Ceremonial Sitting of the Full Court
For the Swearing in and Welcome of the Honourable Justice Wigney
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP, CHIEF JUSTICE
THE HONOURABLE JUSTICE JACOBSON
THE HONOURABLE JUSTICE BENNETT
THE HONOURABLE JUSTICE EDMONDS
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE ROBERTSON
THE HONOURABLE JUSTICE GRIFFITHS
THE HONOURABLE JUSTICE FARRELL
THE HONOURABLE JUSTICE WIGNEY
9.29 AM, MONDAY, 9 SEPTEMBER 2013
WIGNEY J: Chief Justice, I have the honour to announce that I have received a commission from her Excellency the Governor General, appointing me a judge of the Federal Court of Australia. I now present my commission.
ALLSOP CJ: Thank you, Justice Wigney. District Registrar, would you please read the commission aloud.
Commission of appointment of a judge of the Federal Court of Australia. I, Quentin Bryce AC CVO, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, and under section 72 of the Constitution and subsection 61 of the Federal Court of Australia Act 1976, appoint Mr Michael Andrew Wigney of Senior Counsel, learned in the law, to be a judge of the Federal Court of Australia assigned to the Sydney registry beginning on the 9th day of September 2013 until he attains the age of 70 years. Signed and sealed with the Great Seal of Australia on the 5th day of August 2013, Quentin Bryce, Governor-General, by her Excellency’s command Mark Dreyfus QC, Commonwealth Attorney-General.
ALLSOP CJ: Thank you. Justice Wigney, I now invite you to take the oath of office.
WIGNEY J: I, Michael Andrew Wigney, do swear that I will bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to law, that I will well and truly serve her in the office of judge of the Federal Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill-will, so help me God.
ALLSOP CJ: Justice Wigney, I invite you to subscribe to the oath that you have just taken. District Registrar, I hand you his Honour’s commission and the oath of office for you to record a copy of the commission and the oath of office in the court’s records. Justice Wigney, on behalf of all the judges of the court around Australia I would like to wish you the warmest welcome. Everyone is very pleased to have you on the court and I wish you well in the coming years on the court. Mr Solicitor.
MR J. GLEESON SC: May it please the court. It’s a great honour and privilege to be here today on behalf of the Australian Government to welcome your Honour Justice Michael Wigney to the bench of this Federal Court of Australia. Could I acknowledge the presence here of justices of the High Court, Supreme Court of New South Wales, the Federal Circuit Court, the District Court, former judges of this court, and other distinguished guests. The Governor-General made your Honour’s appointment in early August of 2013. As you were then appearing as counsel in an ongoing matter, the announcement was made a little after that, and today we can celebrate your Honour’s fitting and well-received appointment to this court.
Here with you today are members of your family, including your mother, Gloria; your wife Sally, a registrar of the Family Court of Australia; your children Lucy, Clare, Harry and Nick; and your brother David. While your father, Brian, was unable to travel from his home in Noosa to be here today, no doubt he is immensely proud of you. So too would be your brother Steve, currently residing in Singapore. Your Honour’s appointment has been widely applauded by the legal fraternity and is a fitting recognition of your skills, expertise and experience. Your family, friends and colleagues are enormously proud of you and they have all made a contribution to your successful career.
Could I say a little about your formative years. The dinner table in your childhood home at Frenchs Forest may well have been an early training ground for your chosen profession, with vigorous discussion enjoyed by your Honour, your parents and your brothers. Your Honour’s eldest brother, Steve, has suggested that growing up with two brothers would definitely have helped you to develop a keen interest in the related topics of social justice and private property. Your Honour’s parents instilled a competitive, but fair, spirit in their three sons. Your mother had twice represented our country in athletics at the Olympic Games – Melbourne 1956 and Rome 1960 – and had won a bronze medal in the 1958 Commonwealth Games.
And your father also played top grade competitive tennis until very, very recently, having given it up only at the age of 78. Your Honour’s schooling commenced at Wakehurst Public School and continued at Davidson High. There you played cricket and rugby, travelling a number of times to New Zealand with the school rugby team. Your Honour attended the University of Sydney, graduating with a Bachelor of Economics in 1985, Bachelor of Laws in 1988; and your mother also deserves a degree for her extensive legal knowledge as a result of typing out all of your essays, I’m told. Following your admission as a solicitor to the Supreme Court, you commenced work, initially, at Clayton Utz, working in areas such as company insolvency, liquidation, bankruptcy and trade practices.
