Ceremonial Sitting of the Full Court
To farewell the Honourable Justice Gray
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE HIGGINS AO
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE EDMONDS
THE HONOURABLE JUSTICE JESSUP
THE HONOURABLE JUSTICE TRACEY RFD
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE BARKER
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE DODDS-STREETON
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE ROSS AO
THE HONOURABLE JUSTICE KERR, CHEV LH
4.34 PM, FRIDAY, 17 MAY 2013
ALLSOP CJ: Justice Gray, at your welcome to this Court in 1984, it was said that you had the singular distinction of being the youngest person appointed to the Federal Court since its inception. You now depart, bearing a no less singular distinction; you have served this Court for longer than any other judge in its history, almost three decades. You have worked with every Chief Justice of this Court and the electronic database of the Court shows that you have delivered well over 1700 judgments. Your career and education before your appointment were distinguished. First class honours in law at the University of Melbourne and associateship with Sir Richard Eggleston at the Commonwealth Industrial Court, and then a BCL at Magdalen College in Oxford.
You commenced your career at the Bar at Gray’s Inn, in London, before being called to the Victorian Bar in 1972, where you read with John Winneke QC. You also lectured in procedure and tutored in various subjects at the university. You became a specialist in the field of industrial law and your advocacy at the Bar was characterised by the vigour and force that that field of law rightly inspires in this country. Such was your mastery of industrial law and advocacy that in the year before your appointment, you singlehandedly pursued a unanimous High Court to return to the early 20th century understanding of the phrase “industrial dispute” in 51.35 in the Constitution.
On the Bench, you have never lost sight of the individuals whose lives are affected by the exercise of governmental or private power. Your opinions in a number of administrative law cases, particularly in the migration context, have been a great influence. In Minister v VEAL, you were of the view that the Refugee Review Tribunal was required to inform an applicant for a protection visa of allegations made anonymously against him, even though the tribunal affirmed that it gave those allegations no weight. You thought the tribunal’s failure to inform the applicant was unfair. That led you to dissent in the Full Court of this Court. It was a view that ultimately found favour with the unanimous High Court.
You have not been afraid to make unpopular political decisions. In Clark v Vanstone you quashed the decision by the Minister for Indigenous Affairs to suspend Mr Clark, then chair of the Aboriginal and Torres Strait Islander Commission. The Full Court later affirmed your decision. In Howard v Gallagher, you put your finger on some of the considerations that were soon to play a part in the development of the constitutionally implied freedom of political communication, and that was in 1988. The courts are still grappling with the reconciliation of the principles in those cases. You have attracted some media coverage in the field of competition law, after your decision in Leahy Petroleum, the Weekend Australian described you as the courtroom nemesis of the then-ACCC chief, Graeme Samuel.
I should say that the only occasion on which you and I ever had a personal disagreement concerned that area of the law. I participated in a judgment that should have been expressed differently. You expressed yourself to me after that, clearly, calmly and in a civil way; the mark of your behaviour with your colleagues. I recognised the error of expression in which I participated. I apologised then and I do so again today. The work and responsibilities of the Court, your responsibilities and the Court have not been limited to judgment writing. You have dedicated yourself tirelessly and devotedly to assisting in the work of the Court in its international assistance to countries of the region.
You were instrumental in the development of the relationship with Indonesia and the courts there and you have been tireless in the Court’s efforts in the Pacific and our region in assisting the development of other judicial systems and thereby developing and reinforcing the rule of law in the region. The Court has a proud record in this area, not the least because of the efforts that you have made. One area of the life of the Court unlikely to come to light, other than on occasions such as this, is the work you have undertaken over 20 years as the judge participating in and overseeing the enterprise bargaining arrangements with employees of the Court.
As a self-administered Court, the undertaking of these negotiations and their resolution is of critical importance to the effective working of the institution. The balancing of appropriate responsibility for public moneys entrusted to the Court with appropriate and fair standards of remuneration for employees is intrinsically difficult. However, a public institution so dependent upon the goodwill and hard work of its employees as this Court is could not efficiently operate without effective labour relations. All enterprise bargaining arrangements have for 20 years received over 90 per cent of the approval of staff. Your skill in this area has, in a quiet but important way, laid the foundations for both a happy and an efficient course.
At a time of growing emphasis on electronic means of communication, it should be noted that a decade ago, you were the first judge to come to meetings only with your computer. You have taken the lead in that respect and you have also worked tirelessly on other committees and other work of the Court in its administration, too numerous in example to mention individually. You have an interest in languages and linguistics, you speak Bahasa Indonesian, you are a member of the executive committee of the International Association of Forensic Linguists and your interest in forensic linguistics is connected with your acute awareness of the difficulties and complexities of judicial fact-finding.
