Ceremonial Sitting of the Full Court
To farewell the Honourable Justice Bennett
Transcript of Proceedings
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE MANSFIELD AM
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE BENNETT AO
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE JAGOT
THE HOUOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE GRIFFITHS
THE HONOURABLE JUSTICE KERR, Chev LH
THE HONOURABLE JUSTICE FARRELL
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE PERRY
THE HONOURABLE JUSTICE GLEESON
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE BROMWICH
9.36 AM, MONDAY, 14 MARCH 2016
ALLSOP CJ: Chief Justice French and Mrs French, The Honourable John Howard, The Honourable Sir Gerard Brennan, The Honourable Murray Gleeson and Mrs Gleeson, Justices Bell and Gageler and Chief Justice Bathurst, Chief Justice Murrell, The Honourable Richard Edmonds and Mrs Pamela Edmonds, The Honourable Philip Ruddock, President Beazley, The Honourable Keith Mason, Court of Appeal and Supreme Court Judges, Chief Judge Preston, President Walton, judicial colleagues, family and friends, ladies and gentlemen. May I welcome everyone here today on this occasion for the farewell from the Court of our colleague and friend Justice Annabelle Bennett. I acknowledge the Gadigal people of the Eora Nation, the traditional custodians of the land on which we gather, and I pay my respects to the elders past and present and I pass on the Commonwealth Attorney's apologies, one, for keeping you waiting and, two, he won't be able to get here and I apologise.
Justice Bennett, on your appointment to this Court in 2003 it was noted that you brought to the bench a wide range of skills and experiences including not only your expertise as a senior counsel specialising in intellectual property, but also your substantial medical and scientific knowledge and experience. In your time at the Bar you have been given the opportunity to combine all those qualifications and in the past 13 years those qualifications have likewise equipped you for the very wide variety of work arising in the Court and have enabled you to make a deeply significant and lasting contribution to the Court's jurisprudence, particularly, but not only, in the field of intellectual property where you have participated in many, many cases. The variety of this work and your adeptness in managing and addressing a range of very distinct topics is demonstrated through even a brief review that the demands of time today require of the many intellectual property cases on which you have sat. That review demonstrates the dedication, thoroughness and very often humour which you brought to your work on the Court.
Many will remember the Torpedoes v Thorpedo case, the DC Comics v Chequot where Nietzsche's concept of the ideal Ubermensch was discussed; ACCC v Global One where you helped clarify for the older members of the Court the position of Justin Bieber as a successful young singer, popular in the age group of 13 to 15-year-old girls. Mars v Sweet Rewards and lots of cases, but let me mention perhaps 2007 IceTV litigation over the humble TV guide. The Fairfax Press referred to the mouse that roared. The Age reported that "For almost a year Channel 9 insisted that IceTV service infringed copyright in its television schedule, but last week Federal Court's Justice Annabelle Bennett ruled this wasn't the case." The attentive reader would have understood that the mouse being referred to was IceTV not you. Your judgment was reversed by the Full Court, but in a unanimous decision the High Court fully restored your judgment. You have made many important contributions to the jurisprudence of this Court in your heartland love of patents. Your recent contributions in fundamentally important business method cases should be mentioned.
In more recent years your time in the Court has been consumed by some matters more than others. Between July 2011 and August 2014 your patience was tested when you were given the task of presiding over the highly complex and length patent dispute between Apple v Samsung. It was a case that was watched by the whole patent world. It was the largest patent trial in Australian legal history involving the longest-running hearing, passing the previous record held by Justice Sackville in the C7 litigation. And it was the first time that an Australian Court utilised a split two-Judge trial system with our colleague Justice Yates. Your skill and touch as a trial judge was epitomised in a difficult but firm interlocutory decision during the trial when a significant departure from the case management orders was made and less than fully explained. You refused leave to put on further material in an important decision. A Full Court refused leave to appeal. It was a careful and important decision that revealed your experience, touch and wisdom as a trial judge.