It was in 1989 that you moved to the office of the Commonwealth Director of Public Prosecutions, initially as a legal officer and later as a principal legal officer. In the fraud section you worked on the most difficult and complex cases. You were regarded as one of the stars of the office, but at the same time you were friendly, helpful and encouraging of others. In 1992 you married your wife, Sally, whom you had met at the University of Sydney. She has been very supportive throughout your career as you have been of hers, and I’m sure she is immensely proud of what you have achieved today without the need to compromise your devotion to your family.
In your barrister’s career you commenced in 1993 as a reader on the Eleventh Floor, Wentworth Selborne. In 1994 you moved to Third Floor, Selborne Chambers. It was in that year you completed your Master of Laws at the University of Sydney. In 1996 your first child, Lucy, was born. In the following year you and Sally did better with the arrival of triplets, Clare, Harry and Nick, and traded in the Peugeot for a Tarago in a very short period of time. Your family has always been exceptionally important to you, and both you and Sally always made sure one or both of you were home from work in time for bath, bed and stories. In 1998 you helped establish Third Floor St James Hall Chambers, led by Ian Temby AO QC, where you remained until today.
You were always a great contributor to life in chambers: a director since 1999, and always finding time to share your insights with younger barristers. I’m sure your Honour will be greatly missed by your St James Hall colleagues, many of whom are here today. Could I say a little about your Honour’s practice as a barrister. You were involved in a wide range of areas, but many of them complex specialties in their own right. In the criminal law sphere you have acted in almost every high-profile insider trading proceeding in the last 15 years, as well as a range of other complex matters involving companies and securities offences, taxation contraventions, extradition hearings and other regulatory matters.
You’ve had the carriage of a large number of prosecutions for drug-related offences, including under the Customs Act. Your commercial law experience is equally extensive, having acted on behalf of, amongst others, the ACCC in matters of what we used to call part 4 and part 5 of the Trade Practices Act – perhaps they’re still called that – I’m not sure. Your Honour’s expertise also ranges across a large amount of private law matters in the areas of company and commercial disputes, sale of goods, contract building disputes and arbitrations. Finally, in terms of your expertise at the bar, could I mention a strong grounding in taxation law, which has seen you involved in matters involving overseas tax havens, tax fraud and money laundering.
You’ve been involved in a number of cases arising out of Project Wickenby which have made an important contribution to the clarification of the powers of the Commissioner and the construction of relevant provisions of the Commonwealth Criminal Code. Your reputation as a highly skilled member of the Bar has seen you briefed extensively by the Commonwealth DPP, the TGA and the Health Insurance Commission. In addition to this, you were counsel to a number of the major commissions of inquiry over the last decade, including in 2002 the Human Rights Commission Inquiry into Children in Immigration Detention, 2005 the Cole Inquiry into the UN Oil for Food Program. You have also been counsel assisting in a number of high profile inquests in the Coroner’s Court. Your courteous, even-tempered and patient manner, displayed across all your work, particularly came to the fore in that Court and your empathy and composure has been noted by many from that sphere.
In 2007, you were appointed Senior Counsel in New South Wales, a fitting recognition for your capacity and experience. While you are a successful barrister and a persuasive advocate, you also derive much enjoyment, perhaps most, from resolving the particular problem before your clients.
Your interests will probably be developed on more by others, but enough for me to say you are described as “energised and super-fit”, both to be commended. You love sport. You play tennis well, you cycle and go to the gym most days and share a love of surfing with your children. I am told that you once attempted to share your passion for surfing with one of your new colleagues, the Honourable Justice Edmonds, when, in court, you attempted to demonstrate a concept by explaining to him the example you being a professional surfer in Byron Bay, New South Wales. This analogy, apparently, was of absolutely no assistance to Justice Edmonds and your Honour simply moved on by saying that perhaps you had revealed where you would rather be.
In conclusion, your Honour, I'm sure that the enthusiasm and drive you have clearly had for your career at the bar will continue, as you take your place on the bench of this great Court. The skills, experience and integrity in areas, some of which I have been able to touch upon, will see you become a great asset to this Court and as the jurisdiction of the Court ever expands and diversifies, particularly in regulatory and criminal areas, you will play a significant role.
On behalf of the Government and the people of Australia, I extend to you my warm congratulations on your appointment and welcome you to the bench of this Court. May it please the court.
