and the appellate jurisdictions of the Supreme Court of Tasmania and the Federal and High Courts of Australia. In 2003, 2004 you were convenor of the Tasmanian Independent Bar and served as president of the Tasmanian Bar Council between 2004 and 2007. You have practised your profession with such distinction that you were appointed one of Her Majesty’s counsel in 1998.

You also practised further afield when you were admitted as a practitioner of the Supreme Court of Victoria in 2004, joined the Victorian bar and took chambers in Melbourne while also maintaining chambers in Hobart. Like so many of those elevated to judicial office you too have accepted the duty to put something back into the legal profession during your career. The list of your contributions in this regard is impressive.

You were a member of the council of the Law Society of Tasmania for nine years including serving a term as president in 1998, 89 (sic) you were a member of the committee of the Tasmanian Bar Association between 1999 and 2003 and from 2006 to 2008 you held the national position of President of the Australian Bar Association. You were a member of the board of legal education for 14 years from 1993 to 2007.

In more recent times you have been appointed as chair of the Legal Professions Disciplinary Tribunal and a commissioner of the Legal Aid Commission of Tasmania. You have contributed to promoting the jurisprudence of Tasmanian case law by variously holding the positions of editor 2011 to 2013, and assistant editor 1986 to 2000 of the Tasmanian State Reports. In 2012 you were appointed as a member of the Council of Law Reporting for Tasmania.

Like many previous eminent lawyers appointed as judges you have accepted the professional obligation of teaching the law to those less experienced in its ways. As far back as 1977 you were lecturing students on the Launceston campus of the Tasmanian College of Advanced Education in the subject of introduction to law. In 1983 on the same campus you were lecturing in planning law to students in the graduate diploma of town planning course, and more recently your skills in teaching advocacy have been utilised at the Centre for Legal Studies at the Australian Advocacy Institute and as a member of the Australian Bar Association’s advocacy training council and culminating in your appointment as a fellow of the Australian Academy of Law in 2011.

Your reputation for working often on a pro bono basis to protect the civil rights of your clients who are often in a position of disadvantage is well known. Many immigration cases in the High Court and Federal Court in which you have appeared are testament to that fact. Your interest in upholding the rule of law no matter who the parties are without fear or favour will equip you well in your judicial duties.

From the long list of achievements to which I’ve referred it is clear that you have enjoyed a long and distinguished career in the law as well as a broad experience of life. In combination these qualify you well for the important role you are now to play. With your wide knowledge of the law, your extensive experience and sound judgment there is no doubt, your Honour, that you will carry out judicial duties with skill and integrity. I congratulate you on your appointment and I’m confident, your Honour, that as a judge of this Court you will enhance the Court’s reputation of fairness, independence and humanity. If your Honour pleases.

HIS HONOUR: Yes, thank you. Mr Mihal?

MR MIHAL: May it please, your Honour. It’s my great pleasure and privilege to congratulate your Honour on your appointment to the bench on behalf of the Law Society of Tasmania. As a practitioner your Honour was intelligent, fastidiously organised and well prepared. In preparing for today I spoke to many of your colleagues, particularly those from your days in Launceston who spoke of you with great warmth and I hope to convey some of that feeling today.

I wish to begin however on a more personal note: your Honour and I were fortunate to have been able to attend the same schools. Although 30 years separated our attendance at New Town High School your Honour was remembered. I recall that your Honour’s name was brought up in discussions in the context of careers and you were held up as an example of a former student who had excelled in his career.

I think that the other examples were all football players; suffice it to say that I am not now playing full forward for the Collingwood Football Club. After your Honour completed university you were drawn to Launceston as many young practitioners were because of the quality of the mentorship that was on offer there, in particular your Honour thought that Peter Cranswick QC was somebody worth emulating. Your Honour was of course right.

Your Honour quickly built up a formidable practice in criminal and civil litigation and it was not long before the draw for countless young practitioners to the north of the state was the possibility for your Honour’s mentorship as well as that of other similarly regarded and highly capable practitioners who were your Honour’s contemporaries and friends there especially your then partner and now Justice David Porter QC, Tim Ellis SC and the legendary late John Kable QC. Launceston was the place to go for the young practitioners interested in litigious practice.