At the risk of being a little controversial, let me mention one of our failures. You sat on a difficult and demanding appeal involving scientific principles of second nature to you, but demanding to the remainder of the Court. After a gruelling two-day appeal and much reading, the Bench engaged in vigorous discussion. Tempers at times frayed, as I recall. I remember the discussions, especially because I was peering out from a left eye with a detached retina of which I was unaware at the time. But what swung the debate was the thorough, careful analysis of the science by you without metaphor or simplification. It was how collegiate decision-making on appeal can be done; that others disagreed with the result is not to the point. It revealed your scientific and legal demand, your clarity of expression and your advocacy.
No one should be left with the impression that your contribution to the Court's work was limited to intellectual property. Over the years you have made significant contributions to the work of the Court in taxation, competition, commercial cases and administrative law. In particular, your growing interest, fed by Apple v Samsung, in the relationship between intellectual property and competition law has been a feature of your work. You have lectured on that topic, most notably in China. You have also devoted a significant amount of time to the administration of the Court. Particularly worthy of mention is your work concerning the international judicial development work of the Federal Court having been involved with the International Programs Office for a number of years as well as acting as Chair of the Court's International Development and Cooperation Committee. In that role you have made a number of significant contributions to efforts to strength governance and the rule of law within the Pacific region in particular, including by supporting the Pacific Judicial Development Program and by facilitating and assisting visits from international delegations.
In addition to your work with the Federal Court, you have contributed to the law in a number of other important respects, including serving as an additional Judge of the ACT Supreme Court, Presidential Member of the Administrative Appeals Tribunal, President of the Copyright Tribunal and a Member of the Court of Arbitration for Sport. You have likewise taken on a number of roles outside the Court room as a Chair and Member of a number of Boards, Trusts and Committees. Your work in promoting gender equality and empowering young women should also be specifically mentioned, as should your work in teaching and promoting effective advocacy.
One of your priceless contributions to the Court has been the furthering of Court collegiality and friendship. Your laughter and good humour was always present and your generous and indefatigable offering of dinners for visiting and local judges, especially during Full Court periods, became the stuff of legend; the legend of your and David's hospitality.
Justice Bennett, as will no doubt be mentioned in more detail by others this morning, your journey to the bench has been via a path a little less travelled. The experiences you gained along the way, however, are ones which the Federal Court has most certainly been the beneficiary of. They will likewise undoubtedly be valuable assets for you in your future endeavours, including as a Member of the Court of Arbitration for Sport in this year's Rio Olympics and also coming anticipated work in organisations such as WIPO and the World Trade Organization. I have no doubt that you will continue to serve in whatever fields you choose with the same dedication that you have displayed here. On behalf of the Court and all the Judges of the Court I thank you for your collegiality and service which you have displayed during your time on the bench. We will all miss you very much. Mr Clark.
MR S. CLARK AM: May it please the Court. I, too, acknowledge the traditional custodians of the land on which we meet and pay my respect to their elders both past and present. Your Honour, it's a great honour to speak at the farewell today on behalf of the Law Council of Australia and its constituent bodies, the Law Societies and Bar Associations in each of the States and Territories and Law Firms of Australia. Today is an occasion of special significance to the Law Council given your Honour's contribution to the work of the Council over many years. Your Honour was member of the Business Law Sections Companies Committee before you were appointed to this Court in 2003 and you have continued to support of that Committee under the Section on the Bench. Your Honour has been an enthusiastic participant in seminars organised by the Law Council in conjunction with the Court. Indeed, you led the Court's contribution to the Federal Court Business Law Section workshop in late 2015.