ALLSOP CJ: Mr Boulten.
MR P. BOULTEN: May it please the court. It is a privilege to speak this morning on behalf of both the New South Wales and the Australian Bar Associations. The expectations of your Honour’s appointment was widespread, especially over the last three or four weeks. The combination of your Honour’s continuing involvement in an important case and the Government’s caretaker mode operated as a protected cause of insider knowledge in Phillip Street. But that did nothing to diminish the enthusiasm and the commendation that the news of your appointment has received.
Justice Wigney, you graduated from the University of Sydney with a Bachelor of Economics in 1985 and a Bachelor of Laws in 1988. According to your academic record, part of your third economics course was devoted to the study of post-Keynesianism, which is more of a narrow tent rather than a broad church. You also immersed yourself in the elite intellectual environment of joining the university’s economics and industrial relations societies.
Your Honour is one of many recent judicial appointees who have combined the disciplines of economics and the law, such as the Honourable Justices Gageler, Gleeson and Darke, to name a few. Collectively, you and your economics-trained colleagues will enhance the capacity of our state and federal courts to adjudicate on complex tax and competition cases.
Your Honour was admitted as a solicitor of the Supreme Court of New South Wales in 1988, and you began practising at Clayton Utz. In March 1989, you accepted a position as a legal officer, general prosecutions, in the Office of the Commonwealth DPP. There began your accumulation of experience with an array of federal, civil and criminal laws encompassing social security, tax, customs and narcotics. Before long, your Honour was promoted to senior legal officer, then principal legal officer in the major fraud section of the Commonwealth DPP, where you had carriage of matters relating to fraud and other complex offences under the Trade Practices Act. In January 1991 your Honour became principal legal officer in the corporate prosecutions section of the Office of the Commonwealth DPP. These were the early days of the corporations law which made you something of a pioneer in the Commonwealth’s prosecution of matters under that legislation.
During this time, you did postgraduate study and you gained a Masters of Law degree, principally in securities regulation, restrictive trade practices and administrative law. You began practising at the New South Wales Bar in March 1993. For six months you shared a room on 11 Selborne Wentworth and for another six months you pushed a trolley while you read with Michael Cashion and Cliff Hoeben. Your pupillage report reads:
Michael is developing into a skilful advocate. His research procedures are thorough and effective. I believe he will be a credit to the Bar.
Prescient remarks indeed. Your Honour soon acquired a reputation for being a diligent and versatile advocate with a calm and reassuring demeanour. Initially you built a practice in administrative, criminal, trade practices law and taxation. In the finest traditions of the cab-rank principle, your Honour accepted briefs for the prosecution and the defence in complex matters relating to white-collar crime. Rene Rivkin was one of the business identities whose solicitors managed to beat ASIC in the race to secure your services. On the other hand, Ray Williams and Rodney Adler were unlucky enough to be prosecuted by you. Your Honour’s experience as a criminal lawyer is wide-ranging.
You prosecuted significant narcotics trials and many other cases under the tortuous Commonwealth Criminal Code Act. One of your Honour’s last cases was appearing for one of the appellants in the Court of Criminal Appeal concerning Australia’s longest-running terrorist trial. If and when this court ultimately gets to hear its first criminal jury trial, your Honour will be well-qualified to preside at it. As the Solicitor-General has mentioned, in 1998 you helped establish Third Floor St James Hall and have remained a director and secretary of that floor. The ways in which barristers’ chambers are managed can be an interesting point of discussion, ranging as they do from benign dictatorships to flawed experiments in democracy.
I couldn’t glean any information as to where your Honour was located on that spectrum, but some of your colleagues did allude to a perceived lapse in your taste for interior decoration following a visit to the subcontinent. Sources on your floor describe this as your unfortunate Indian stage. Thereafter, your chambers reverted to a more comfortable and familiar mix of surfing paraphernalia and lever-arch folders from Commonwealth regulators. Your Honour rides a bike to work, a fact that hasn’t gone unnoticed in some quarters. During an inquest, you made quite an impression on a blogger who was sitting apparently in the public gallery. He – or perhaps it was a she – said:
Michael Wigney’s stamina, clarity, focus and thoroughness over these long sessions are indeed impressive. His vocal cords must have the stamina of David Beckham’s legs.
