Finally, doubt must attend Lange v Australian Broadcasting Corporation. The celebrated compromise achieved in that case underlies the modern law. But the detection of an opportunity to reach the compromise was unconvincing. Mr Lange was not an Australian politician but a New Zealander. What did discussion of him have to do with Australia? The Court said:
‘By reason of matters of geography, history, and constitutional and trading arrangements, however, the discussion of matters concerning New Zealand may often affect or throw light on government or political matters in Australia.’
This may have been true in the very early 1890s, when New Zealand was a candidate for joining the Australian colonies in a federation and it was not clear what final form Australian unification would take. It is hard to see how it was true in the 1990s. For the most part, Australians know nothing of New Zealand affairs. The information which the Australian public does possess of New Zealand affairs is more likely to generate great public boredom, not interest. Heydon J, Monis v The Queen  HCA 4 (27 February 2013).
[W]hen a child dies in battle, a parent’s sadness is often assuaged by the feeling that the child’s death was a necessary and meritorious sacrifice. Thus on 27 September 1915, in the course of the Battle of Loos, an 18 year old subaltern in the Irish Guards, who had experienced considerable difficulty in joining up because of bad eyesight, was shot through the head as his unit advanced. After a German counterattack, he was left behind. In due course he was posted missing, presumed dead. These events ruined the remaining years of his father, who wrote the following poem:
‘My Boy Jack
‘Have you news of my boy Jack?’
Not this tide.
‘When d’you think that he’ll come back?’
Not with this wind blowing, and this tide.
‘Has any one else had word of him?’
Not this tide.
For what is sunk will hardly swim,
Not with this wind blowing, and this tide.
‘Oh, dear, what comfort can I find!’
None this tide,
Nor any tide,
Except he did not shame his kind –
Not even with that wind blowing, and that tide.
Then hold your head up all the more,
And every tide;
Because he was the son you bore,
And gave to that wind blowing and that tide!’
The parents and other relatives of those killed in war are likely to experience a similar mingling of sadness and pride.
Heydon J, Monis v The Queen  HCA 4 (27 February 2013).
Not everything we poach here at #shitjudgessay is humorous. Here, we give you an example of the serious side to Heydon J, citing his favourite poet yet again.
Mr Glenn C. Martin, SC, President of the Queensland Bar Association, Ceremonial - Special Sitting at Brisbane - Welcome to The Honourable Justice John Dyson Heydon B0/2003  HCATrans 819 (23 June 2003).
They do things differently up in Queensland, that’s for sure. We found this exchange fascinating. Mr Ronald S. Ashton, Vice President of the Queensland Law Society, concluded his remarks with the following:
In your New South Wales farewell speech your Honour quoted Harry Truman, who, when asked how he felt upon becoming president of the United States on the unexpected death of President Roosevelt, responded to the journalist, “Boys, I feel like the sun, the moon and all the stars fell down on me. I don’t know if newspaper men pray, but boys if you do, pray for me now.”
Perhaps feeling the loneliness at the top, your Honour, President Truman on another occasion remarked somewhat differently, “If you want a friend in Washington, get yourself a dog.”
Justice Heydon started his reply with the following. We are not sure if it was meant as a commendation, or a riposte.
[W]hile it has not been possible for me to participate very much in litigation in Queensland, it has been possible to encounter quite a few Queensland lawyers in New South Wales. This is because of that remarkable dog fence which used to run along the Queensland/New South Wales border. It was completely effective in stopping southern dogs from going north but it in no way hindered northern dogs from moving south at will.
Some of the northern dogs who came south decided to stay permanently.
The Honourable D. Williams, AM, QC, Attorney-General for the Commonwealth, Ceremonial - Heydon J - Swearing in C0/2003  HCATrans 563 (11 February 2003).
The seemingly insatiable work-ethic of Justice Heydon was a continuing theme at his swearing ceremony. Thus, we had Mr R.K. Heinrich, President of the Law Council of Australia:
It was my privilege and pleasure to brief your Honour over many years from the time you first commenced active practice at the New South Wales Bar in the 1980s up until the time you were appointed to the New South Wales Court of Appeal. I must say that it was somewhat of a relief when you were appointed. As not being a particularly early riser I am no longer troubled by your kind offers of 6 am early morning conferences.
And Mr B.W. Walker, SC, President of the New South Wales Bar Association:
For reasons not susceptible of rational explanation, the Law School at Sydney University hides its students well underground. Nearly all teaching, particularly at undergraduate subjects at the core, like equity, was conducted in rooms which but for artificial lighting would be nothing but caves. At any season they are unattractive. In the middle of an academic year, coinciding with winter, they are even less attractive. An undergraduate population does not rise early or does not rise early in a good or eager mood. These are all matters of personal recollection on my part.
I share with many others, therefore, still some wonderment at the way at which at 8 am - an hour which is far more extreme than the 6 am Mr Heinrich recalls from a remunerated legal practice - a crowded lecture hall well underground would attend your Honour’s equity lectures.