It was a great success due in no small part to your Honour arranging the keynote speakers, including Justice Colin Birss of the High Court of Justice of England and Wales. You attended the Business Law Section Intellectual Property Committee meetings and providing valuable guidance, particularly in relation to patent law and patent litigation. We sincerely hope that your Honour will continue your relationship with the Law Council into the future. Your Honour has made a very significant contribution to the work of this Court and through it to the broader community to which the Chief Justice has already referred. In 2008 your Honour established a pilot program to manage patent cases. You had listened to the concerns in relation to the cost of enforcing patents in Australian Courts, the concern that it was disproportionately high relative to the size of the market. And you recognised that if patent cases could be made quicker and cheaper, then Australia could have a future and an important international edge in this work.
Now, an important part of that was the hot tub. I have to confess that when I describe the hot tub of experts to my US colleagues who tried similar cases before juries in rural Texas and Mississippi they look at me with a mixture of fear and amazement. However, in your Honour's Court it was a powerful tool. Your Honour revelled in questioning multiple experts at the same time and finding some consensus. When it involved complex scientific issues the bar table would simply sit back and let the real expert take over. We shouldn't have been surprised, given your academic background before coming to the Bench, something which the then Solicitor-General so eloquently described in his speech welcoming your Honour to this Court. Your Honour's command of science and technology is reflected in your decisions in a number of landmark cases on patent law, information technology, the internet, copyright, trademarks and gene sequencing, some of which the Chief Justice has already referred to.
In D'Arcy v Myriad Genetics you were part of a five-strong Appeal Bench that considered the question of whether one can patent a gene sequence. In CA v ISI Proprietary Limited you dealt with a landmark decision on copyright in computer programs. Your Honour found copyright subsisted in the programs as literary works, but there had been no infringement. That was the early days of the hot tub and you helped the experts find some consensus. Of course, some of those experts soon learned that bad grammar was not to be tolerated in your Honour's Court. As one expert insisted that the "data shows", you offered a reminder that it was "data show". Your Honour has always been a singular woman, but that was beyond the pale of an academic. The Chief Justice has already referred to the extraordinary battle of Apple v Samsung. It was an extraordinary case and innovative in terms of its judicial management.
That was, of course, only the IP work. Your Honour has also made significant contributions to tax law, corporations law and Native Title. When the Chief Justice referred to the 11 years that you spent convening the Court's International Development and Cooperation Committee I must confess that that was something which many of us had not been aware of in the past. During that period it worked in something like 52 countries and involved something like 465 projects. It supported an extraordinary number of people. It has proven again that one of this country's more successful exports has been our justice system, particularly in the Asia-Pacific. And I must confess that the Court's work in this area is something which the broader profession doesn't know about, it should know about and, indeed, it is something which it should celebrate.
Your Honour will be missed by many, not the least of which by your associates. While many have described you as an inspiring mentor, the dinners you hosted for your associates at the end of their term have become the stuff of legends. They could apparently choose their own party of four, and then got to enjoy what has been described as an extraordinary cellar of whiskey collection. And might I observe that at dinner on Saturday night, somebody who was not a parent of an associate heard about these dinners and remarked that I should mention it. You will also be missed, as the Chief Justice has said, by your fellow Judges, the Court Staff, and those who have appeared before you. Your Honour, nobody was surprised when you said there would be no slowing down when you left the Bench, and that you looked forward to new challenges. The Law Council and the members it represents wish you well as you enter the new stage of your career and of your life. While the legal and business community will especially miss you, we are sure that our loss will be the gain of others. May it please the Court.
ALLSOP CJ: Mr Hutley.
MR HUTLEY: May it please the Court. I wish to pay my respects to the Gadigal People, the traditional owners of the land on which this Court stands. And then go on to say it is both an honour and a pleasure to convey the appreciation of the Bars of Australia to your Honour, upon your Honour's retirement, for your Honour's contribution to the law of this country. On 5 May 2003 your Honour was sworn in as a Judge of this Court. It was a memorable occasion. Then and now it was standing room only. I recall standing. And I can only describe it as a doting Solicitor General, David Bennett AO QC, delivered a speech which Bret Walker, with characteristic precision, described as well researched. I asked David the other day whether he wished to add anything; after a little hesitation over the detail of your attainments at the Wenona School for Girls, he said he was content.