I digress. I needn’t remind the court that in many notable cases, your Honour has appeared for and against the Federal Commissioner of Taxation. Some notable cases were One.Tel, Saga Holidays, South Steyne Hotel and Southgate Investments. This experience is reflected in your learned contributions to the academic literature on tax law. In April 2011 you delivered the keynote address at the 23rd Annual GST Conference – that must have been exciting – and you published what has become an authoritative article in the Australian Tax Review on text, context and interpretation of a practical business tax. The article began with a clear proposition. You said:
Statutory construction is a topic or issue that is or should be dear to the heart of any tax specialist or tax lawyer.
It must come as a matter of immense disappointment to some specialist practitioners when a judge or worse still a bench of judges appear to sweep aside all this background and context and arrive at an interpretation of a particular provision of the GST Act by focus on – dare I say it – the text of the Act, that is, the words actually used in the legislation.
I think that’s a good insight for those of us who might happen to appear in front of you in this court. Your Honour took silk in 2007. In recent years you appeared as counsel assisting in various coronial inquests and commissions of inquiry. In 2006 there was the Cole Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme. In 2009 you assisted at the inquest into the deaths of four people in a collision between a ferry and the pleasure craft Merinda on Sydney Harbour, and in 2011 there was the inquest into the death of Mullumbimby student Jai Morcom. More recently, in 2012 your Honour assisted Gail Furness SCs commission of inquiry for the Independent Liquor and Gaming Authority into Sydney’s Star Casino.
The Solicitor-General has well-covered your Honour’s extra-curial life and has explained the exponential growth in your family when the triplets arrived, but it is necessary to understand the full impact of that momentous event. Until their arrival, your Honour was living a very comfortable existence, I’m told. You and Sally had settled in a trendy terrace house in Redfern. Your arrival in that suburb with your fast car, jaunty tennis apparel and your insouciant approach to life so completed the gentrification of the neighbourhood that the suburb’s name was immediately changed to East Redfern. But once the triplets were born, everyone was off to Lane Cove in a Tarago.
Justice Wigney, barristers in every state and territory of Australia can be confident that you bring to this bench a wealth of experience and understanding of the Federal jurisdiction. I join in the chorus of those congratulating you and wish you every success in the years to come. May it please the court.
ALLSOP CJ: Mr Dobson.
MR DOBSON: May it please the court. On behalf of the Law Council of Australia and the Law Society of New South Wales, I extend my congratulations and good wishes to your Honour. There are some lawyers who for one reason or another seem predestined for a judicial career. One of your Honour’s early colleagues certainly took this view of you. When you were working on the prosecution of Brian Yuill following the collapse of Spedley Securities, the facts of the case included the purchase of a Cobra sports car, variously described by enthusiasts as a classic, mighty and legendary sports car and racing car. This prompted your colleague to print out a large photo of the Cobra and to add the caption, “Justice Wigney driving his new sports car”.
Although perhaps less poetic than the prophecies of Nostradamus, today at least half of that prediction has come true. Your Honour attended Davidson High School at Frenchs Forest before embarking on tertiary studies at the University of Sydney. You completed a Bachelor of Laws with Honours, Bachelor of Economics and later a Masters degree. During your time at Sydney University, your Honour met your future wife, Sally McNamara, who is currently a registrar of the Family Court of Australia. I’m sure your wife Sally and children Lucy, Claire, Harry and Nick are extremely proud to be here today and to join in this celebration of your achievements. Admitted to practise in 1998, your Honour commenced a career as a commercial litigator in a major national firm.
You then moved to the Commonwealth DPP, where your Honour progressed very quickly through the ranks, becoming a principal legal officer in 1991. Your Honour was initially involved in general prosecution work, including fraud and drugs. You then moved to the commercial prosecutions section, where you worked on a number of high-profile matters arising from large corporate collapses, including the Spedley Security case. Your Honour was called to the Bar in 1993 and initially joined the eleventh floor of Wentworth Selborne Chambers. You then moved to the Third Floor Wentworth Chambers before spending 15 years at Third Floor St James Hall Chambers. Your Honour was appointed to senior counsel in 2007. Your Honour has been a counsel of choice and favourite go-to person for many firms across the range of high-profile and complex corporate and commercial litigation.
