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TRANSCRIPT OF PROCEEDINGS

FEDERAL COURT OF AUSTRALIA

	CEREMONIAL SITTING OF THE FULL COURT TO FAREWELL

	THE HONOURABLE JUSTICE MARSHALL

PRESIDING JUDGES:

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE MANSFIELD AM
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE JESSUP
THE HONOURABLE JUSTICE TRACEY AM RFD
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE BARKER
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE PAGONE
THE HONOURABLE JUSTICE DAVIES
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY

MELBOURNE

9.34 AM, FRIDAY, 20 NOVEMBER 2015

ASSOCIATE:   The Court’s farewell to the Honourable Justice Marshall.  

ALLSOP CJ:   Justices Nettle and Gordon, Sir William Young of the Supreme Court of New Zealand, Chief Justice Blow, The Honourable Susan Crennan, Court of Appeal and Supreme Court Judges, Chief Magistrate Rinaudo, former Commonwealth Attorneys, The Honourable Michael Duffy, and The Honourable Mark Dreyfus, The Honourable Senator Conroy, State Attorney The Honourable Martin Pakula, State Treasurer, The Honourable Tim Pallas, all Judicial colleagues, ladies and gentlemen.  

If I may also especially welcome former colleagues of Justice Marshall and myself, The Honourable Peter Gray, The Honourable Don Ryan, The Honourable Alan Goldberg, The Honourable Geoff Giudice, The Honourable Julie Dodds-Streeton, The Honourable Ron Merkel, and The Honourable Chris Carr, and most especially Lyn, Kate and Amy.  The Honourable Michael Black specifically asked me to mention his disappointment at not being able to be here and to give his apologies.  He is in Sydney chairing a public meeting, the date of which was set down a long time ago.  

May I welcome everyone today on the occasion of this farewell to a much-loved servant of the Australian people, and colleague, Justice Shane Marshall.  

Justice Marshall, the number and distinction of those in attendance today, and the distances that not an inconsiderable number have come to farewell you, is ample testimony alone to the respect and friendship in which you are held.  The speakers today will, no doubt, touch on many aspects of your life and work which illuminate your approach to your work, and which also illuminate why the gathering today is so large.  I will touch on some aspects of these matters, but what I wish to say should always be understood from the perspective of your brothers and sisters on the Court, of whom I count myself lucky to be one.  

You have served as a Judge of this Court for over 20 years.  You came, if I may say so, as a young man with a well-established and busy practice, especially in industrial relations.  You were immediately thrown into the thick of that work in the Industrial Relations Court, and you soon came to participate in important Full Court cases dealing with the ever-changing legislation, and sometimes politically-charged controversies in landmark cases in that jurisdiction.  

In 1995, in Mohazab v Dick Smith, the Court, including you, dealt with the tricky relationship between resignation and termination.  In 1996, in Brackenridge v Toyota, the Court, including you, dealt with the relationship between demotion and termination.  In 1997, in Perkins v Grace Worldwide, the Court, including you, dealt with the discretionary remedy of reinstatement (something that the next Full Court list will have before it).  More recently, in 2010, in the Queensland Rail case, the Court, including you, dealt with the important question of the obligation of employers to consult before effecting the terms and conditions of employment.  

You often worked in a productive partnership with Justice Murray Wilcox, in cases such as Burazin, and Damevski.  But also as a single judge in that jurisdiction, you contributed equally to the development of jurisprudence and principle.  Cases such as Australian Municipal, Administrative, Clerical and Services Union, concerning the construction of industrial awards and Fair Work Ombudsman v Maclean Bay concerning adverse action.

Your work in this field, and all the other areas of the Court’s work in which your laboured, reflected your deep kindness and humanity, with which you always treated Counsel and litigants in front of you.  You understood the power of the law to affect the lives of ordinary working people. Your sense of justice, search for fairness in a decent manner, may have their sources in your lineage back to the Eureka Stockade, or perhaps in the gifts from those of earlier generations in your family, who learnt about fairness (or unfairness as the case may be) working on the docks in Port Melbourne.  But to say that may undervalue the importance of your personality.  These things come from inside you.  You are a kind, gentle and decent person, and that informs the deployment of your not inconsiderable intelligence and legal knowledge. (The understatement is deliberate).  

Your contribution to the legal work of the Court was not restricted to industrial relations.  In Native Title, Administrative Law, Migration, Consumer Protection, and many other areas, you contributed greatly to the life and work of the Court.  Since Justice Heerey’s retirement, it should be noted, you have helped manage the Tasmanian work of the Court with Justice Kerr.  