It remains a pretty good cheat sheet for any biographer concerned with your Honour's achievements, notably in the biological sciences, at the Bar, and contributions to what can only be described as a bewildering array of advisory committees, panels, hospital boards and institutions of higher learning. It was a doting testament to your Honour's intellectual commitment, public service and remarkable energy, described by quite a few of your fans – and I can only describe members of the Bar in that way – as partaking of fundamental forces of the universe. My particular purpose, as it is I think of all those speaking today, is to observe shortly and all too inadequately upon the contribution your Honour has made to this court in the last 13 years.
Whether sitting as a Judge at first instance or as a member of the Full Federal Court, your Honour has delivered nearly 500 decisions concerning intellectual property, including 281 judgments in patent matters, 78 concerning trademarks, and 111 on copyright. Many such judgments – and your Honour, I see, shakes her head – have been repeatedly cited since. Of course, as was observed by the Chief Justice, IceTV is a famous decision of your Honour. David Catterns described your Honour's efforts as an attempt to bring sense to the overreach of the copyright world. Your Honour's attempt was ultimately rewarded in the High Court, as we all know. Just over a week ago, your Honour was a member of the Full Federal Court in JR Consulting v Cummings, which decided important questions of copyright in relation to computer programs.
In the patent field, your Honour has written leading decisions on novelty and obviousness, particularly in Sanofi-Aventis v Apotex, and Lundbeck v Alphapharm, and on fair basis in Sigma v Wyeth. Your Honour, as has been observed by every speaker, suffered for chapter 3 in the Apple v Samsung saga, there should, in fact, now be Federal Judicial DSMs. Like every Federal Judge, the totality of your Honour's caseload is reflected in this Court's diverse jurisdiction. That is apparent from decisions across a range of fields that the Chief Justice adverted to. An interesting example is when your Honour sat at first instance as an additional judge in the ACT in G and M v Armellin, where your Honour concerned a case where a fertility clinic was sued for wrongful birth, economic loss and general damages for the cost of raising twins, after an embryologist prepared one too many embryos for implantation.
Your Honour's contribution, of course, is much broader than just your Honour's published judgments. Your influence upon practice and procedure of the Court, especially as the patent lists judge in the Sydney Registry, has been described by my colleagues at the bar as transformative. Your Honour's stated objective was always to increase the efficiency of IP litigation. This was achieved through case management conferences, known amongst the cognoscenti as a big day out. They were designed to identify at an early stage the issues really in dispute, restrict the scope and cost of discovery, and limit the amount of technical expert evidence required. The new national practice area practice note for intellectual property owes much to your Honour's work. The cumulative effect of your Honour's innovations was to raise the profile of the Federal Court, both nationally and internationally.
You have represented the Court at numerous overseas conferences; the list of engagements is too long to recount now, but I single out for mention your Honour's longstanding membership of the prestigious Fordham Intellectual Property Conference faculty. You have been the subject of a great many articles and interviews in leading journals, particularly in relation to your Honour's case management of Apple v Samsung, which aroused so much interest. Whilst affection for each woman and man at the Bar for the entirety of the Federal Court judiciary is a matter of notoriety, your Honour has achieved a level of affection on the part of practitioners, particularly in your Honour's intellectual property field, which can only be described as a collective crush on your Honour. Intellectual property and patent lawyers are at pains to point out as to the innovative practices which your Honour pursued, but your Honour's incomparable personality being a major ingredient in their success.
Your scientific training, attention to detail and great intelligence, combined with charm and tact, helped foster what some described as professional informality, helping to put at ease counsel and expert witnesses alike. One senior counsel remarked, "Her Honour had a style you simply couldn't imitate." Others simply compared your charm and unfailing politeness on the Bench with the cordiality afforded to guests at your widely acclaimed dinner parties. Yet at all times your Honour sought the truth of the matter. Indeed, Bret Walker foresaw this judicial quality when he spoke at your Honour's swearing in. He concluded his speech by saying:
It is the confident expectation of the Bar of New South Wales that you will continue to set a forthright example by insisting that no one who is junior will go unheard, and no one who is uncertain will leave the Court any less assured than they entered.