You continued your association with the Commonwealth DPP after being called to the Bar, undertaking a number of prosecutions with a focus on commercial and ASIC cases. These included insider trading matters where you also appeared at times on behalf of the defendant. Some of your better-known clients included Rene Rivkin and Simon Hannes, a case which featured a lucrative share purchase by a fictitious character. Solicitors who have briefed your Honour say that you are enthusiastic and an intelligent advocate who is passionate about your work and who does a really good job for clients, both prosecution and defence. When taking a promising case, you are known to say, “That’s a goer.”
You are easy to work with and have a great sense of humour, which brings light relief to difficult circumstances, and it has been acknowledged that your appointment to the bench is a huge gain for the Federal Court but a huge loss for the solicitors who briefed you. Mention was also made of your Honour’s stylish cufflinks, although I’m not sure that this was taken into account in the judicial selection process. Your Honour has been counsel assisting in a number of major commissions of inquiry and inquests. Your performance during the Jai Morcom inquest was described by one commentator as follows:
In this inquest Michael Wigney is indeed impressive. He stands for the entire day questioning the witness in every tiny detail. His vocal cords must have the stamina of David Beckham’s legs. Any actor or teach will tell you how strenuous it is talking all day, and especially when there is great repetition of what is being said, with full names being used at all times. Michael Wigney’s stamina clarity focus and thoroughness over these long sessions are indeed impressive.
The commentary continues to sing your praises, referring, in particular, to the cross-examination of a young witness as follows:
For the next one and a half hours Michael Wigney questioned this boy over his statement in the most microscopic detail. … At one point the questioning was so serious and detailed my colleague whispered to me, ‘Is he trying to discredit him?’ I whispered back, ‘No. I think it’s the opposite’ … At the end of the day I have to salute the witness for integrity way beyond his years and for the professionalism correctly weighed against necessary humanity in Michael Wigney.
Not only are you agile on your feet in the courtroom, you are equally nimble on the tennis court, on a surfboard and on a bicycle. You, no doubt, inherited your love of sport from your parents; your mother, Gloria, representing Australia in 1956 and 1960 Olympic Games, and, as said, won a bronze medal at the 1958 Empire Games at Cardiff. We warmly welcome Gloria here today who must be very proud of what you have achieved, both in your personal and professional life. Your father, Brian, has also had a life-long passion for tennis and played at the top level.
Your Honour is a committed family man, blessed with four children in the space of two years. A solicitor who briefed you during that time suggested that the arrival of the triplets ushered in a period of joyful turmoil. This also meant that you had to trade in your trendy – as said before – Surry Hills terrace – and your soft top convertible for a family home and a Tarago People Mover. Perhaps your Honour’s next purchase will be that Cobra sports car. Your Honour, it’s my pleasure, on behalf of the Law Society of New South Wales and the solicitor of every state and territory, to once again offer my congratulations and very best wishes for your appointment. I wish you every success on the bench. As the court pleases.
ALLSOP CJ: Justice Wigney.
WIGNEY J: Chief Justice, fellow judges, distinguished guests, colleagues, friends and family. Thank you, all, for doing me the honour of attending today and sharing this moment with me. Can I thank, in particular, Mr Gleeson, Mr Boulten and Mr Dobson for their kind words. I have to say that I have been really quite terrified of the prospect of hearing others talk publicly about me on this occasion. My fears arose for two reasons. First, at risk of sounding too self-deprecating, or perhaps like a politician on the hustings, I’ve always considered myself a pretty average bloke whose achievements have been fairly modest, at least compared to those whose company I have now been chosen to keep.
As a result, I struggled to think of much that anyone could say about me that was particularly interesting. There is only so far that one can go with the theme “Boy from Davo High makes good”. Second, what perhaps concerned me more was that over the last week or so I’ve noticed a number of my colleagues - in particular David Pritchard - wearing malevolent grins as they pointed out they had been providing information to the prospective speakers. So, can I thank each of you, not only for somehow making me sound vaguely interesting, but also for ignoring much of what Pritchard and other disreputable sources probably told you.
Can I add two things. Firstly, in relation to the GST conference that was referred to, it was rather exciting, I must say. That’s because it was in Noosa and I managed to take my surfboard. And as for Mr Dobson’s reference to “turmoil”, that turmoil is continuing to this day.
Anyway, enough about me. What I really want to do today is to give my heartfelt thanks to a number of people without whose encouragement and support over the years I almost certainly would not be here today. First and foremost is my family, and first and foremost in my family is my wife, Sally. You’ve already heard something of our family situation, but put yourself in Sally’s situation in the mid-1990s: a solicitor with her own flourishing legal career, but within a short space of time married to a third year barrister - a bit of a hopeless joke - with a daughter just less than two years old, and newborn triplets.