Your deep commitment to social justice has seen you contribute to the reconstruction of East Timor, when, in 2005, you became an Associate Member of the Judicial System Monitoring Programme.  You have also contributed to the Indigenous Law Students Association, the Board of the Faculty of Monash University, and you have taught at Western Sydney University.  Since 2013, you have contributed to the initiatives of the Bar and the Law Institute to combat depression in the profession.  And in 2014, you joined the Advisory Board of the Australian Intercultural Society.  

I have no doubt that you will continue to serve this community in the fields of your choice with the same dedication that you displayed in the law.  

You leave this Court with the warmth, respect and friendship of your colleagues.  Perhaps most importantly, you leave recognised as a Judge who deployed his considerable talent fairly, decently, humanely, and always with practical justice.  No Judge, in whatever Court, can wish for a more worthy legacy, because no more worthy judicial legacy exists.  Thank you again for your years of service to this Court, and please accept our best wishes for the future. We will miss you.  

Senator Ronaldson representing the Attorney.

THE HON. M. RONALDSON:   May it please the Court, it’s a great privilege to be here today on behalf of the Australian Government and the Australian people to farewell his Honour Justice Shane Marshall.  Your Honour retires today after a long and distinguished career spanning 20 years of dedicated service to this Court.  The Attorney-General, The Honourable George Brandis QC, regrets his Ministerial commitments prevent him from being here today.  He has asked me to convey to Your Honour his personal best wishes on your retirement. 

The high regard in which your Honour is held is demonstrated, as the Chief Justice said, by the large number of esteemed guests that are here today, including Justices of the High Court, the Chief Justice of Tasmania, and the Shadow Attorney-General, my Parliamentary colleague, The Honourable Mark Dreyfus QC, the Shadow Minister for Defence, Stephen Conroy, The Victorian Treasurer, Tim Pallas, the Victorian Attorney-General, Martin Pakula, and the Justice of the New Zealand Supreme Court, Sir William Young, and current and former Judges of the Federal, State and Territory Courts.  I understand that many of those close to you are here today, including your wife Lyn, and daughters Kate and Amy, and I know they will share this special moment with you.  I am sure they are incredibly proud of you, and I am equally sure they have been of tremendous support to you, as well, your Honour.

If I can just turn to your early years, and it’s at times such as this where it is appropriate to reflect upon your Honour’s accomplishments.  Your Honour grew up in a hard-working family in Melbourne.  Your father, grandfather, and great-grandfather were waterside workers, and your mother was a migrant factory worker.  With a strong work ethic from an early age, your Honour excelled academically.  You became the first member of your family to attend university, graduating with a Bachelor of Economics and Law, with Honours, from Monash University.  After completing Articles with Maurice Blackburn & Co, your Honour was admitted as a barrister and solicitor of the Supreme Court in 1980.  Your Honour continued to work in this firm as a solicitor specialising in Industrial Relations, Employment and Administrative Law.

You were called to the Bar in 1981 and understand that you first read with the late Jim Cairns, who was a SC, a former Attorney-General, and then the Honourable Peter Gray, a former Judge of this Court who, I understand, is here today.  As a barrister, Your Honour was renowned for your knowledge of Industrial Relations Law, helped, in part, by a special resource you developed which, I understand, became known as the Marshall Index and this comprehensive record included every industrial relations case from the early 1980s onwards.  I will leave it to my learned friends from the Bar to speak more about your service at the Bar.  

Your Honour’s expertise in Industrial Relations Law was recognised when Your Honour was simultaneously appointed to both the Industrial Relations Court of Australia and the Federal Court in 1995.  Over the ensuring 20 years, you have probably heard far too many cases to remember them all, but one that stands out is Damevski v Giudice.  Your Honour wrote the leading judgment in that case, which was pivotal in clarifying the difference between an employee and a contractor.  This important decision influenced the direction of subsequent Industrial Relations Law.  

Your Honour is renowned for his extensive knowledge of the law, as well as your friendlessness, warmth and kindness.  Your charm on the Bench has ensured the legal practitioners and self-represented litigants alike have felt properly heard when appearing before you.  Your Honour’s contribution to the Court was acknowledged in 2003 when you were awarded a Centenary Medal for your services to industrial relations.  However, that is not the end of your contribution, you also served the community in the Australian Capital Territory as an additional Judge of the Supreme Court between 2004 and 2013.  

As the Chief Justice said, Your Honour has also given generously of your time to assist the next generation of legal professionals as a role model and mentor to your associates.  You also found time to reside over various Law School moots including those held at Deakin, Monash and Latrobe Universities.  In 2006, Your Honour became an Associate Member of the Indigenous Law Students and Lawyers Association of Victoria.  As the Chief Justice said, you’ve served on the Board of the Law Faculty with Monash University and you did became an Associate Member of the Judicial System Monitoring Program for East Timor in 2005.  It is not a profit organisation, works in the spirit of collaboration to improve and protect democracy, law, justice and human rights in East Timor. 