As we heard your Honour commenced practice at Archer Hall Waterhouse and Campbell in Launceston and became a partner of that firm just a year after your admission. Right from the beginning of your career your Honour was generous with your time and made yourself freely available to help other practitioners both from inside and outside your Honour’s firm. Your Honour would see any practitioner with a problem immediately, putting down your pen, almost always a Mont Blanc I’m told, giving all the time required to sort the problem out and that particularly applied to young practitioners many of whom you also entertained in your Honour’s own home in Trevallyn.

Your Honour’s love of good food and fine wine was and remains well known. Lesser known is your talent and capacity for cooking magnificent food without facilities and in remote locations. One of your Launceston colleagues recalls being on the summit of Mount Eliza as the sun was setting over Lake Pedder being served by you a perfect a soufflé that your Honour had cooked on a bushwalker’s stove together with fresh zucchini and tomato.

As we’ve heard your Honour’s made a significant contribution to the legal profession. I point out once again that your Honour has served as a member of the Law Society’s council from 1980 until 1988, and was president of the society in 88, 89. You continued to serve to the society thereafter in many different capacities. Your most recent contribution began last year when you were appointed a commissioner of the Legal Aid Commission of Tasmania as one of the society’s nominees, one of the two nominees.

This demonstrates your commitment to your profession and professional responsibilities, your commitment to justice and your commitment to social justice that you have demonstrated throughout your career. Your talents outside the law have also allowed you to make other contributions to the legal profession and the wider community. A lesser-known example perhaps now was that when you were a partner or Archer Hall Campbell and Waterhouse in the early 1980s you briefed and worked with a Hobart architect to resurrect a historic Launceston building which had fallen into dereliction.

It was the National Estate-listed 1890s Telegraph Printery building which engulfed an earlier 1840s church. The building was not only preserved but recycled to accommodate the offices of your firm and that was still innovative at the time – you engaged the same architect to make changes to accommodate the firm when it expanded after amalgamating with Bushby Taylor and Griffiths to form Archer Bushby and that firm remains accommodated in that building.

The building won architectural awards including the inaugural Royal Institute of Australian Architects Henry Hunter Award for Conservation. There are echoes of that achievement in your Honour’s more recent gift to the profession the resource for continuing legal education that is the Derwent and Chambers web site. Your Honour, together with a member of your chambers engaged a young web designer whose partner at the time happened to be a practitioner practising in Devonport.

Many of the design ideas and the content for the web site came from your Honour. The result is featured on Site Inspire, a web site that showcases innovation in fine web design from around the world. Your Honour has used social media to communicate about your continual contributions to the web site and your thoughts more widely. Your most recent posts show that you have approached your appointment with much personal reflection.

For example you posted a link to an article on recently retired High Court judge Dyson Heydon’s warning about the dominant judicial spirit being judges who bully weaker judges on Appeal Courts and counsel into a preferred direction. Your Honour can be assured that if you maintain the values on the bench for which you are well known and respected throughout the profession you will not be susceptible to either being overborne or overbearing. I warmly congratulate you on your appointment. It is welcomed by the profession. May it please the Court.

HIS HONOUR: Mr McTaggart?

MR McTAGGART: If it please. It’s my pleasure to welcome you as a judge of this Honourable Court on behalf of the Tasmanian Bar. You joined the Tasmanian Independent Bar in 1995 after a lengthy, distinguished career as a barrister and solicitor, magistrate and inaugural chairperson of the Tasmanian Resource Management and Planning Appeal Tribunal. You were appointed Queen’s Counsel in 1998.

Your name is synonymous with the development of the Tasmanian Bar. You were the inaugural president of the Tasmanian Bar Council from 2004 to 2007 and the president of the Australian Bar Association from 2006 to 2008. Whilst president of the Australian Bar Association you oversaw the creation of the Advocacy Training Council and the commencement of an annual residential advocacy course. Most recently as of January this year you coordinated the five-day residential advocacy course in Brisbane. These courses are a must for members of the bar.

From my own participation in these courses I have seen first hand the esteem with which you’re held by your senior interstate colleagues and your wide knowledge of national legal issues. You also signed the Victorian Bar roll in September of 2004. Whilst you were a deputy president of the Administrative Appeals Tribunal you say throughout Australia on many migration cases. You were later to do a number of migration cases at the bar before the High Court and you are a respected commentator on migration law.