Yes, people, that is four children under two. And yet, here we are some 16 years later. Words simply cannot describe Sally’s superhuman achievement in being the cornerstone of our family, raising four wonderful children, advancing her career and supporting me in mine; not to mention putting up with my surfing, cycling, tennis and various other misadventures. Words cannot express my gratitude. It must be said, however, that on occasion Sal’s way of showing her support is somewhat unique. For example, a typical weeknight exchange may go something like this: I come home with furrowed brow ruminating about the day’s case – let’s say a case about the GST treatment of a pair of spectacles.
Sal’s response is almost invariably along the following lines: “You call that a tough day? I did the divorce list. I did a mediation where the only thing dividing the parties was who would retain custody of the Barry Manilow cassette collection. I got home and your silly dog has chewed the dining room table, Harry has lost his blazer again, and we have a parent/teacher night tomorrow – you’ve forgotten, haven’t you?” I invariably had: game set and match. All thoughts of the GST treatment of spectacles vanished for another 12 hours, and it’s a good thing.
My wonderful children, Lucy, Clare, Harry and Nick have also played a unique supporting role over the years.
In short, by driving me completely mad they have somehow kept me sane – at least I think. Our robust discussions, usually at mealtimes, have prepared me to meet any court challenge. Let me illustrate how. I have, on more than one occasion, in different contexts, been accused by my children of depriving them of their basic human rights and contravening the International Convention on the Rights of the Child: perfect preparation, you might think, for those occasions where I have been called upon to appear for various Ministers of the Crown. I have also, on occasion, been foolish enough to attempt to cross-examine my kids in relation to various questionable entries in our credit card statements, such as itunes purchases, only to be met by an equally robust series of questions about entries in the same credit card statement for various online cycling or surfing stores.
Perfect preparation, you might think, for those occasions where I have represented persons of interest at various ICAC inquiries. I should add that, just quietly, I think Sally was somehow relieved to discover that the entries to “Wiggle” that occurred in those statements – that’s no more than a reference to an online cycling store. The chaotic exchanges that occurred in our household in the mornings when we were all preparing to go our separate ways often meant that, when I finally did get into chambers, and then to court, even a High Court special leave application seemed like a walk in the park.
And, at least after a special leave application you get the soothing pat on the shoulder, and reassuring words from your solicitor, “Don’t worry, mate. You gave it your best shot”.
I am, of course, being facetious. My family really does mean everything to me. The joy of watching my children grow up and mature, arguing with them about politics or sitting out in the surf with them on a Sunday morning or having them almost beat me at tennis, even helping them finalise their HSC designer technology assignment on the morning of my final appearance as an advocate at 6 am in chambers - these are the things that have sustained me.
I should also, of course, acknowledge and thank my mother and father and brothers, Steve and Dave. My mother, who is here today, often tells a story, and my thunder has been stolen about this, but typing my law school essays on an old manual typewriter on the dining room table and, as a result, she claims to know about the rule in Foss v Harbottle. She perhaps knows more about that rule than me. As you have heard, my father, who unfortunately could not be here today, was a fine tennis player and is largely responsible for my name being inscribed on the Honourable Bryan Beaumont Cup for the Bench and Bar Tennis. And if only my shoulder would get better, I could be there again.
I must, of course, also acknowledge my extended family, the McNamara and Alexander clan, who are here in force today. One could not wish for a more supportive and close-knit family to marry into. And my thoughts are, particularly with Sal’s mum, Sandra, who couldn’t come here today because she is in hospital.
Now that brings me to my many professional relationships that have sustained me during my career. As you have heard, I started out at Clayton Utz. What you haven’t heard is how green I was when I started there. Unlike many a junior solicitor these days, when I turned up to the Clayton Utz offices, I had never worked in an office before, let alone as a paralegal, having shunned the Summer Clerkship Program in favour of one more summer of coaching tennis and surfing.
The partner who was given the impossible task of turning me into a hard-nosed, commercial litigator was Ron Schaffer, who I think is here today, or at least he told me he was going to be, and I still fondly remember the ten memos I would receive from him each day, each successive one reminding me that I had not responded to the earlier one. Goodness only knows what it would be like being supervised by him in the days of email.