In 2013, you became one of the inaugural ambassadors for the Wellbeing and Law Foundation, which, I understand, is a joint initiative of the Bar and the Law Institute of Victoria.  This was designed to combat the effects of depression in the legal profession.  Your Honour has courageously spoken out about your own struggle with depression to help others who might be suffering alone.  

Over the last 12 months, Your Honour has been enjoying some well deserved and hard earned leave and I’m not too sure how much rest and recreation you have been getting, because during this time you have been appointed as a member of the External Professional Advisory Committee at the Law Faculty of the Monash University, Deputy Chair of the Advisory Board of the Australian Intercultural Society and Adjunct Professor of the School of Law at the University of Western Sydney.  

One hopes that your retirement from Court will give you more time to pursue your many and varied interests.  I understand Your Honour is a passionate Collingwood supporter who wears his heart on his sleeve quite literally.  Your Chambers, I understand, are festooned in Collingwood memorabilia.  I’m advised and this was given to me by someone else, so I don’t take ownership if it’s wrong, Your Honour.  But I understand that when an exasperated barrister made a comment in Court along the lines of, “I can see from the expression on Your Honour’s face that you do not accept my argument,” I understand you responded, “No, counsel.  I’m a Collingwood supporter and I always look like this.”

Now, Your Honour, when I was reading through this speech last night, I remembered that I have a certain piece of memorabilia myself, which I have a spare copy of and I will give it to my Parliamentary colleague, Steven Conroy, in the Senate next week, but it is a highlights reel from the ‘55 and ‘56 and 1960 and 1964 Grand Finals, which I am sure Your Honour can watch over the festive season and feel a lot better for what might have been.  

Another of Your Honour’s passions is the Sport of Kings – and being a good Presbyterian, I don’t know much about it.  But I understand that Your Honour has served as a trustee of the Caulfield Racecourse Reserves since 2003 and likes to take friends for a day out at the races from time-to-time. 

Your Honour, on behalf of the Government and the people of Australia, I would like to thank you for your distinguished service.  As a Judge, you have served the community for 20 years in an important role of administering justice according to the law.  I extend to you my sincerest best wishes in your future endeavours.  May it please the Court.  

ALLSOP CJ:   Ms McLeod.

MS F. McLEOD SC:   May it please the Court.  It is a great honour to appear today on behalf of the Law Council of Australia and the Australian Bar Association to pay tribute to Your Honour’s service to this Court and the community.  After more than 20 years of judicial service and 14 years prior to that the Bar, it gives me very great pleasure to recognise that dedicated service and your substantial contribution.  Your Honour has always been a good friend to the profession.  Taken considerable time to mentor and encourage with your characteristic warmth and openness.  

The former Chief Justice, Michael Black, recalls with gratitude your work as his junior in the EC QEB dispute in the 1980s between the Bjelke-Petersen Government and various electricity industry unions.  You appeared with him before the Full Bench of the Industrial Relations Commission and then before the High Court of Australia in the same case.  The case was long, hard fought and important, concerning the breakdown of industrial relations, the declaration of a state of emergency and deregistration and sacking of many union members prompting an application by the unions to secure federal award conditions for their members. 

Your Honour also appeared as a civilian junior to His Honour, as he then was, the defence force advocate in a defence force case concerning flying allowances.  It was important to understand, apparently, what was involved in the duties to be accorded additional remuneration and you received instructions about how to get out of a sinking navy helicopter.  You were told, simply, “Follow the bubbles to the surface.”  Your Honour had one small problem with this, asking, “How do we see the bubbles in the dark?”  And you received the reassuring reply, “A good question, sir.”

Apparently, you sorted that one out.  Senator Ronaldson has talked about the Marshall Index;  perhaps we should now call it Marshall’s Law.  Before AustLII, before any loose-leaf service, there was Your Honour’s meticulous record of Industrial Relations Law.  Your generous nature meant you were always ready to share that knowledge and to save many a junior barrister, and even the odd silk, from embarrassment.  

You hadn’t even turned 40 when you were invited to take judicial office in 1995.  As a Trial Judge, you were highly regarded for your expertise in Workplace Law and 
then later in Immigration, Native Title and Maritime cases.  Your Honour’s judgments were never late and rarely overturned by the Full Court or the High Court.  Your Honour was the Trial Judge in Mulholland v Australian Electoral Commission, concerning the continued registration of the Democratic Labor Party as a political party under the provisions of the Commonwealth Electoral Act which required a minimum number of members to form a political party.  The case considered the power of the Parliament to legislate, with respect to the method of election of Senators and Members of the House of Representatives and of the requirement to freedom of communication on matters of Government and politics implied by the Constitution.  Your Honour’s decision that the provisions were valid was affirmed on appeal and upheld in the High Court.  