Your opinion on the legality of reopening the detention centre in Nehru was in fact referred to by the prime minister in parliament in September of 2011. In addition to your legal career you have demonstrated a commitment to multiculturalism, developing the World Party celebrating the diversity of the Tasmanian multicultural community. Whilst a president of the Australian Bar Association you uttered the famous quote, “You can’t do that,” after the then minister revoked the visa of Muhamed Aneef and he was detained in a detention centre after he was charged with recklessly lending a SIM card to a terrorist. This was an opinion ultimately shared by the full Federal Court.

You commenced teaching in advocacy in 1987 while training as a coach with what was later to become the Advocacy Institute of Australia. You have had about 26 years’ experience in teaching advocacy in Australia and overseas. In 2011 you became a fellow of the Australian Academy of Law. In all respects you are most highly regarded and eminently qualified for judicial office. One casual online commentary attempts to distinguish between a QC and an SC. It states:

A Queen’s Counsel is more prestigious than the newer title but both wear silk robes and both earn big bucks.

However, in your Honour’s case it’s not the type of letters that mark your significant achievements as much as your intellectual rigour, courage, breadth of experience and ongoing dedication to the bar. As to the big bucks it might not be appropriate to speculate upon your Honour’s previous role in this forum however it is patently obvious that it is your Honour’s commitment to legal excellence and social justice that have been the overriding considerations for you as a barrister.

In this regard you have always displayed a commitment to pro bono cases. For example you represented the mother of a teenage air cadet who committed suicide believing she was facing a dishonourable discharge resulting in a test of the state anti-discrimination powers. Another example is your acceptance of the brief in litigation by a prisoner against the state government over conditions in the behavioural management unit in Risdon prison.

That case resulted in a declaration being made by this Court that the conditions breached the Corrections Act and the government’s duty of care. Your acceptance of these types of briefs demonstrate your strong commitment to social justice. Also your versatility and fearlessness are amply demonstrated by three particular cases in which you appeared in the High Court between 2006 and 2009, the first of those being in 2006 in the Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

This was a complex immigration case relating to Australia’s protection obligations. A second case in 2007 was the Commonwealth v Cornwall which involved the interpretation of the Limitations Act provision as it related to an action for negligent advice concerning the Commonwealth Superannuation Act, and the third in 2009 was CAL & MAIB v Scott, the well-known Tasmanian case relating to whether a hotel proprietor and a licensee owed a duty of care to prevent an intoxicated patron riding his motorcycle home.

Your Honour will bring a new dynamic to the bench with your superior ability to communicate in cyberspace. I’m also sure your colleagues are hoping to sample some of your fine cuisine. Your Honour is a lover of the finer things in life except pinot noir and you have an uncanny ability to source them long before anyone else knows about them. You are arrived at chambers one morning in a very stylish four-wheel drive and explained that it was the only vehicle of its type in Tasmania.

You then recounted in fine detail how you managed to procure it. This ability to be ahead of the pack extends to rare wines, new restaurants, the latest technology and of course current issues in the profession. You will no doubt apply yourself to your role as a judge with the same conscientiousness and vigour you have put into all other aspects of your life. Your social conscience and vast knowledge of the law will ensure that those who appear before you in Court will leave with a sense that justice has been done.

However, I will not be doing my duty if I did not try on behalf of the bar to give you at least some handy tips for the first few weeks of your role. The first tip is a wise judge is slow to cite for contempt. Your Honour may not wish to follow the example of American circuit court judge Daniel Rozak who sentenced Clifton Williams to six months’ gaol for yawning loudly in the back of the Court when the judge sentenced his cousin to two years’ probation.

It may also be unwise to take contempt proceedings against the staff of the Court as did Florida judge Charles Green. He though it fit to gaol his own Court stenographer for working too slowly. He found her guilty of contempt by failing to finish typing a transcript needed for an appeal hearing. The judge eventually relented and allowed her out of gaol to take care of her children but immediately put her under house arrest until she completed the work. It’s reported that Smith currently has about 400 pages of the 1500-page transcript to type.

The second tip is avoid employing your identical twin to perform your role. Now knowing your Honour has no twin I’ll substitute this for a (indistinct words) here I’ll use the example of Italian judge Gabriela Odisio who used her sister Patrizia to impersonate her. The judge was able for some period of time to power through a remarkable quantity of work until the matter ended in an unfortunate prosecution.

The last tip is avoid if possible the hopelessly conflicted position of sentencing yourself. In 1874 Francis Evans Cornish while acting as a magistrate in Winnipeg Canada had to try himself on a charge of being drunk in public. He convicted himself and fined himself five dollars with costs. But then he stated for the record, “Francis Evans Cornish, taking into consideration past good behaviour your fine is remitted.”