You have also written on the interaction between indigenous and non-indigenous modes of proof in the context of native title, as well as widely on procedure, native title generally, employment law and judicial technique. Justice Gray, the Court today is losing a part of itself. The name of the Honourable Justice Peter Gray has been present in the Federal Court reports from volume 1. All the members of the Court wish you and Ruth the very best for the next volume of your life. Ms Glanville.
MS GLANVILLE: May it please the Court. First, may I acknowledge the Wurundjeri people of the Kulan Nation, the traditional owners of the land on which we meet, and pay my respects to their elders both past and present. Distinguished guests, current and former justices of the High Court of Australia and judges of the Federal Court, Family Court of Australia and the Federal Circuit Court of Australia. Acting Chief Justice Chris Maxwell, Supreme Court of Victoria, Chief Judge Michael Rozenes and judges of the County Court of Victoria and Chief Magistrate Peter Lauritsen, Deputy Chief Magistrate Jelena Popovic of the Magistrates Court of Victoria. It is indeed a pleasure for me to be here today to join the celebration of the career of the Honourable Justice Peter Gray.
The Attorney-General, the Honourable Mark Dreyfus QC MP regrets that his ministerial commitments have prevented him from attending this special ceremonial sitting. However, he has asked me to convey to your Honour the Australian Government’s appreciation of your many years of dedicated service to the Federal Court of Australia. May I also acknowledge the presence today of your Honour’s wife, Ruth, who proudly shares this wonderful occasion with you. Your daughters, Alexandra and Belinda and Belinda’s family, who all reside overseas, could not be present today but I know you will be very much in their thoughts. The records of your Honour’s very warm welcome to the Court as referred to in 1984 are impressive by any standard.
The youngest person, at just 38 years, to be appointed to the Court since its inception in 1977, a distinguished formal education and career which included matters involving considerable country circuit work and a reputation as a leading specialist in the industrial jurisdiction. Your Honour’s genuine care for the welfare of others manifested itself in a career at the Victorian Bar that gravitated to work in industrial law, particularly representing the interests of employees. This generosity and support for others would later find expression in your desire as a judge of this Court to ensure that people have access to justice, aptly described by others as a manifestation of your Honour’s conviction to live out a commitment to social justice in Australia.
Your Honour speaks fondly of the influence on your career of towering labour law figure John Ryan and Federal Court judges Sir Reginald Smithers, Raymond Northrop and John Keely. Your Honour would be the first to gratefully acknowledge how well they shaped an environment that would produce in you such a successful barrister and leading jurist. In the spirit of their legacy, your Honour has also mentored a large number of leading practitioners around the country, and inspired many others to highly successful careers.
In 1991, with your Honour’s consent, your assignment to the then industrial division of the Court which had been made in 1984 was revoked, and your assignment varied to enable your Honour to take part in both the general and industrial divisions, better known today as the general and fair work divisions of the Court. In 1994, your Honour was appointed as a judge of the newly established Industrial Relations Court of Australia, and despite the transfer of that Court’s jurisdiction to other courts, in particular, the Federal Court, the Industrial Relations Court continues to exist by virtue of the Industrial Relations Act of 1996 until the last of its judges, your Honour, Justice Shane Marshall and Justice Anthony North resign or retire from office.
I understand that during the term of your Honour’s appointment to the Industrial Relations Court, you earned a reputation as a formidable judge. Your Honour has written extensively in the area of labour law both as a judge and in your other extrajudicial capacities. One of your Honour’s legacies will undoubtedly be the outstanding contribution you have made in this area, and the knowledge and the experience that you have willingly so much shared with others. Your Honour has a deep and abiding interest in social justice generally, but with a particular focus on Aboriginal people and on justice for Aboriginal people. Your Honour served several times as the Aboriginal Land Commissioner under the Aboriginal Land Rights Act (Northern Territory) 1976. This involved travelling to remote locations to hear claimants evidence and to view sites of significance.
I understand that the role of commissioner was not without its hazards. For instance, your Howlin’ Wolf tape went missing from time to time; your associate broke the suspension on your vehicle, and you were even left out in the bush. I believe that a past associate, who will remain nameless, but may well be here today, managed to arrive at Birdsville without your Honour after crossing the Simpson Desert. How this came to be is a comedy of errors that may never be fully understood. When you eventually arrived at Birdsville, you discovered your associate at the local hotel bugling a bottle of beer, none the wiser for your misadventure.