There was also the case of Shergold v Tanner on Freedoms of Information, Cook v Benson on the treatment of settlements of property and bankruptcy and Jemena Asset Management v Coinvest on the intersection of Federal and State Industrial Law with respect to long service leave entitlements – and there were many others, some touched on by the Chief Justice, such as Damevski v Giudice, mentioned by Senator Ronaldson and the Chief, which became reliable precedents.  These include, Luu v Minister for Immigration & Multicultural Affairs and Health Services Union of Australia Tasmania, where Your Honour said:

Singling out a union member for denial of a wage increase constituted an injury to the employee.

Allman v Teletech International concerning transference of redundancy entitlements and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations, in which you highlighted the flexibility of the Court to possess – that the Court possess to correct injustice.  A passage from Goldman Sachs JB Were v Nikolich on the content of an employment contract is typical of Your Honour’s clarity of expression.  In response to Counsel’s argument that corporate guiding principles imported a contractual obligation to comply with the complaints process, Your Honour said:

It is the language of “aims” and “guiding principles”, not of absolutes or guarantees.  The language is plainly aspirational.  There is no magic in in which turns the steps in the complaints process into a contractual obligation.  It follows that no breach of contract arose.

Your Honour has also featured in some non-industrial headline cases.  There was the Wilderness Society challenge to the Gunns’ Bell Bay Pulp Mill case, featuring our now Prime Minister as the respondent, when he was Minister for Environment, and you’ve enjoyed the chance to hear cases from the Hobart Registry and have even endeared yourself to the Tasmanian devil as a result of the Tarkine decision.  Your Honour has also done his share of native title determinations.  In fact, you chose the final settling of the claim of the Ngadju people from a tent in Norseman, Western Australia as the occasion to reveal you would take early retirement.  

Your colleagues remember some important kindness from Your Honour.  On one afternoon, a Judge was asked to hear an urgent application from a union official over her dismissal.  She was not seeking reinstatement, just the right to continue using a card which had been cancelled that gave her access to an airport lounge.  The Judge was cursing his luck at having to stay back late, when Your Honour appeared at the door.  You volunteered to take the case, and after reading the papers, walked calmly into Court.  Your short decision went something like this:  “Application dismissed.  Both parties are a disgrace to the union movement.”  

You also managed to save the Full Court from major embarrassment during a case concerning statements made on the social media site Facebook.  As Bench and Bar debated the significance of posting, friends and likes, the Associates were rolling their eyes and predicting a disaster, until Your Honour intervened and explained all.  Your Honour has been an enthusiastic participant in the Federal Court’s judicial training programs across Asia and the Pacific.  The impact you had was exemplified by a story involving one Judge you had mentored being offered a bribe and reporting, “I thought of Your Honour and said no.”  

You’ve done important work in the community with migrants.  For example, you are patron and board member of the African-Australian Multicultural Employment and Youth Services, a not-for-profit group created to assist members of the African-Australian community overcome specific obstacles mentioned by community members.  As has been mentioned, Your Honour has been an inaugural ambassador for the Wellbeing and the Law Foundation and has been a support for many lawyers facing mental health challenges in the profession.  

Thankfully, Your Honour will stay connected with the law, but retirement also means more times for two of your great passions:  racehorses and the Collingwood Football Club.  I understand Your Honour has enjoyed some small success as an owner and has apparently even rolled your super into a racing industry fund.  Now, your constant support of the Pies, in my humble and entirely non-partisan submission, is a wonderful example of Your Honour’s excellent judgment.  Your devotion is impressive, from your own personal enduring reminder of the 2010 premiership win to your willingness to defend the team and its supporters.  

In fact, when Magpie fans were being attacked on radio in 2011, no doubt for some characteristically robust but otherwise exemplary behaviour, you called in and explained that people from all walks of life were part of the cheer squad.  The following day, someone helpfully provided the Herald Sun a picture of a very animated Your Honour standing with the cheer squad behind the goals at the MCG.  Justice Marshall, the legal practitioners of Australia salute your contribution to this Court and to the people of Australia and wish you, your wife Lyn and your family all the best in your retirement.  May it please the Court.

ALLSOP CJ:   Mr Anastassiou.

MR P. ANASTASSIOU QC:   May it please the Court, I appear on behalf of the Victorian Bar to farewell Your Honour and to pay tribute to Your Honour’s 20 years of service as a Judge of this Court.  I shall not give a biographical account of Your Honour’s life and journey from childhood to the Bar and to the Bench, because there is an unwritten rule in this Court known as the rule against repetition.  I notice that my saying that has made the Chief Justice look more relaxed already.  Let me come straight to the point.