Mr Walker's remarks prove to be prescient. One junior counsel observed:
We were never in the dark as to what her Honour was thinking. Everyone was given an opportunity to address concerns. This made it enjoyable to appear before her Honour, but very demanding at the same time.
Justice Bennett, today marks the end of another chapter in a life which is replete with achievement. Your Honour's intelligence, capacity, energy and charm are to be unleashed in new directions, and the Bar wishes you every success in all your endeavours. The Bar congratulates you. As the Court pleases.
ALLSOP CJ: Mr Ulman.
MR ULMAN: May it please the Court. I too pay my respects to the traditional owners of the land on which we gather here today, the Gadigal People of the Eora Nation, and pay my respects to their Elders past and present. Your Honour, I appear today as the representative of the solicitors of New South Wales, and convey to you their best wishes. It is pleasing to see so many here today, a reflection of the highest regard in which your Honour is held, both by the legal profession and the wider community. Your Honour's personal story is testament to your ability and determination to mould a career that is as varied as it is brilliant. Your parents came from Eastern Europe. Your mother was from the historical region of Bessarabia, then part of Romania; and your father, a lawyer, hailed from Sosnowiec, which is a city in Poland.
It was he who famously counselled you against pursuing a legal career, warning that women had to be better than the best to break even. His daughters were indeed better than the best: your Honour's sister ran a successful property law practice, and your Honour is retiring an eminent judge. Dissuaded from a legal career, your Honour dove headfirst into biological science at the University of Sydney, gaining a Bachelor of Science degree and a doctorate in biochemistry. Your Honour is probably the first member of the Australian judiciary likely to have an in-depth knowledge of both the mitochondrial populations within chicken embryo liver, and phospholipids in sperm of animals and humans. And I dare say your Honour is likely to hold that record for some time.
Around the time you attained your bachelor's degree, your Honour's parents threw a party at the family home, to which they invited an eligible young barrister they had recently met, Mr David Bennett, fresh from completing his SJD at Harvard. Mr Bennett left the party enormously impressed by the personable, bubbly disposition of the hosts' eldest daughter. The rest is now history. Although still very much in the world of petri dishes and microscopes, your Honour's wedding in June 1972 saw the formation of what would become a legendary legal partnership. In 1980 your Honour came to the Bar, establishing a successful career focused on intellectual property and biotechnology patents. In 1994 your Honour was made Senior Counsel in recognition of your remarkable expertise in intellectual property law.
Your Honour was appointed a Judge of this Court fewer than 10 years later, and as we have heard, also additional Judge of the Supreme Court of the Australian Capital Territory, President of the Copyright Tribunal of Australia, a Presidential Member of the Administrative Appeals Tribunal, and an Arbitrator of the Court of Arbitration for Sport. Your Honour has sat on a number of notable cases, including the Apple v Samsung case that involved some 20 patents. This was marathon litigation that ran for some two years; and just as your Honour was painstakingly assembling a 1300 page judgment, the parties settled out of court. Oh, to be a fly on the wall when that was conveyed to your Honour.
What did arise from the case, as we've heard, was a dual panel innovation, which saw separate strands of the dispute heard separately and concurrently by your Honour and Justice Yates. This was welcomed as the way of the future. Your time at the Bench has necessitated becoming an expert on all manner of things. And we've heard about the Torpedo Swimwear case; interestingly, that case, in addition to an inventory of Ian Thorpe's various nicknames, Thorpie, Super Fish, Flipper, Big Foot, and Torpedo, your Honour had to dissect the word Thorpedoes, considering the contrasting sounds of T and H, the effect of pluralism on pronunciation, and syllabic emphasis. On a personal level, your Honour's dynamism, energy and efficiency are legendary. Your Honour is also well known for your frank and forthcoming personality. Bashful or shy are not generally words that are associated with your Honour. Your Honour has said that when faced with a slew of overlong acronyms or avant-garde buzzwords, you are the only person in the boardroom willing to pipe up: I don't actually know what that means.