It was only my impatience to do more advocacy that led me to leave ‘Clutz’ for the Commonwealth DPP. And I have to say that it was my time at the Commonwealth DPP that made me the lawyer I am today. It was a fantastic place to work and a magnificent training ground for aspiring advocates, as I was, evidenced by the fact that many of my contemporaries from the DPP are now judges of various courts, coroners, magistrates, leaders at the Bar and, of course, many are still fighting the good fight, including the current Director who was a contemporary of mine at the DPP. And I am honoured that so many of you have attended here today.
As you have also heard, I had the very good fortune to be selected as the reader on the eleventh floor Wentworth Selborne and to read with Michael Cashion and the current Chief Judge at Common Law, Justice Hoeben.
I have to confess, however, that I have long harboured the suspicion that I was selected to read on that hallowed floor as a result of mistaken identity. It’s not just a matter of my relatively modest CV. I have a distinct recollection of being asked, during my interview for a place on that floor, how long have you been playing the clarinet? Never having picked up the clarinet before, the question threw me somewhat. I cannot quite remember what my response was, but it must have been okay because I got the gig. But if you did apply for readership on the eleventh floor at about the same time as I did, and you do play the clarinet, I think you might have been dudded.
When the eleventh floor clerk Paul Daley tapped me on the shoulder at the end of my reader’s year, I licensed a room on 3 Selborne, essentially at that time, as a stopgap measure until a room became available on the eleventh floor or some other established chambers. 3 Selborne, at that time, had recently been vacated by the Public Defenders, so it was full of licensees in essentially the same position as me. But, to cut a long story short, the rag-tag bunch on 3 Selborne all got along so well and had so much fun that we stayed together and have mostly been together since moving, en masse, to a floor we set up across the road at 3 St James Hall.
I owe almost 20 eventful years at the bar to my colleagues on 3 St James Hall. We celebrated the highs and commiserated the lows of life at the bar together. Arrogance, hubris and pomposity were shunned on our floor. Those who displayed those traits were the subject of merciless practical jokes, including one former member who almost cancelled his honeymoon after we created a fake brief that pandered to his ego but included a fictitious hearing date that just happened to coincide with his honeymoon.
Famous victories against self-represented litigants in the Wallsend Local Court became the stuff of third floor folklore. As much as I would love to, I cannot mention everyone from my old floor, but I must mention two. First, I must thank Ian Temby, who comes about as close to being my mentor as anyone. I didn’t appear in many cases with Ian, in fact, I think I only appeared in one, and I got him into that case. But Ian showed me, really by example, how to practise at the Bar with courage, grace, style and, above all, good humour and courtesy - I didn’t emulate his dress sense, though - but always with a firm grip on the correct work/life balance. Ian couldn’t come today because he is, I think, teaching advocacy in Oxford or Cambridge.
Second, I must also mention Anthony Spencer, the said prince of Wallsend, who was my fellow director, confidante and musical mate. I assure you, Anthony, that I will one day make it to the New Orleans Jazz Festival with you.
I should also thank all my former clerks and assistants, and I'm sure I will forget many, so apologies, but I would like to thank, in particular, in more recent times Liz and Louise and Tim and most recently, of course, Mel and Rosanna. It was truly a great pleasure to work with you all.
Thanks also to all the wonderful instructing solicitors that I have had over the years. I will truly miss the daily interaction with you all, but perhaps not the emails or the archive boxes that kept on being delivered to my room.
And, finally, I should also apologise to all my readers who were foolish enough not to heed my standard warning that I would be a hopeless tutor. My observation is that your careers are all surging ahead, despite the somewhat shambolic nature of your initial tutelage.
In recent weeks, a number of people have asked me why now. My standard response to this curious question was to point out that in the next two and a bit years, I will heave to live through four HSCs and 300 hours of learner driver training. Surely, a life somewhat more stable than life at the bar will assist in meeting that challenge. But the true answer is that I am truly and deeply honoured to be chosen to sit on this great court. When the former attorney rang me with the news some weeks ago, he said to me, “Thank you for agreeing to serve the people of the Commonwealth.” Those words very much resonated with me. My response was and is, “Mr Attorney, the people of the Commonwealth have given me the gift of a quality public education and many years of free tertiary education at one of Australia’s most esteemed universities. It’s my absolute pleasure to be able to give something back.”
ALLSOP CJ: The Court will now adjourn.