When determining numerous claims under the Lands Right Act, I am told that your Honour brought to your work a high level of meticulous care, sensitivity, and intellectual power that mirrors and still mirrors your very deep concern for the plight of Aboriginal people in Australia. The Court has indeed been fortunate to have amongst its ranks a judge who not only loves the bush, but who has brought a high level of commitment to the resolution of land claims that can last for a considerable time, often involving hundreds of claimants and very large tracks of land. It is therefore hardly surprising that your Honour values highly the notion of utopia, in which both bush and courtroom can work together effectively.
In so doing, your Honour has been tireless in seeking to ensure that the transplant of British justice system, of which you are a part, understands and adapts appropriately to the cultural differences which have so often worked to the detriment of Aboriginal people. Illustrations of this point are your Honour’s ready acceptance to take evidence on country in some of the remotest parts of the land claim areas, allow gender segregated evidence to be given, and allow groups of witnesses to give evidence together. I understand that where this is involved, challenging conventional thinking, your Honour has indeed risen to the occasion on every occasion. The legacy that you will leave to the Court is a broad sense of social justice achieved by your Honour’s hard work on developing Court processes that make courts more accessible.
Since 1986, your Honour has served as a Presidential Member of the AAT, the Administrative Appeals Tribunal, and for many years, you have been the senior puisne judge of the Federal Court. Apart from ordering appeals, your Honour has been very active and influential in the courts inner workings, and you have a strong personal interest in judicial education, both domestically and internationally, as has been referred to, including your involvement with Law Asia. And I understand also that your Honour has even acquired proficiency or some proficiency in the Indonesian language to assist with that work. On a different note, I believe your Honour is the proud owner of a collection of guitars, and that you harbour a post-retirement aspiration to be a rock star.
Such is your passion for your music that your Honour’s family gifted you the cost of a recording session. I understand that during this session, you produced a CD which you have generously, from your perspective, distributed to close friends and colleagues free of charge, while I understand that initial supply of the CD up until now has outstripped demand, I encourage your Honour not to be discouraged. I entreat you to ignore downward marketing trends and persevere with your retirement plans to end on a high note. Many an overnight sensation has indeed been borne out of clever use of social media. Your Honour’s retirement will also allow you more time to enjoy your next important role, that of a doting grandfather.
I trust you will also get more opportunities to pursue your love of bushwalking and cross country skiing, and maybe your Honour will get to enjoy another Geelong premiership, in their recent run of winning every odd year. Although, as a Saints supporter, and in the context of the 2009 Grand Final, I sincerely hope that that will not be the case. Your Honour’s generosity and support of others during your time on the Bench of the Federal Court of Australia will be an enduring legacy. The Court is so much richer for your service. On behalf of the Government and the Australian people, I thank your Honour for your invaluable service to this Court and extend to you my sincere best wishes for your future. May it please the Court.
ALLSOP CJ: Mr Kite.
MR P. KITE SC: May it please the Court. It’s a pleasure and a privilege to represent the Law Council of Australia today, as we celebrate the career of Justice Peter Gray. I too acknowledge the traditional custodians of the land on which we meet, and pay my respects to their elders both past and present. As the peak body representing the legal profession in Australia, the Law Council of Australia is honoured to be involved in today’s tribute. The president of the law council, Mr Joseph Catanzariti, regrets that he is unable to be here, but wishes your Honour a long and fulfilling retirement. The president hopes that you will contribute actively to the ongoing development of employment and industrial law through your mentoring and editorial roles, while continuing to enjoy the pleasures of music, recreational physical activity and family life.
My remarks on behalf of the Law Council focus on your contribution to the development of industrial and employment law, and your support for younger colleagues and students. Your destiny for the Bench was evident early in your decisions and achievements. Your Honour long ago renounced the indulgences of alcohol and a non-vegetarian diet. You had a keen interest in debating and public speaking with Rostrum, and in the sports of football – regrettably, from my point of view, the wrong code - water polo and canoeing. You were a gifted student, achieving a first class honour’s degree in law from Melbourne University, and later a Bachelor of Civil Law from Oxford. You lectured in civil procedure and tutored in a range of subjects and served as an associate to the Honourable Justice – later Sir Richard Eggleston – on the Commonwealth Industrial Court.
