The Arbitrator: November 2000

Volume 19, Number 2, November 2000

The opening of the Offices of the Institute of Arbitrators and Mediators Australia and Dispute Resolution Centre

Opening Speech by the Honourable Mr. Justice Charles, Judge of the Court of Appeal

Arbitration in Melbourne has a considerable history. There are recorded instances of Melbourne arbitrations going back almost to settlement of the colony. By the end of 1835 Melbourne had over 100 residents, most of whom had come from Tasmania. There was no legal system and the community had no official recognition because of a proclamation by governor Bourke in Sydney that the Port Philip Settlement was illegal. The inhabitants of Melbourne found it necessary to resort to self-help to bring a semblance of order to their infant settlement. As early as May 1835 four disputes between John Pascoe Fawkner and John Batman’s brother Henry were settled by arbitration. They involved dogs allegedly being set on a calf, the destruction of rabbits and “unauthorised aggression”. The first recorded arbitration award was published on 2 May 1836 and was in these terms:

“We award in the disputes between Mr Henry Batman and Mr John Pascoe Fawkner - on the first claim, 30 shillings, on the second claim, nothing, although a strong presumption is in our minds that some hasty expressions of Mr Batman’s may have led Bullett to destroy the rabbits. On the third claim, damages 5 shillings and a fine of 20 shillings in consideration of it being an act of unauthorized aggression, and in the fourth claim, nothing as it does not appear that Mr Batman set the dogs on the calf. We cannot omit remarking that there has been a degree of forebearance on the part of Mr Fawkner highly gratifying to us, and if generally practised very conducive to the general good.

(Signed) A. Thompson

ohn Aitken

James Simpson

Mem - the fines to be appropriated to some general purpose”.

Then on 1 June 1836, just 12 months after John Batman’s arrival, a public meeting of residents of Melbourne was later held for the purpose of taking steps to secure a resident magistrate for the district. Seventy-seven persons attended the meeting and in September, Captain Lonsdale was appointed resident magistrate at Port Philip. Captain Lonsdale’s chief personal attendants were the constable and the “scourger”, since the population included 40 or 50 convicts who furnished most of the judicial business Captain Lonsdale had to transact. The flagellator occupied a house in Bourke Street where St Augustine’s Catholic Church later stood. In 1839 a regular Court of Petty Sessions was established.

Arbitrators can, therefore, lay a well-based claim to being the first profession carried on by the new settlers of the Colony of Victoria. How fitting then that this Institute, on the 25th anniversary of its founding, should come - and we hope it will stay - lodge in a building in which some of the most significant disputes in the history of our country have been argued and decided. The High Court was built in 1926, in the inter-war “Stripped Classical” style, designed by the Chief Commonwealth Architect, J.S. Murdoch. Murdoch also designed many of Canberra’s buildings including the old Parliament House and the Hotel Canberra.

The new High Court building opened for business quietly, very much, you might think, in the way lawyers usually operate. The Argus of May 9, 1928 described the opening in the following terms -

“With a complete absence of ceremony the new buildings of the High Court were opened yesterday. The Chief Justice (Sir Adrian Knox), Mr Justice Isaacs, Mr Justice Higgins, Mr Justice Powers, and Mr Justice Starke presided. Mr Justice Duffy is in Tasmania dealing with some High Court business, and Mr Justice Rich is abroad. A number of barristers and solicitors attended the court, apparently under the impression that there would be a formal opening. When the Court settled down to ordinary business, however, they dispersed.

The first case called on in the new Court was an appeal in the action of Bretherton and Major. The Appeal Book was not ready, however, and the case was not proceeded with.

An appeal from the order of the Chief Justice in an action in which the City of Sandringham sued Tarlton Rayment, of Bath Street, Sandringham, for £47/14/4 for road construction was next argued. In Petty Sessions the Council had got an order against Rayment. On appeal the Chief Justice (Sir William Irvine) held that the notice served by the Council on Rayment was bad. He set aside the decision of the lower court.

The High Court reserved judgment on the appeal”.