Speaking in reply, the newly-appointed justice of the court alluded to the same issue:
It is a truism that the families of lawyers do not have easy lives. My family, like others, probably suffered less while I was on the Bench than in the years during which I was involved in the din and dust of life at the Bar. Judicial life is calmer but it still imposes some strains. The Egyptians made the lives of the Israelites bitter with hard bondage and caused them to sigh and groan. Barristers can do the same to judges and the effect flows on to their families.
But we thought we would leave you with Dyson’s penultimate remarks, which seemed for us to sum up much about his rhetorical approach in the 10 years that have followed his appointment:
Sharp memories of my childhood in this city have been revived by the sights and sounds and contrasting smells of Canberra as I walked across to the Court yesterday and today.
It was on another late summer day that my father first walked to work in this city 67 years ago. He was the grandson of a wheelwright and the son of a State primary school teacher. His starting salary as a clerk at the Department of External Affairs was described as being in the range of £288 to £354, £258 actual. The formula shows the eternal wisdom of the Australian people. Not only do they, then as now, take care not to spoil their servants with generosity. They also created the mathematical miracle of an actual number which is lower than the lowest point of the range of which it is said to form part.
Yes, thank you, Mr Sexton. We need not trouble you, Mr Campbell.
Despite the skill of Mr Sexton’s submissions, we are of opinion that if special leave were granted the appeal would not be attended by sufficient prospects of success. Accordingly, the application for special leave should be dismissed with costs. Heydon J, Upper Lachlan Shire Council v Rodgers  HCATrans 31 (15 February 2013).
- MR BARKER: So, your Honours, section 135.4 commenced on 24 May 2001 and the matters explanatory of it or what the court said was – I cannot pronounce the word - - -
- HEYDON J: Epexegetical.
- MR BARKER: Epexegetical. Yes, if I say it often enough I will probably get used to it.
- SOURCE: Agius v The Queen  HCATrans 30 (15 February 2013)
French CJ, Ceremonial - Announcement of Appointment of Senior Counsel - Canberra  HCATrans 3 (4 February 2013).
You may not want the public farewell, Heydon J, but we will do our best to give it to you in any case. Amongst the literary-minded here at #shitjudgessay, you will be missed. A keen appreciation for language, a formidable memory, and a dry wit marked the Canadian-born Heydon’s decade-long stint on the bench. His retirement, following shortly after Justice Gummow’s exit late last year, marks the end of an era for the Court.
You can access all of our favourite Heydon quotes here, but we thought we’d leave you with our favourite (with apologies to this famous quote, and this one):
After a “great” constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.
Vale, Justice Dyson Heydon.
- MR GAGELER: In relation to the balance of convenience, the defendants’ basic position comes down to two propositions. [...] There is no part of either proposition with which we agree.
- HEYDON J: The Times said when Hitler made some proposals about the future of the Sudetenland “it must be conceded that these proposals could not be expected to have a strong prima facie appeal to the Czechs.” I do not expect Mr Bennett’s arguments could be expected to have a strong prima facie appeal to you.
- SOURCE: Combet & Anor v Commonwealth of Australia & Ors  HCATrans 459 (29 July 2005)
- MR NUGAWELA: Your Honour Justice Heydon, as your Honour then was, set out the proper approach to drawing inferences from objective facts where there is no direct evidence of what occurred. I would just ask your Honours to read paragraphs 62, 63 and 64 of that judgment.
- HEYDON J: Is this Coastwide Fabrication?
- MR NUGAWELA: It is, your Honour, Coastwide Fabrication - - -
- HEYDON J: There must be an error in the date; 2009.
- MR NUGAWELA: The date is wrong. I am so sorry, I will give your Honour the correct date. It is 2009. I misattributed it to your Honour Justice Heydon. I think there was another case in our submissions.
- CRENNAN J: Is it Makita v Sprowls that you are thinking of?
- MR NUGAWELA: No it was not Makita v Sprowls. It is - - -
- GUMMOW J: We had better find out who said what in this mysterious 2009 case.
- SOURCE: Kuhl v Zurich Financial Services Australia Ltd  HCATrans 267 (19 October 2010)
- HEYDON J: But, Mr Silbert, [...] that, in turn, implies that these passages are not setting down a general rule of exclusion of the type you are trying to attack.
- MR SILBERT: Well, your Honour, if they mean what they say I would agree with your Honour but the effect of proceeding - - -
- HAYNE J: It is hard enough being a judge, Mr Silbert, without not being taken at face value.
- MR SILBERT: Yes, accepting what your Honour Justice Heydon says, it is effectively a non sequitur.
- SOURCE: R v JPR  HCATrans 349 (14 December 2012)
- HEYDON J: Are you saying you would not seek special leave to cross-appeal?
- MR MOSHINSKY: No. If special leave were granted, we would certainly consider and may well seek special leave to cross-appeal, but absence a grant of special leave we have not sought to seek special leave.
- HAYNE J: I think it is time to nail your colours to the mast, Mr Moshinsky.
- SOURCE: Director of Public Prosecutions (Cth) v JM  HCATrans 347 (14 December 2012)
Heydon J, RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest  HCA 47 (7 November 2012)