In 1984, the Attorney General Gareth Evans, as the Chief Justice has already noted, commented that you had the singular distinction of being the youngest person appointed to the Federal Court since its inception in 1977. Your reputation was that of a highly skilled advocate with the specialist knowledge of and passion for industrial and employment law. A former Chief Justice of the Federal Court, the Honourable Michael Black, who I am delighted to see was able to join you on the Bench today, has commented that your appointment to the Bench at a very young age was undoubtedly at the expense of an early appointment as Queen’s counsel, and unquestionably a leading role at the Industrial Law Bar nationally.
The Honourable Michael Kirby, AC, CMG, recalls a dinner you shared in Sydney shortly after your appointment to the Federal Court when you dined near the colourful New South Wales minister, Rex Jackson, who was later detained in the custody of Her Majesty. I’m sure that was just to remind your Honour of the particular dinner. He discovered that you were a strict vegetarian. Mr Kirby notes that he has since largely followed you into the delights of vegetarianism, and is living proof that there is life after the Bench. He wishes you a new beginning. Your friend and Dean of Sydney Law School, Professor Joellen Riley, describes you as a principled man, a realist with an incisive mind who looks beyond technicalities to broader matters of justice, and as a thoughtful and good technical judge. You are also said to be a wonderfully amusing after‑dinner speaker. There’s no doubt we will soon see.
Your significant contribution to academia through your editorial contribution to the Australia Journal of Labour Law, the premier Australian journal in its field is well known. Emeritus Professor, Ron McCallum AO describes you as an innovative judge despite some of your judgments being overturned on appeal. It is difficult to highlight particular judgments as there have been so many. The Chief Justice has commented on some over your long and distinguished judicial career.
In 1966 – in 1996, I apologise, as member of the Full Court of the Industrial Relations Court in Qantas Airways v Christie, your Honour dealt with provisions in the Industrial Relations Act referring to the inherent requirements of a position and age-related retirement. Although the High Court overturned your decision, it nonetheless informed later policy development. Some of your judgments have been influential in the recognition of implied terms in contracts for the benefit of employees and in finding employments contracts rather than independent contractor arrangements to be in place. In Professor McCallum’s view, your humanity and deep concern for working men and women has been a hallmark of your judgments.
Perhaps you’re best known amongst students and practitioners of law for elevating into the lexicon of considerations about employment relationships equipped in Reporter: Re: Transport Workers’ Union of Australia to the following effect. The parties cannot create something which has every feature of a rooster but call it a duck and insist that everybody else recognise it as a duck. In that regard, I’m also asked to pass on from the Honourable Adam Searle, MLC, among other portfolio responsibilities, Shadow Minister for Industrial Relations in New South Wales, that cases that your Honour decided in the 1980s, particularly in relation to union rules matters, continue to inform and be relied upon in guiding the resolution of disputes in those areas today.
On the other hand, in 2012, the High Court was less persuaded by your reasoning as a member of the Full Court and of the Federal Court in the Board of Bendigo Regional Institute of Technical and Further Education v Barclay. Your Honour expressed the view that it could be relevant but not decisive to consider the subjective, possibly subconscious, intention of the person alleged to have taken adverse action against an employee, even where the person genuinely believes they were motivated by the reason they asserted had motivated them. The High Court promptly disowned probing into the metaphysical and insisted that possibly, subconscious motivations were not an element in the adverse action claim against an employer.
Your Honour is also renowned for mentoring younger colleagues and musicians since the 1990s, generally, and since 2005, as an adjunct professor at the Deakin Law School. You have been generous with your time: giving lectures and research seminars and different aspects of native title procedures; appearing as a guest lecturer in the labour law course; attending important social events organised by Deakin University and the law school; and coaching and mentoring students and mooting competitions. The Camberwell Music Society has likewise benefited from your presidency and active committee membership. On behalf of the Law Council of Australia and members of the Australian legal profession, we wish you a long and fruitful next phase of your life. May it please the Court.
ALLSOP CJ: Ms McLeod.
MS F. McLEOD SC: May it please the Court. I appear on behalf of the Australia Bar Association constituted by all the independent bars of Australia, and in particular, the Victorian Bar, to congratulate you and celebrate your career. I first acknowledge the Wurundjeri people of the Kulin Nation on whose land we are meeting and pay my respects to their elders, past and present. With a wonderful symmetry, your Honour’s commission as a judge of this Court in its Industrial Division was effective on this very day, 17 May, 29 years ago. Your Honour delivered your last two judgments in the matters of National Tertiary Education Union v RMIT, fittingly, an Industrial Relations case, and Fard v Minister for Immigration and Citizenship yesterday.