Your Honour can be comforted that you’re not prone to offending and in any event such misdemeanors would not be within this Court’s jurisdiction. In concluding, your extensive experience in civil and criminal law and advocacy training all in correct proportion make a fine recipe for an excellent judge and will ensure that you make a smooth transition to your new role. On behalf of the Tasmanian bar I hope you find your new role most fulfilling. If it please.

ESTCOURT J: Thank you, attorney general, Mr Mihal, Mr McTaggart for those truly far too kind words this morning. I’ll do my best to meet the expectations that you have as me – as – of me rather, as the 38th judge of the oldest Supreme Court in Australia. I thank you all for attending this morning although I should say that I’m under no illusion that the numbers gathered here would be as great as they are were I alone being welcomed this morning.

I’m honoured by the presence of his excellency the governor, by two former chief justices of this Court and by so many serving judges and magistrates. I especially thank my family for honouring me with their presence this morning, my brother Tony from Cairns and friends from near and far including Brisbane, Sydney and Melbourne.  Foremost of course I thank my wife Mary who has supported me in every way possible over the almost 40 years of my sometimes difficult journey in the law.

I must also thank my many friends and colleagues and his excellency the governor and former chief justices and serving judges who have sent me their congratulations by email and by personal note and some indeed from friends – many indeed from friends over the web too. They were each of them warmly expressed and they were each of them greatly appreciated. I’m not going to make lofty statements today, I’ll leave that hopefully for 12 years hence. I will confine myself this morning to some modest ambitions but first I wish to say a word about the quality of advocacy in this state.

The practice that I’ve now given up has taken me all over Australia both as Queen’s Counsel and as a deputy president of the Commonwealth Administrative Appeals Tribunal and it has exposed me to counsel from every Australian state and territory both appearing before me and as opponents in most cases. From that experience I am able to say that Tasmania can be very, very proud of the standard of its advocates both senior and junior. They are the equal of any on this country.

As has been noted I have a particular interest in coaching advocacy and from that perspective having taught both in this country and overseas I urge the Tasmanian profession to have faith in itself, I’m sure it does, and to embrace and be proud of its wonderfully high standards of advocacy. Advocates face challenges however. On the civil side we’re now very firmly in the age of written advocacy and I think the challenge for counsel is to present their written submissions to the Court in a way that involves the minimum Court time in oral advocacy, heresy several years ago, fact of life now.

Presenting written submissions orally in a way that involves the minimum Court time will keep the cost of access to justice to the lowest possible level and that is something about which every person in this room is or has been concerned at one time or another. The corresponding challenge for me as a judge will be to use counsel’s written submissions in an efficient and practical way and so as to avoid overwritten judgments and to be able to provide decisions in the minimum possible time.

I am fully aware however that my work in this Court will be very much less in civil and very much more in crime; that’s a reality these days. Nonetheless it’s my view that there is also scope for greater simplicity in criminal matters. The Weinberg report published in August last year in Victoria concluded that jury directions in that state were unduly complex and overly long and in need of reform.

So my personal aim is to follow closely the progress of the proposed legislative changes in Victoria and the changes proposed in the model Victorian criminal charge book and where appropriate to follow these changes in this Court. These are ambitions that I have for myself as a judge but doubtless it will take me time to become fully familiar with the existing practices and procedures.

I am not proposing to run before I can walk, indeed changes of these kinds are evolutionary and may only evolve after time and after challenge on occasions perhaps by way of appeal. If one thing is clear though it is that change is necessary if seemingly ever increasing costs are reigned in and kept to a minimum. It has been my privilege to have been a member of the practising profession for the past 39 years and in particular to have been a member of the Tasmanian bar for the last 18 years.

I am particularly proud of the Tasmanian bar, it’s now a fully nascent independent referral bar and I note with pride that three judges of this Court are Queen’s Counsel appointed from the ranks of the bar. I should also note, Mr Mihal, that when Pearce J takes his seat in June there will be three judges of this Court who attended New Town High School in the 1960s; a great day for the old school.

It’s now my very great privilege to commence a period of service to Tasmania as a judge of this Court and I pledge to do everything in my power to uphold the rule of law and to do justice according to law.  Once again thank you, Mr Attorney, Mr Mihal and Mr McTaggart for your generous words of welcome and thank you all for your attendance here today. The Court will adjourn.