Furthermore, you speak your mind in court often reciting a long string of "nos", one after the other. Your associates inform me that the explanation once appeared in a transcript on no fewer than 11 times in a row. Standing at the intersection of science and law, your Honour has driven and participated in some remarkable initiatives. It is no mere puffery to say that there are too many to mention, but I will refer to the Genetic Manipulation Advisory Committee, the Biotechnology Taskforce and the National Health and Medical Research Council. Your Honour has been a director of the Children's Hospital Foundation and a trustee of the Centennial Park and Moore Park Trust. Your Honour was also pro-chancellor of the Australian National University.
Undoubtedly, your Honour's talent for innovation has shone in everything to which you have put your hand. From the examination of mitochondria to complex rulings on patent law. On occasions such as these, there is significance between someone's contribution and the ways made by their departure. The widespread response to your Honour's retirement, as seen here today, points to the influential irreplaceable presence you have had within our institutions. Many have wondered what could be next for your Honour.
For his part, your husband is looking forward to having more time together. Given your busyness, he only hopes that the old remark "for better or for worse, for richer or for poorer but not for lunch" will not apply. I have been strictly advised that what lies ahead for your Honour is subject to Rumpole's rule. So on that note I shall say no more than to wish your Honour, on behalf of the solicitors of this State, the very best for whatever life has in store for you in the years ahead. As the court pleases.
ALLSOP CJ: Thank you. Before I ask Justice Bennett, may I apologise to the Honourable William Gummow and the Honourable Michael McHugh, who are present today. I was working from an old list. Justice Bennett.
BENNETT J: Well, I am almost, but not quite, speechless. Chief Justice, Mr Clark, Mr Hutley and Mr Ulman, I appreciate your comments and your editing skills more than I can say. I'm torn between not recognising myself and not wanting to recognise myself. First and foremost though, because it's my overwhelming feeling, I want to thank every one for being here. Each of you knows how important you are to me in my professional and personal life; each in your own way and because of your own selves. I value the warmth, friendship, support and insights that you have given me. In the case of professional colleagues, I also appreciate the comments about my judgments that you have hopefully kept to yourselves. Come to think of it, I hope that the discretion about perceived personal failings extends to my friends and, more importantly, to my family.
I fully appreciate how special it is that you have taken the time out of very busy lives to be here. I would love to copy what I understand David did on his 21st: make a speech consisting of 30 seconds about each of you, but you would all be bored witless beyond your individual 30 seconds of fame. Nevertheless, there are some whom I would like to acknowledge who have done me the honour of being here.
The Honourable John Howard does not, as they say, require any further introduction. It is not for me to speak of his contribution to Australia. However, the measure of the man, to me, can be summed up by the fact that whenever he wanted to speak to David, when David was Solicitor-General, he made his own calls and always took a few minutes to chat to whoever answered the phone. Phillip Ruddock, former Attorney-General, amongst other positions, from my perspective, I can say that you and David made a great team.
Otherwise, the hard thing about being a judge is that judges never get feedback, which I hate, but then again maybe that's a good thing. Perhaps there should be movies made with all disguised judicial figures (I have always wondered who I would get to play me), but if that were the case, Academy Award nominees eat your hearts out. As to the possible recipients of those awards who are we present: Chief Justice French and former Chief Justices Brennan and Gleeson glittered as stars on the High Court and they have, together with the other justices, such as Justices Bell, Gageler, McHugh and Gummow, who are here, set the scenes of the plays in which we all act. They each deserve an Academy Award for screenplay and editing. Best production and writing awards also go to Chief Justices Allsop, Bathurst and Murrell.