The last of these was, as your Honour described it, the strangest case you have encountered in almost 29 years as a judge. The applicant, Ms Fard, sought the destruction or rectification of documents held by the Minister, falsely claiming, she said, that she was the mother of a man claiming to be His Imperial Majesty, Soltan Qeumars Shah Qajar, the grandson of a Shah who was deposed in 1925 and the true heir to the throne of Iran. Your Honour’s assessment of the evidence will, no doubt, find its way into at least one more speech at some time in the future, and included an analysis of the exhibits; one document purportedly supporting the claim of royal blood and issued under apparent seal of judicial authority, warned the holder to observe travel courtesies in danger of absolute death and annihilation by the hypocrites, and claiming to be one of the most important official documents in the world. Suffice it to say, it was a spectacular way to finish.
The profession; the benches of the courts in Victoria, both Commonwealth and State; the Bar in the institute; and of course, your friends and your many former associates are all here today to pay tribute to your life and service in the law. At midnight tonight, the resignation of your commission will take effect. Your Honour signed the Bar Roll on 7 September 1972 and, as we have heard, began reading with John Winneke the now retired first President of the Court of Appeal. It was not easy to break into practice. You and Ruth married in England and your Honour returned from two years there as a scholarship student at Oxford and in London to find that Chambers accommodation here was extremely tight. You also found that the established clerks were not taking any new barristers. Of the approximately 400 counsel in active practice in Victoria, about 170 were very junior under six year standing.
The Bar established the new barristers committee in an effort to work with this raft of juniors and do something to support them and your Honour was a member of that committee for it’s first two or three years and thus started a year of contribution to our Bar. In those difficult start-up years your Honour took a variety of work – whatever you could get. You did a lot of circuit work at Bendigo, including serious family law work and you taught at the University of Melbourne as an independent lecturer and civil proceeding; sharing and splitting that gig with Bruce McTaggart. You also tutored in pretty well everything legal at Queen’s College and Trinity College. On circuit in the Supreme Court at Bendigo in March 1976, your Honour represented the husband in what may have been the last divorce on the ground of adultery in which the allegation of adultery was hotly contested.
The no fault Family Law Act 1975, had come into force but there had not been the 12 months separated required under the new Act and so you proceeded under that jolly old Act, the Matrimonial Causes Act 1959. Seeking to economise your client, the petitioner had attempted the customary early morning raid himself and botched it royally. Nevertheless, not only did your Honour win the divorce but, representing the petitioning husband, won sole custody of the young children. Your Honour was destined for industrial relations work, however. Richard Eggleston had been the ACTU advocate before his appointment and your Honour had served as associate to Mr Justice, later Sir Richard Eggleston in the Commonwealth Industrial Court for two years.
At Oxford your Honour had come under the influence of two towering labour law academics; Professors Otto Kahn-Freund and Mark Friedland. From 1977 your Honour specialised in industrial law and become the leading junior in that field. In 1981 your Honour had been led by Ted Laurie QC at trial in the substantial and complex Plumbers & Gasfitters Employees Union of Australia case of Cook v Crawford. On appeal to the Full Court the following year Laurie fell ill and was not able to appear. The appellants had the redoubtable M.J.R. Clark QC who was then appointed to the New South Wales Supreme Court the next year and your Honour appeared alone without a leader and resisted the appeal. Your Honour had four readers, including Shane Marshall, Justice Marshall on the Bench today, John Goldberg, Paul Cosgrave now SC who has been appointed to the County Court, and Dave Redstandle. Justice Bromberg, also on the Bench today, served as your Honour’s associate.
Your Honour played in the Bar Second XI cricket team. Those who failed to win the E.W. Gillard seal of approval for a place for the firsts. You were nicknamed, facetiously, the All Stars. Your Honour played cricket also for your church. You were an earnest cricketer and loved the game. Batsman came to fear you somewhat and your somewhat erratic donkey-drop leg breaks. Now, in one much a skilful batched dispatched your Honour’s first two balls off the field for six into passing train carriages.
Ms Glanville spoke of your Honour’s outstanding work in the two three year terms your Honour served on the Aboriginal Land – as the Aboriginal Land Commissioner. Your Honour also served as deputy president of the National Native Title Tribunal for five years. Your Honour is also a member of the Victorian Judicial Officers Aboriginal Cultural Awareness Committee and of the AIJA, National Indigenous Cultural Awareness Committee, now, the Indigenous Justice Committee. There were five judicial conferences on Aboriginal cultural awareness between 1997 and 2009, with one more later this year and your Honour recently visited at Lake Condah in South West Australia and met with the Gunditjmara People and on this occasion you made music with your harmonica and guitar with Johnny Lovett, an indigenous musician. Your Honour’s profound depth of knowledge and sincere commitment to the Aboriginal people make your contributions to these endeavours invaluable.