The Victorian Bar is proud of Your Honour’s service to this Court and of Your Honour’s contribution to the Bar and to the wider community.  The hallmark of Your Honour’s professional life, both as a Barrister and later a Judge of this Court, is your acute and unerring empathy for the human condition, particularly for the weak, for the disempowered, for the minority and the outsider.  The President of the United States, Barack Obama, said, in relation to the appointment of Judges:

We need somebody who’s got the heart, the empathy to recognise what it’s like to be a young teenage mum, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old, and that’s the criterion by which I’ll be selecting my judges.

If President Obama were the Commonwealth Attorney-General in 1995, he would have appointed Your Honour.  On a lighter note, I venture that if Barack Obama were a Victorian, like Your Honour, he would barrack for Collingwood.  Your Honour’s modesty and self-effacing humour was undiminished by your appointment to the high office of the Judge of this Court.  

I am told by a member of our Bar, who at the time was an Associate to another Judge of this Court, that he ran into you at a baggage carousel at the Sydney Airport.  Your Honour had a Commonwealth car waiting to take you and your trusted EA, Ms Nancy Thurgood, into town.  Of course, there was no car waiting for the Associate.  And so, naturally, Your Honour offered the young Associate a lift into town.  That is unsurprising, but what followed was surprising – at least to the Associate.  When Your Honour got into the car in the back seat, Your Honour introduced Ms Thurgood as Justice Marshall and yourself as Her Honour’s Associate.  I am told that Her Honour Justice Marshall was delighted by her momentary elevation and played the role with authenticity and courtesy.  

As will be apparent from this anecdote, Your Honour has shown us the importance of not taking ourselves too seriously.  Your Honour has enjoyed very warm relations with the staff of the Court and your Associates.  The Registry staff, EAs and other support staff all speak of Your Honour’s warmth and friendliness.  You are known for a somewhat impish sense of humour and for using it to good effect to put others, who may be feeling subordinate or uncomfortable, at ease.  This is a fine quality and has rightly endeared Your Honour within the Court.  Your Honour’s modesty and unfailing consideration for others set the tone in proceedings that came before you.  

Your Honour is widely admired at the Bar for the way in which you conducted your Court, in particular for your fair consideration of all litigants who came before you and the courtesy and encouragement you showed towards Counsel.  In the industrial jurisdiction, where tensions between opposing parties can reach tribal proportions, Your Honour is admired for the fairness you showed towards both sides.  A leader of the Industrial Bar who appears on the employers’ side and is present today said to me, “His Honour ran a very decent Court.  Even if they lost, my clients always felt they had had a fair hearing.  He is exactly the sort of fair-minded person you want as a judge.”  Your Honour’s contribution to the administration of justice as a Judge of this Court has substantial and impressive.  

Consistent with the central theme in your life of helping others, you have also reached out to help a new and struggling nation, East Timor, to establish its industrial relations framework.  You have helped train District Court judges in East Timor in labour law, and, as mentioned by Senator Ronaldson and the Chief Justice, in 2008 you became an Associate Member of the Judicial Monitoring Programme of East Timor.  Your Honour’s long service to East Timor has helped entrench the Rule of Law in that nation.  

As is well-known, your father, your grandfather and your great-grandfather were all waterside workers.  Their story and the story of waterside workers in Melbourne is compellingly told in Wendy Lowenstein and Tom Hills’ well-known oral history of the waterfront workers, entitled Under the Hook.  It should not be forgotten that the waterfront was the last sector to hire day labourers from the pool – save for the Bar.  Obviously, the analogy with the Bar is spurious, but there is a degree of irony in Your Honour having come from a family of day labourers only to end up becoming one.  

That brings me to Your Honour’s time at the Victorian Bar.  Your Honour was widely known and respected as a leader of the Industrial Bar.  In keeping with my promise not to offend the rule against repetition, I shall not say anything about the famous Marshall Index you devised.  At the Bar, Your Honour was in heavy demand in the industrial jurisdiction.  The reality is that in this field of the Bar, it tends to be bifurcated between the employer and employee sides.

You were clearly on the employee team and represented your clients with much the same passion as you support the Collingwood Football Club.  That said, you were also known for your courteous and collegiate way in which you conducted even the most bitterly fought case, which I recognise does tend to undermine my comparison with Your Honour’s passion for the Collingwood Football Club.  What is it about Collingwood that can turn even the most balanced and rational individuals into tribal warriors?  To be fair to Your Honour, that does seem to be a widespread phenomenon amongst Collingwood supporters.  

I have digressed from Your Honour’s life at the Bar.  You appeared in many major industrial cases of that time.  A particularly important one was the High Court decision in Australian Education Union v  Victoria in 1995.  Your Honour 
appeared as Junior Counsel for the State Public Services Federation and the Australian Municipal, Administrative and Clerical Services Union.  The case concerned the coverage of State public sector employees by federal awards and arose against the background of budget cuts that would result in many job losses.  To adopt the vernacular of the time, the unions were fighting a battle against being Jeffed.  At the Bar Table were Keane, Gageler, Doyle, Douglas and Young, all of whom, like Your Honour, went on to become judges.  