The opening may have been inauspicious, but counsel appearing in the case certainly were not. R.G. Menzies and W.K. Fullagar appeared for the appellant, and Owen Dixon, K.C. and Grattan Gunson for the respondent. You will find the case reported in 40 C.L.R. The absence of ceremony was only consistent. The Supreme Court building itself had commenced business of 15 February 1884. As Sir John Young (then, the Chief Justice) said, at a gathering in the Supreme Court on February 1984 to mark the centenary of the first use of the Supreme Court building -

“At 10 o’clock on the morning of 15 February 1884 the Criminal Court was packed to the doors with spectators eagerly awaiting the opening of the criminal sittings of the Supreme Court which was to mark the inauguration of the new building. The Bar was there in force ... because it was confidently expected that Mr Justice Holroyd would make some grand pronouncement appropriate to the occasion ... It was ten minutes past ten before Mr Justice Holroyd entered the court. Expectancy reigned. The crier called for silence. The Bar bowed to the judge. Mr Justice Holroyd returned the bow and took his seat. What would the first words be? All waited in silence. Mr Justice Holroyd said nothing. The associate said 'Bring William George Clamp to the Bar.’ In the criminal court of those days a prisoner awaiting trial was held in a cell beneath the dock. In obedience to the associate’s command, an officer in the dock dived down into the bowels of the earth by way of a stone staircase and presently returned with a prisoner looking suitably bewildered at arriving in the comparative brightness of the court compared to the darkness of the nether regions from which he had come. ‘Are you William George Clamp?’ said the associate. ‘No’ said the prisoner. And so he was ignominiously returned to the depths from which he had sprung and, so it is recorded, ‘amidst the unchecked titter of the spectators’.”

The Age reported on Saturday 16 February 1884 that -

“The arrangements in connection with the new law courts were submitted to a practical test yesterday when the Criminal Court was opened before Mr Justice Holroyd. It was anticipated that some confusion would exist amongst the general public, many of whom had not been inside the building before, and the anticipation was fully realised. Both before and after the opening of the court the wilderness of corridors and passages were crowded by bewildered jurors and witnesses who, by their zeal and assiduity, had succeeded in hopelessly losing themselves within the mazes of the building. The general public, however, comprise a large percentage of individuals whose impetuosity and impenetrable stupidity rise superior to all directions intended for their guidance, the result being that in a short time they become utterly lost. The authorities had, however, taken every reasonable step to prevent confusion. The names of the different courts, with a hand pointing in the direction of the court, were painted on the walls of the corridors, and hall porters in uniform were stationed in various places for the purpose of giving information to inquirers.”

I have looked in vain today for hall porters in uniform.

This is indeed a building with blood on the walls. Here the first Uniform Taxation case, South Australia v. the Commonwealth, the case in which the power of taxation was effectively removed from the hands of the States, was argued in 1942. In this building, the Melbourne Corporation case, Melbourne Corporation v. The Commonwealth, which re-interpreted the role of Federal and State Governments was argued in 1946. The Banking case, when the Labor Government of Mr Chifley attempted to suppress all but government banking was argued in Court No. I in 1948. The Communist Party case, when Mr Menzies’ Liberal Government sought to dissolve the Communist Party was argued here in 1950. The Boilermakers’ case, which held that the Commonwealth Court of Conciliation and Arbitration. could not exercise both judicial and arbitral functions, and which resulted in the creation of the Conciliation and Arbitration Commission and the Australian Industrial Court, was argued here in 1956. In Court No. 1, on 31 October 1962, was argued the Tait Case, Tait’s execution having been fixed to take place in Pentridge Gaol at 8 a.m. on 1 November 1962. ‘This was the case in which the Court restrained the Chief Secretary, Sir Arthur Rylah and his sheriff and deputy from carrying out the execution, “entirely so that the authority of this Court may be maintained and we may have another opportunity of considering it”, as Sir Owen Dixon put it that day.

