Retirement of P Underwood

Ceremonial Sitting to mark the retirement of the Chief Justice, the Honourable Chief Justice Peter Underwood AO, on 28 March 2008

As counsel have said in their generous remarks, I was appointed a judge of this Court in September 1984, so last September marked my 23^rd year of judicial life. In that time I have written over 300 civil judgments at first instance and presided over in the order of 450 criminal trials. In addition, I have sat on, and written judgments in, approximately 230 Court of Criminal Appeal or Full Court cases. Finally, the Court’s sentencing database tells me that since 1989 I have imposed sentence in just under 1000 cases.

I well recall the first time I sat in this court. Counsel opened the plaintiff’s case by telling me that his client claimed damages for psychiatric injury when he cut himself a slice of bread, ate it, and then discovered half a mouse in the remains of the loaf. I immediately recognised a spoof – this was not a genuine claim, but a joke to play on the new judge – a sort of Tasmanian version of Donoghue v Stevenson – So I just laughed, and said “Oh yeah – you’re going to tell me that the plaintiff then had a nervous breakdown I suppose.” I then smirked widely around the Court until I saw the look of horror and disbelief on the plaintiff’s face as he, already suffering from a post traumatic stress disorder, rapidly reassessed his view of the Tasmanian judicial system, the principles of fairness and justice and the chances of having his genuine claim adjudicated by this idiotic smirking judge. I can only hope that my judicial performance improved after that somewhat wobbly start.

A great deal about this Court has changed in the 23 years that have passed since that forensic catastrophe. When I started out the latest technology in Chambers was an electric typewriter with a golf ball and a Gestener copying machine, the handle of which was vigorously turned by an aging but strong-armed lady in order to distribute our judicial words of wisdom to an eager public. Case management was an expression not to be mentioned by the junior judge, for it was clear that he had no proper comprehension of the role of a judge and the independence of the judiciary. In those days the collective wisdom was that judges had no role to play in the pre-trial management of a case, for to do so would mean that he (and there were no female judges in those days) was stepping between a litigant and his or her solicitor and that was totally inconsistent with the duties of judicial office. As for education for judges, the very thought of it put at peril not only the independence of the judiciary but also the very rule of law itself. Indeed, any attempt to educate a judge would surely cause the sky to fall in. I remind you that these were the days when women and children fell into a class of witnesses whose evidence was so suspect that juries were directed that it was unsafe to convict on it unless it was corroborated. In those days it was understood that the most important prerequisite for taking up judicial appointment was previous practical experience as a barrister in the Courts.[1] Justice Jim Wood of the Supreme Court of New South Wales once described it this way:[2]

“The conventional wisdom seems to have been that a competent trial judge will emerge from the chrysalis of an experienced advocate, within the few minutes required for the taking of the oath of office.”

In the last 23 years society has become primarily knowledge-based and its views and attitudes towards so many things have altered dramatically in that time. By way of example only, I refer to the shift in thinking over the last 20 years, about the indigenous population of this country, and land rights, about homosexuality and “gay rights”. I refer to the change in the role of women in society and the work-place, and the approach today in dealing with complaints of sexual and physical abuse of women and children. In the conduct of curial business, the biggest changes in the last two decades have been the introduction of case management and alternative dispute resolution. After some initial resistance by both the Bench and the Bar, both are now widely accepted as a part of the litigious process designed to reduce delay and cost. Over the last two decades the silicone chip has come to dominate every facet of our lives. I venture to suggest that there is virtually no aspect of modern living that is not dependent on a computer. I don’t know what has happened to our Gestetner machine or the lady who used to turn its handle, but the electric typewriter has been long buried at the tip and our judgments are now published and distributed electronically.

Another significant developoment over the last 23 years is a change in the attitude to judicial education. Education for judges is no longer seen as a threat to judicial independence. A decade ago a presenter to a National Judicial College of Australia[3]programme argued, “judicial education, while new to the common law tradition, is becoming integral to the standing of the judiciary and offers an appropriate means of providing accountability without violating independence.”[4] He wrote that this change was heralded by widespread complaints of gender bias and cultural insensitivity and that led to the introduction of judicial education on gender and cultural awareness. The Chief Justice of Australia shares this view. A few years ago he said:[5]

“Judicial education is no longer seen as requiring justification. We are past the stage of arguing about whether there should be formal arrangements for orientation and instruction of newly appointed judges and magistrates, and for their continuing education. There are approximately 880 judicial officers in Australia. The idea that all, or most, of them have had sufficient practical experience before appointment to slip comfortably into their judicial roles, without the need of further assistance, and that thereafter throughout their judicial careers they would keep abreast of developments in the law and in judicial technique on their own initiative, is unacceptable.”

It has been a great privilege for me to have been on this Court during this time of change. I would like to think that during my time, particulary during the last 3 years when I served as Chief Justice, I have been able to make a contribution to the reduction of delay and cost associated with litigation and improved the access to the Court. I have been fortunate enough to have been able to use my judical office to take part in judicial reform nationally, particulary during my term as President of the Australian Instititue of Judicial Adminsitration and later, as the Chair of the National Judicial College of Australia. I have indeed, enjoyed a priviledged and interesting professional career.

Of course, I was not able to do these things alone. I would like to take this opportunity to thank all the staff at this Court who have given me unstinting support and assistance during the time I have been here. They work as a team and I am very proud of them, and the service that they give the Tasmanian community. Many of them I should thank personally, but I’m sure that they will understand that to do so will unduly lengthen this already overlong farewell. However, I would like to say thank you to my Associate Juanita Shaller who is the current face representing a long line of young lawyers who have worked with me over the years as my associate. Their youth, enthusiasm and sense of humour brightened every day in Chambers. Thank you Alison Fletcher, my very capable daily assistant, proof reader, car driver and general support person. I wish you all the best for your studies in law at the University. I owe Christine Parker an enormous debt of gratitude for she has been my Personal Assistant for more than 20 years. Nothing was a trouble for Christine and for her willing, uncomplaining (at least not in my presence) help over such a long time I am very grateful. It would be remiss of me not to pay tribute to Ian Ritchard who was the Registrar of this Court for 18 years, for the Court owes him a great debt for his tremendous contribution by way of the introduction of sucessful alternative dispute resolution and modern technology. On a personal note, I thank him for his inspiration, support and friendship. To those judges who have helped and encouraged me I also say thank you – not just for their support but also for their friendship and collegialty .

Last, but by no means least, I would like to publically thank all the members of my large family who have always encouraged and supported me as well as patiently listened, apparently with deep interest, while over the dinner table, I carefully explained to them such fascinating matters as the independence of the judiciary and the significance of the rule of law. Most important of all is my wife for 30 years, Frances, who throughout, has been my companion, my guide, my advisor and dispenser of sound judgment and assistance, all the while sucessfully pursuing her own professional career.

I am very honoured to have been chosen for appointment as the next Governor of Tasmania and go from here to my new job with the hope that whilst holding that high office, I will be able make a different, but equally worthwhile, contribution to the welfare of this State and its people .

So it is time to take off the wig and judicial robes, but before doing so I would like to very sincerely thank each of you here today who have done me the great honour of coming along and also apparently patiently – if not with deep interest – listened to me reminisce this morning. I thank Ms Leigh who appeared for the Commonwealth Attoryney General for travelling from Canberra for this morning’s sitting and to all counsel at the Bar I thank you for your gracious words and so it remains only to say for the last time, “the Court is adjourned.”

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