Finally, there has been much said publicly about Your Honour’s advocacy for so many in our community who suffer from depression or mental illness.  Your courage has already been acknowledged by my friend, so I will not dwell on it.  However, so there be no doubt about the attitude of the Victorian Bar, I shall offend against the rule I promised to abide just once and repeat what I said at the outset:  the Victorian Bar is proud of what you have done.  Indeed, in the area of health and wellbeing, the Bar has been motivated by leadership such as yours to do more for our members who are grappling with distress or mental illness.  On behalf of the Victorian Bar, I congratulate Your Honour for your outstanding contribution as a Judge of this Court.  I wish you and your wife Lyn and your family joy in retirement.  May it please the Court.

ALLSOP CJ:   Ms Miller.

MS K. MILLER:   May it please the Court, I appear on behalf of the Law Institute of Victoria and the Solicitors of this State to pay tribute to Your Honour’s service to the Law over many years.  Your Honour’s career in the Law began at Law School at Monash University, having gradated as dux at St Bede’s in Mentone.  Your judicial colleague Justice Bromberg was in his first year when you were in your last and remembers Your Honour as friendly and welcoming and already an expert in industrial relations, having written an Honours thesis on section 5 of the Conciliation and Arbitration Act, which made it unlawful for employers to discriminate against employees on the basis of their union membership or activities.  

While at Monash, you approached a guest lecturer and asked his advice about articles, and, impressed by your commitment and keen interest in labour law, the lecturer recommended you to his son, Simon Williams of Maurice Blackburn, and so it was that you and Mr Williams came to constitute the Employment and Industrial Section of Maurice Blackburn and Co.  Despite the firm’s commitment to that area of Law, the Section did not make a great contribution to the bottom line, and at one stage, due to space requirements, you and Mr Williams worked side by side out of the office library.  You both survived, and Mr Williams tells us that proximity was a factor that strengthened your friendship.  

From Maurice Blackburn, you went to Owen Dixon Chambers, where you built up a practice in employment and industrial relations law, and we have already heard from a number of speakers about the Marshall Index and your generosity in sharing it.  I will say that that generosity was well taken up.  Your colleagues recall a queue of Barristers and even the occasional Judge milling about your Chambers hoping to get 
a peek at the famed Index.  Indeed, Your Honour is remembered generally as being a particularly generous person, both professionally and personally.  

Justice Bromberg recalls your early days together as Junior Barristers.  It was a naturally competitive environment, but he recalls that Your Honour was always happy to pass on work and always available to offer your perspective on a case.  You have said that you were inspired as a child to go into the Law by watching Perry Mason on TV.  You have also said that you saw the Law as an instrument for social change, and that is how you have always approached your role within it, whether as Solicitor, Barrister or a Judge of this Court.  

It could be said that the desire for social change runs in Your Honour’s family.  In Your Honour’s welcome speech to the Industrial Relations Court 20 years ago, the then-President of the Law Institute of Victoria, Mark Woods, mentioned that your great-great-grandfather was Peter Alexander, who fought alongside Peter Lalor at the Eureka Stockade and died of his wounds there.  

Your Honour’s experience in industrial matters could also be said to have begun early.  When you were 15 years old, you accompanied your father and grandfather to the docks, where we’ve already heard that they worked as wharfies.  Instead of loading frozen meat with the workers, you decided to go fishing.  Mistaking you for an insubordinate worker, the foreman declared that you were to be sacked.  The incident could have shut down the entire waterfront had it not been for your grandfather’s admission that you weren’t much good as a wharfie, anyway.  

Your Honour’s appointment to this bench 20 years ago came at a time when the Legal Profession and the Courts were in their infancy in understanding the importance of diversity.  Women were making some advances in gender diversity, but our understanding of the importance of diversity of thought that comes with different experiences, be they social, education or cultural, was not well-developed.  Anyone looking at Your Honour’s path to the bench today would probably describe it as orthodox:  Law at Monash University, Articles at a well-established firm and then a successful career as a Barrister.  

Yet 20 years ago, there were murmurings about whether it was appropriate for someone with your background to be appointed, Your Honour’s sins apparently having been no more than first, you had been an industrial relations lawyer;  second, you had acted for unions;  and third, you had working-class parents.  It’s a timely reminder that when we talk about merit and appointments to the Bench, we all need to check our unconscious biases.  