I understand from the Honourable Justice Stephen Kaye that he has prevailed upon your Honour to remain on the Victorian Committee in your retirement; for which we are all most grateful. Your Honour has also been a tower of strength in the Bar Indigenous Clerks Program. Under that program three indigenous lawyers or law students spend a week each with a Bar, with the Supreme Court and with this Court, your Honour, and since your appointment to the Court, Justice Gordon supervised the clerks in their week at this course. Your Honour, I happily – your harmonica, I happily observe, remains perpetually in your coat top pocket ever ready for a spontaneous performance, although, regrettably, I was unable to entice you to begin your retirement plans early and play last night as a rock star as you welcome the new Bar readers at our dinner to celebrate their signing of the role of counsel.
Another important role in which your Honour has played a vital role, and also touched on by the Chief Justice, is the collaboration between this Court and the Supreme Court of Indonesia. That has been in operation since 1999. Indeed, your Honour’s private visits to Indonesia and personal contact with judges there have played a significant role in the initiation of the courts collaboration. As we’ve heard, your Honour has gone several times to Indonesia to conduct workshops there on behalf of the Court and when Indonesian judges have come to Melbourne your Honour has met them at the airport and you and Ruth have had the Indonesian judges to your home. There is no doubt that this collaboration between the courts has made a substantial contribution to the reform and improvement of the Supreme Court of Indonesia and has been recognised internationally.
One of your Honour’s landmark decisions also mentioned by the Chief Justice is your 2004 judgment in Clark v the Honourable Amanda Vanstone. In that case your Honour set aside the suspension by the Minister on the ground of Misbehaviour of Mr Geoff Clark as a Commissioner and chairman of ATSIC. Your Honour analysed the conception of misbehaviour in that sort of statutory context. It can be fairly said that this has made your Honour a world authority in misbehaviour. Two separate panels of their Lordships of the Judicial Committee of the Privy Counsel have now adopted your Honour’s analysis and formulation of a test for determining whether conduct is to be characterised as misbehaviour for the purposes of removal from office.
In a 2007 judgment on an appeal from the Court of Appeal of Grenada their Lordships found your Honour’s illuminating analysis to be of great assistance and they quoted at length paragraph 85 of Justice Gray’s judgment; saying it is worth citing in full. Their Honours, including Lord Bingham of Cornhill adopted and applied your Honour’s formulation of the test. A different panel of the Privy Counsel was similarly complementary in a 2009 judgment. As counsel, your Honour has been what might be terms an old-style advocate; determined, forceful and utterly fearless; a belief in the virtues of direct and robust oral advocacy and in the greater efficacy of oral advocacy to get to the heart of the case. It is perhaps, therefore, not surprising that this underlaid what you expected of counsel who appeared before you in your Court. It’s said that one of you Honour’s associate who knew only your Honour’s style asked innocently of another judge’s associate for whom your Honour’s associate had substituted, “Is your judge always this quiet?”
Your Honour may remember the often salacious content in the column, rumour to be quashed in the Melbourne Law School weekly broadsheet of yesterday-year De Minimus. It was said that your Honour’s heightened vigilance against anything that might undermine chapter 3 independence of the Court extended to outrage at the shift from cloth to paper towels in the judges’ washrooms. No doubt, it was the beginning of the end.
29 years your Honour has been an outstanding judge of this Court. On behalf of the Australian Bar Association and all of the independent Bars of Australia and in particular of the Victorian Bar I congratulate your Honour in your remarkable and outstanding service in law and in particular on your 29 year service as judge of this Court and with you and your wife Ruth and all your family all the best in your retirement. May it please the Court.
ALLSOP CJ: Mr Holcroft.
MR M. HOLCROFT: May it please the Court. I appear on behalf of the Law Institute of Victoria and the solicitors of this State. I also wish to acknowledge that the Wurundjeri people of the Kulin Nations on whose lands we are meeting today and I pay my respects to their elders, past and present. The president of the Law Institute of Victoria, Mr Reynah Tang, is not able to be here today and he has asked me to pass on his personal congratulations to your Honour on this occasion of your retirement and his best wishes to you and your family for the future.