When it comes to best performance in a courtroom drama, an award must go to Tom Hughes. The award for a judge in many roles goes jointly to the now acting Judges of Appeal Sackville and Emmett.
I won't keep going or it will be as interminable as the Academy Awards, but I want to say that I especially appreciate that Val French and Robyn Gleeson are here and I send my very good wishes to Pat Brennan who was unable to come.
John Coates, vice president of the International Olympic Committee and president of the Court of Arbitration for Sport certainly has other commitments and yet has found time to be here. John, I'm going to have lots more time for CAS Arbitrations and I look forward to seeing you and Orieta in Rio.
Dennis Mahoney, you were always a mentor to me and it was you who told me not to worry about writing judgments because nobody reads them. You also became a wonderful friend to my parents when they were alive.
That leads me to my family: they are first and foremost in my life today and always. My feelings primarily centre on how lucky I am. I'm lucky that my parents remained steadfast in their choice of Australia as the country in which make their home, after the horrors of watching their parents and family destroyed by gassing, disease and starvation during the Holocaust. They became what were then called New Australians. They could not have been prouder of that title or of this country. I know that they would be proud of me today although, true to many of that generation, my father never would have told me. I was lucky to have parents who never let me realise that girls were not meant to achieve more than or, if not that, at least equal to boys.
The biggest luck of my life was to meet David. He is another who, in this audience, needs no introduction. He is the epitome of a barrister, with a deep love and intelligent understanding of the law and an ability as an advocate that I hold in awe and to which I have always aspired. However, that is not why I am lucky. I am lucky because he is the gentlest and most supportive and loving of husbands and friends, without the ego that goes with his outstanding abilities. Most of you would nod automatically when I say that he is non-combative at home - a necessary characteristic. There is no doubt, whatever, that I would not be where I am, professionally or personally, without him. He also gave me half of the genomic input of our three amazing children. Those of you who don't understand that should do some IP.
Lyria, Tala and Paul, you know how much I appreciate what you've become as adult people, which is even more important than the fact that you are each intelligent and successful and independent. You are each professionally very successful, without sacrificing your individuality or your principles. You have only ever been full of love and support, especially when I needed it. You never pressed the buttons that would have made me stop working. You never made me feel guilty. Indeed, you remonstrated with me when I expressed guilt. Sometimes I have wondered who is the mother and who is the child.
You also brought the wonderful Daniel, Johnny and Vanessa into the family. You've also given us the joy of Joshua, Tiana and little David, who was trying to make his presence felt earlier this morning. Thank you for being you.
Este, our best and only niece, is a part of our family and also represents my sister, Jennifer, who is overseas.
But I have another family, sort of. The joy of being a judge is that you have the privilege of working with some outstandingly brilliant young lawyers as associates. The relationship is very special over the course of the year or year plus and it remains. It's our little club, now of a closed membership and all my associates present in Australia are here today. So too are the only members of that club who are not lawyers, my executive assistant for over 12 years, Pia Sergi, and the most recent addition as EA, Teresa Willetts. You both know how much my life is dependent on you. I have not ever said that I have done such as I have done by myself.
Other lucky moments in my life have been meeting Karen O'Sullivan and Jeanine Ellis, both honorary Bennetts. Jeanine has been our EA, then David's EA and now, again, our EA for nearly 30 years. Karen started as a nanny, also nearly 30 years ago, and now we both recognise that she's not only the second mother of my children, she's my wife. They are two totally lovely and competent women, without whom I simply could not function. All of this enabled me to become a judge nearly 13 years ago.
My 23 years as a barrister did not really prepare me for life on the other side of the bench. So many things were unexpected. For my part, as I would not dream of speaking for any other judge – this is not an appeal – my realisations include: first dot point – and many of you will recognise my style
- it's an adversary system, so you can't always blame the judge for missing something. Next
- written submissions do matter. Next
- no matter how persuasive one side's case is, there's always another version. Cases prepared by competent counsel do not usually run, with associated costs, unless each side thinks that it has a winning case on fact and law.