My personal experience of Your Honour on the Bench has been nothing short of delightful.  I spent the early years of my career in the Federal Court in migration litigation, and had the good fortune to occasionally have a matter listed before Your Honour.  At the time, I knew little of the ways of Judges, and you always seemed to me to be everything a Judge should be:  fair, courteous, respectful, smart.  There was one thing, however, that made Your Honour stand out from all the other Judges, and 
it was Your Honour’s tie.  During this time, Your Honour wore a South Park tie.  It seems a silly thing to mention, but this tie absolutely intrigued me.  I wondered how Your Honour got away with it.  

To a junior lawyer, as I then was, the Legal Profession seemed to be highly regulated in its dress code and in – to that – and in that context, the tie seemed quite contrary.  I loved that tie.  In it, I saw the possibility that even though I had become a lawyer, I could still be a normal person with a sense of humour.  This was an important message for a young lawyer to receive and a welcome contrast to the other message I received early in my career, and that message had been delivered via an article outlining the many health issues experienced by lawyers, including the truly shocking rates of mental health issues.  The message was loud and clear:  being a lawyer can make you sick.  

At the time, not many were talking about these issues, and the conversations that were taking place were firmly rooted in statistics and generalisations.  No one was talking about personal experiences of mental health conditions, and consequently, nothing really changed.  It is against this background that Your Honour spoke at the launch of the Wellbeing and the Law in 2013 and, in doing so, well and truly changed the game.  Your Honour did what no one else had been able to do before:  talk openly and honestly about Your Honour’s own experiences in struggling with mental illness.  And in doing so, Your Honour demonstrated leadership.  

I have already noted that you were attracted to Law as an agent of social change.  In the end, it was you who were the agent of social change on the Law,  or to be more precise, the Legal Profession.  Your contributions to Wellbeing and the Law or WATL, as it is also known did not end with its launch.  LIV past President and Director of WATL, Reynah Tang, who is here today, describes you as having been an outstanding ambassador for WATL and generous in your willingness to contribute to improving the welfare of the profession.  You have identified a number of strategies in which lawyers can help build their resilience.  

Your interest or perhaps I should say your obsession for certain sporting activities has clearly played an important part in that, and we’ve heard of your passion for horseracing and also for the Collingwood Football Club.  Indeed, we have heard of the picture of you in the Collingwood cheer squad which was provided to the media in 2011, and I would like to elaborate on that illustration.  You were pictured with the legendary Joffa Corfe, he of the golden jacket and flowing silver locks, who was expressing his views about an issue of Football Law with non-verbal eloquence.  Your Honour also seems to have been vociferous on this issue of contention, although, it should be said, in a rather less graphic manner than the famed Joffa.  

It has been more than 20 years since you were first welcomed to the Federal Court Bench, and those who have occupied the same Bench attest to its incredible demand on the time, energy and commitment of even the most dedicated Judge.  The fact that you have been able to do so for 20 years has been described as heroic.  In that 
quarter, you have now given enough, and it is perhaps time that you have the opportunity to engage in the kind of work-life balance that you have emphasised to so many others as essential to a lawyer’s wellbeing, and I trust that more Collingwood cheer squad appearances are in the offing.  On behalf of the Law Institute of Victoria and the Solicitors of this State, I thank Your Honour for your service and your leadership and wish Your Honour all the very best in the next stage of Your Honour’s life.  May it please the Court.

ALLSOP CJ:   Justice Marshall.

MARSHALL J:   The Honourable Justices Nettle and Gordon of the High Court of Australia, The Honourable Sir William Young of the Supreme Court of New Zealand, Chief Justice Blow of the Supreme Court of Tasmania, The Honourable Susan Crennan, Chief Magistrate Rinaudo of the Queensland, Chief Justice Allsop, fellow Judges of this Court, and other judicial colleagues, former Attorneys-General, The Honourable Michael Duffy and The Honourable Mark Dreyfus, who also doubles as my Local Member, serving his constituent, The Honourable Senator Stephen Conroy, State Attorney, The Honourable Martin Pakula, State Treasurer, The Honourable Tim Pallas, distinguished guests, member of the legal profession, family and friends, I am the only thing between you and a sumptuous morning tea, so I will keep it brief.

I thank the speakers, The Honourable Senator Ronaldson, Mr Anastassiou, Mr McLeod, and Ms Miller, for your kind words, which were over-generous and totally undeserved by me.  I thank those of you who have travelled so far and have taken time out from your busy schedules to be here, from Perth, Sydney, Canberra, Brisbane, Hobart, Christchurch, and all the places in-between.  Many of you have travelled to be here, and I greatly appreciate your presence, as well as that of the locals.  I acknowledge the traditional custodians of the land on which this Court complex sits, the Wurundjeri People of the Kulin Nation.  I pay my respects to their elders, past and present.  I also acknowledge the amazing work done by my colleagues in the Native Title jurisdiction of this Court, and the importance of that work in the reconciliation process between indigenous and non-indigenous Australians.