Your Honour was educated at Carey Baptist Grammar School. You engaged in amateur theatricals and are known to have played a pantomime dame. Your Honour matriculated – they’re a little bit slow today, your Honour. Your Honour matriculated to the University of Melbourne from which you graduated Bachelor of Laws with First Class Honours.
Following completion of your law course your Honour became an associate to the Honourable Mr Justice Eggleston. Your Honour was then a judge of the Commonwealth Industrial Court, President of the Trades Practices Tribunal and Chairman of the Company Law Advisory Committee. Your Honour served with Justice Eggleston for two years. You commenced articles with Frank Dethridge at Mallesons, however, after only around four months into your articles you were awarded the Aitchinson-Myer Travelling Scholarship and offered the opportunity to go to Oxford for graduate work. Unsurprisingly you went.
Your Honour was in England for two years. You graduated Bachelor of Civil Law from Oxford and whilst there you and Ruth were married and your Honour was then called to the Bar of Gray’s Inn. In September 1972, not long after you returned to Melbourne your Honour was admitted to practice in Victoria and went straight to the Bar. At your Honour’s welcome 29 years ago in the old High Court building in Little Bourke Street, your Honour acknowledge two principal mentors on the barristers’ side of our profession: Sir Richard Eggleston, with whom you had worked for two years as his associate, straight out of law school; and John Winneke, with whom you served tutelage at the Bar, and from whom you had also learned more through acting as his junior in a number of matters.
Your Honour also singled out for special mention John Ryan of Ryan Carlisle Needham Thomas. Your Honour said how much you had learnt working with John Ryan as your instructing solicitor in the thorough preparation of cases, and I quote:
Mr Ryan’s method of preparation of cases is unparalleled in my experience. It generally consists of long conferences, involving solicitor and client, in which the matter is so thoroughly thrashed out that a barrister goes into Court totally confident that nothing can happen for which he is not prepared. That has taught me a great deal about practice at the Bar and the conduct of cases. Mr Ryan is, in my view, the best industrial lawyer in Australia and I thank him for passing on his experience to me.
John Ryan is gone, but it’s a pleasure to see Orm Thomas, his law firm partner, here today. Orm instructed your Honour in major industrial law matters, such as, for example, the Royal, as it then was, Australian Nursing Federation v New South Wales Industrial Relations Commission, which ended up in the High Court. Orm Thomas was your instructor in a matter for the Professional Divers Association that was running in Sale. Your Honour said at your welcome that having been appointed to the Court, you would miss the direct and close contact with clients:
One of the best things about the practice at the Bar is that a barrister meets so many people from so many different occupations and places. I have found my contact with clients one of the finest aspects of practice at the Bar, particularly so in my years of practising industrial law.
In the matter in Sale, the Deputy President invited your Honour and your opponent to join him for a meal during an adjournment. Politely, your Honour declined and you and your rather raffish clients took off in your respective four-wheel drives down to the river, then into a pair of shorts for a splash around in the water, and there was the contrast. The Deputy President and your opponent in suits, returning from their repast; your Honour, your instructor and your raffish clients emerging from the river in wet shorts, looking like drowned rats. Your Honour got to know your clients. You got to know their industry so as to fully understand the detail of the case. You also got to know your associates. You worked on one-year terms, so you’ve had a lot of them, and many of them are also here today.
Ms Glanville mentioned some of the hazards of the Outback as Aboriginal Land Commissioner. One associate recalls his first case in Townsville. Your Honour led him off on a bush walk, but, alas, you became terribly lost. You found yourself in the stifling heat and humidity of swamplands, wading through mud and reeds. You saw a sign ahead, but, unfortunately, it was facing the other direction. When you got close enough to see the other side of the sign, it was no comfort. It said:
Beware. Crocodile-infected marshlands.
Nor did your Honour’s non-drinking, non-smoking, vegetarian, low glycaemic index regime fit in particularly well with the Northern Territory lifestyle. On your first visit to Tennant Creek, you went to the fanciest place in town: the Dolly Pot Inn. When I say “fancy”, that is, of course, a relative term. It was the best that Tennant Creek had to offer. It also housed the squash courts, the pungency of which intruded into the restaurant. The owner had word that the judge was coming. Eager to make a good first impression, he had readied his finest steak and a bottle of red wine. “Incredulously dismayed” would describe how the Northern Territory’s reaction was to a teetoalling vegetarian.
The Northern Territory was a different universe. Your Honour was following in a four-wheel drive that a group of indigenous claimants were driving. You were alarmed to see a rifle poked out of the rear side of the car. There was a shot, not at you, I hasten to add, but at a passing bush turkey. The turkey was wounded and still running. The claimants’ vehicle screeched to a halt, the shooter leapt out, ran after the bird and finished off the job by strangulation, and then, of course, they wanted to share the cooked bird with you.