- This means that if I found one side's argument compelling, I did not make up my mind on that basis. I looked forward even more to hearing the other side's response.
- I've never been bored, not for more than a minute, even during – especially during – the 200 hundred days plus of the Apple v Samsung case.
- Sometimes my impression on coming out of court is that I'm going to find for one party, but the judgment will not write when I find the facts and then apply the principles to those facts. It just writes the other way to the other party.
- Judges usually, in my view properly, do not decide cases based on personal philosophies or populist views, or liking for a party. Indeed, I have often found myself repeating the judicial oath whenever I'm torn.
- One of the greatest compliments paid to this court was when a senior foreign in-house patent counsel told me that he litigated in Australia, despite our small size commercially, because our judges decided patent cases on merit and objectively and gave good reasons for the decisions.
- I have to say, intellectual property is still exciting.
But one of my failings is interrupting people when I've worked out what they're saying and going to say to complete their submissions. Some of you may have noticed that. This is usually when I have a question. I am not sure that people will be so accommodating when I do that in the future. The other thing that I have learnt is that people really do smile at jokes that judges make that are really not funny. Also, not everyone understands references to science fiction, but I will add that good advocacy is not being condescending when a judge doesn't understand an acronym or recognise a case name.
However, the best thing about being a judge of the Federal Court is the people. Registry staff, court officers and registrars are really wonderful people who make the court work smoothly and are especially patient whenever there is a turnover of associates. Warwick Soden and Stephen Williams are especially amazing.
It is a practice to call fellow judges brothers and sisters and that is a really good description. The collegiality of this court is beyond fabulous. I feel so much care, support and affection for and from my by brother and sister judges, past and present, in Sydney and around the country. The hardest part of leaving the court is that they will no longer be my colleagues, but I know that they will remain my friends. The measure of that friendship is their presence here today and the warm messages that I have received from judges of other registries who could not be here. I also want to welcome my cousins from the Supreme Court and from the other courts. The measure of the continuing nature of the relationship is the fact that so many former judges of the court are here, including former Judges Spender, Moore, Finkelstein, Finn and Heerey, who have come from interstate.
I also want to acknowledge another very recently retired member of the court, with whom I had wanted to share this farewell. Dick Edmonds' time on the court has been a tribute to his expertise, his charm, his professionalism and his dedication through thick and thin. He is a wonderful man and a first rate judge. Each departure from the court is hard, but as Jagot J said to me – and Perram J would if he had thought of it – the court is like blancmange; a judge leaves and there's a great big hole and then the whole thing sort of shakes out and continues on.
It has been a privilege to have served on the court. As Keane CJ, as he then was, said:
The Federal Court's work is important for the nation.
I pass on the mantle of SSPJ that I received from Peter Jacobson to Rares J. As he will doubtless remind me, I will no longer be a Chapter III Judge and no longer exercise the judicial power of the Commonwealth. I have loved my time on the court. It has been a privilege to work with, and to know, so many outstanding judges and to be on the receiving end of the arguments, put generally very courteously, by so many brilliant lawyers. The greatest compliment that I think that I received is that someone said that I could be described as a truth-seeker. I have taken that to mean that I have endeavoured to comprehend fully the cases being presented. It has been a continuous professional and analytical challenge. It has been stimulating and fun and personally rewarding. I am leaving at a time of my own choosing, which is to make it clear that I am not turning 70 or reaching statutory senility for a long, long time.
During my time on the court, I have maintained an active participation in various non-legal bodies and organisations. I have had the opportunity to attend international meetings and to engage with judges and lawyers from all over the region and the world and I have gained great insights from those encounters, conferences and education programs. I look forward to learning even more acronyms and to making a contribution, if I can, to the law and to the broader community.
Well, what can I say? Thank you all for being part of my farewell and I want you to be a continuing part of my life.
ALLSOP CJ: The court will now adjourn.