It seems a lifetime ago that I sat at my welcome held in the Industrial Relations Court of Australia, one week before I took the Oath of Office as a Federal Court Judge in 1995 in the chambers of Chief Justice Black.  At that time, I commenced by thanking my wife Lyn, my children Kate and Amy, for their support and encouragement.  Several of the 20 years I have served on the Bench have been difficult for each of them, including absences from home on many occasions, and being obsessed with work, often at times to the detriment of domestic matters when I was at home.  Each of Lyn, Kate and Amy has given me love, support, encouragement and solace to survive those 20 years on the Bench, and for that I am extremely grateful.  

In July 1995, my primary appointment was to the Industrial Relations Court of Australia, with a cross-appointment to this Court.  I wish to acknowledge the role of 
The Honourable Michael Duffy, The Honourable Tim Pallas, and Mr Ross McClure, the latter of the Australian Government Solicitor’s office, in recommending that appointment to the then Attorney-General, Michael Lavarch.  I acknowledge the former Chief Justice of the Industrial Relations Court of Australia, The Honourable Murray Wilcox, for his friendship and guidance.  Murray was a magnificent Chief Justice.  He gave me the confidence to progress as a young Judge in the jurisdiction to which, until then, I had devoted my entire working life.  Murray’s support and encouragement gave me the confidence to approach the expanded jurisdiction conferred on me after the effective incorporation of the Industrial Relations Court into the Federal Court in May 1997, and to cope with the ensuing stressful exponential learning curve.  It was interesting to have barristers remind me of the concepts I had never heard of, and have my Associates go to find out what they were.  

I thank those who helped smooth the path to July 1995.  At Monash University, I was influenced and inspired by the teaching of Professor Ron McCallum and Mr Peter Hanks.  Both taught me to think about the law as a concept designed to aid social good, rather than just for its own purpose.  As an articled clerk and young solicitor, I was privileged to work under the guidance of Mr Simon Williams, later Senior Deputy President Williams of the Australian Industrial Relations Commission.  Simon was at Maurice Blackburn & Co as the industrial partner.  At the Bar, I was fortunate to read under the late Jim Kennan, and my former colleague, The Honourable Peter Gray.  I learnt much from their guidance, especially from Peter, who was extremely generous with his time, and also a brilliant junior counsel who, had he not been appointed so young, at 38, would have been one of the great Silks.

I had the fortune to appear as junior counsel to many great leaders from whom I learnt so much.  These included Michael Black, Ron Castan, Alan Goldberg, Ron Merkel, and Richard Kenzie, the latter from the Sydney Bar, the industrial jurisdiction, of course, being very much a national jurisdiction.  On the Bench in the Federal Court, I served with three Chief Justices, and still do serve with one until tomorrow.  They are Michael Black, Patrick Keane, and James Allsop.  Each had his particular strengths and ways of managing the Court.  I thank them for their contribution to my judicial development.  Throughout the last 20 years or so, the Court has been assisted very ably by Mr Warwick Soden as the Principal Registrar.  In my opinion, Warwick is the glue that holds the Court together.  I will be forever grateful for the assistance he has given me, particularly in recent months in my transition to retirement.

I have had the benefit of excellent staff to assist the smooth operation of chambers.  The Judge, after all, is only the front man, or woman.  I have had the two Executive Assistants, Nancy Thurgood and Julie Phillips.  Chambers ran very smoothly because of their work ethic, and their dedication to getting the tasks in the docket done efficiently.  I also acknowledge Wendy Dark, who, while working full-time for Justice Tracey, has also assisted me during my recent long service leave leading up to my retirement from the Court.  I have been ably assisted over the years by 17 Associates, most of whom are here today, including Peteris Ginters, a leading 
member of the Sydney junior Industrial Bar, who has come down from Sydney for this occasion.  

I thank my judicial colleagues for their friendship and collegiality.  I thank all of those who have appeared before me and assisted me to do my job to the best of my ability.  I have always felt especially a great affinity with the Bar.  I thank all court staff, court attendants, library staff, computer staff, administrative staff, cleaners and security personnel, especially Kevin, who survived the latest round of contractor changes.  Finally, I thank my friends in the profession and outside it who have sustained me in difficult times, especially in the last few years during my well-publicised battle with depression.  I draw on the strength and encouragement of each of you, together with family, who I earlier commenced by thanking, in continuing to fight that battle with a positive attitude.

In particular, I thank Associate Justice Judge John Efthim for his regular phone calls, including his excellent racing tips, especially from the Darren Weir stable, although he didn’t tip me the Melbourne Cup winner.  I thank Michael Tamvakologos and Tom Percy QC for their wise counsel in matters that they will know about, and are very dear to my heart.  I look forward to the next stage of my life.  I hope to continue to make some contribution to the public good, as well as spending more quality time with family and friends.  

ALLSOP CJ:   The Court will now adjourn.  

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