Among the occupants of the building, in the chambers on the northeast corner of the ground floor now occupied by Justice Gillard, have been six Chief Justices of the High Court, Sir Adrian Knox from 1928 to 1930, Sir Isaac Isaacs from 1930 to 1931, Sir Frank Gavan Duffy from 1931 to 1935, Sir John Latham from 1935 to 1952, Sir Owen Dixon from 1952 to 1964, and Sir Garfield Barwick from 1964 to 1980; and since then two Chief Justices of the Federal Court, Sir Nigel Bowen and Chief Justice Michael Black, until the Federal Court moved last year. Another occupant of chambers here was Sir Edmund Barton, Australia’s first Prime Minister, later a Justice of the High Court, but, more relevantly, a notable arbitrator in the nineteenth century in Victoria.

The blood on the walls was by no means confined to the courtroom. Relations between some of the judges were indeed rancorous. When Sir John Latham was Chief Justice, a question arose concerning travelling expenses. Sir Hayden Starke sent a note to Latham, who had been Starke’s pupil, which included the following paragraph -

“I resent your dirty insinuation that I stayed on in Sydney to make a bob out of the government, and also your silly schoolmaster attitude towards me. I think an apology is overdue and in future pray keep your criticisms of me to yourself unless I ask for them!”

In correspondence, Starke regularly referred to some of his brothers as “parrots” or “worms”, a reflection of his disgruntlement at the extent of the influence he thought Sir Owen Dixon had over his colleagues. Starke refused to have any consultation at all with Mr justice Evatt, and would not exchange drafts of judgments with him or even supply him with copies of his final judgments. If they met in the passageway of the Court, Starke would acknowledge Evatt’s staff, but would address no word to Evatt himself. On one occasion when Starke was asked by Latham to exchange reasons with Evatt, he sent his associate to Latham’s chambers, the associate’s opening words on entering being “I bring not peace but a sword”. Who but Starke could have commenced a judgment -

“This is an appeal from the Chief Justice, which was argued by this Court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties. The evidence was taken and the matter argued before the Chief Justice in two days. This case involves two questions, of no transcendent importance, which are capable of brief statement, and could have been exhaustively argued by the learned counsel in a few hours.”

See Federal Commission of Taxation v. Hoffnung 42 C.L.R.

I first appeared in the Court on 23 October 1961 in my first month at the Bar. The case was Western Interstate Transport v. Madsen, to be found in 107 C.L.R. My brief, marked three guineas, was simply to hear judgment, and on the bench were Sir Owen Dixon, and McTiernan, Kitto, Taylor and Windeyer, JJ. I understood that my function was to look benignly at the Court and make a note of the judgment pronounced. I knew nothing at all about the case. You can imagine what happened when Sir Owen Dixon asked whether any counsel was present for the party I had been briefed to represent and began to ask me questions as to the form the orders should take - I might add, in a packed courtroom!

Arbitration, of course, plays a very important role in the resolution of disputes, as does mediation in the settlement of them. In our litigious society, the volume of cases is steadily increasing. Many would say it is already beyond the ability of courts to cope with the flow of litigation. The work of this Institute and its members is of great significance in the administration of justice in Victoria. In its most recent statement of the purposes and values of the Supreme Court, among the Court’s objectives will be found that “The Court also perceives that it has an important role in supporting and facilitating, where appropriate, the resolution of disputes by means other than formal trials at law.”

It is entirely appropriate that the Institute should be housed and carry on its functions in these surroundings. The rooms appear splendidly appointed and suited to the purpose. I hope that it will be very much to the mutual advantage of the Court and the Institute that these facilities for arbitration and mediation are established as part, as it were, of the Supreme Court’s precinct.

The Chief Justice has asked me to convey on his behalf his very good wishes to the Institute upon this, the Institute’s 25th anniversary, and the opening of these premises of the Institute and the Dispute Resolution Centre.

My congratulations and good wishes also to the Institute and to you all, and it is now my very great pleasure to declare that the Victorian and National Offices of the Institute of Arbitrators & Mediators Australia and the Dispute Resolution Centre are open.