The one thing that did well in the Territory was the guitar and harmonica, and especially the blues music that many Territorians, if not all of perhaps your Honour’s city-bred associates appreciated. For example, Loudon Wainwright IIIs Dead Skunk In The Middle Of The Road, Howlin’ Wolf’s Ain’t Superstitious, Black Cat Just Crossed my Trail, blending with Rodgers and Hart’s Blue Moon or the 2 Ukes’ version of Stormy Weather, which I did google today, and it comes up pretty well. And then there was your Honour’s homespun sense of humour. “Who sits on the top of a car and plays music?” Burt Packarack. I’m a little surprised I got away with that one.
People you know don’t drink – people know you don’t drink, but sometimes they think that maybe you have been. One perhaps somewhat quirky compliment is that you’re one of a few tee-totalling vegetarian low glycaemic index Howlin’ Wolf blues fans who is fun to be with. Over the course of the 29 years on the Bench and out in the bush, in those aspects of your Honour’s courts, your Honour’s jurisdiction, your Honour has been an outstanding and very human judge. On behalf of the Law Institute of Victoria and the solicitors of this state, I wish your Honour and your wife Ruth and your family all the best in your retirement. May it please the Court.
ALLSOP CJ: Justice Gray.
GRAY J: I acknowledge the Wurundjeri people as the traditional owners of the land on which this Court complex is built, and the people of the wider Kulin nations, and pay my respects to their elders, past, present and future. As will appear later, I do not intend these words to be a mere formality.
First, I want to tell you about the best decision I ever made. It was long before I became a judge, before I even began to practice at the Bar. It was to ask an intelligent, capable, caring and beautiful young woman named Ruth to marry me. My career would have been impossible without Ruth. When things have gone well for me, which has been most of the time, it has been because Ruth has been lifting me up. On the few occasions when there have been setbacks, she has been there to lift me up again. The nature of my practice at the Bar and my duties on the Bench, particularly the time spent away from home, meant that Ruth bore far more than her fair share of raising our two wonderful daughters, Belinda and Alex, to be the amazing, multi-talented and delightful adults that they are. I hope that retirement will give me more time for spending with Ruth, Belinda and Alex, and our son-in-law Will, and will enable me to have a significant role in the lives of our perfect one year old grandsons, Thomas and Wilbur.
My career was set on its course at the beginning of my final year at law school when the Dean, Professor Harold Ford, asked me if I would like to be interviewed for the position of associate to Justice Richard Eggleston of the Commonwealth Industrial Court. I was given the job. I changed the subjects I proposed to take in my final year to include industrial law. I felt in harmony with the area of law. It is law that matters in the lives of people from day to day. As it turned out, Richard Kenzie and I shared the exhibition in that subject. Richard, now Richard Kenzie QC, and I have been close friends since our first year in law school, 50 years ago next year. I am delighted that he is seated at the Bar table today.
I was influenced to a very large extent by Dick Eggleston, who was unsurpassed as a lawyer and whose humanity and wisdom were admirable. He imparted to me so much, not only by teaching me the law and how to research it, but also by telling me the things that every lawyer should know. Then I went to Oxford, where I was privileged to be a student of Professor Otto Kahn-Freund, England’s greatest ever labour lawyer, in his last year of teaching and then of Dr Mark Freedland, subsequently Professor Mark Freedland, whose contribution to the field is recognised throughout the world.
I returned from England and went to the Bar, ready to practise in industrial law. As is often the case, I did not break into my desired area of practice immediately. It was not until I had been at the Bar for more than five years that Richard Kenzie recommended that John Ryan, one of the leading solicitors in the field, give me a try. I passed the test. I began to get a lot of work from John Ryan, and his partners, who included Orm Thomas, my friend since I was eight years old. I welcome Orm and Ruth Thomas today. (Incidentally, I was not the dame, Orm was the dame. I was the king. We got married at the end of the pantomime. In the course of it, we sang a song. I think it is fair to say that neither of us is a great vocalist.) Very quickly, I became a specialist in the area of law that I love, and that would lead me to being a judge of this Court, the Court that I felt I would most like to join. I have never regretted the decision to accept the appointment. I have always been grateful for the experience that I gained in my early years at the Bar, in criminal law, common law, equity, property law and commercial law, which has given me the grounding to expand beyond industrial law in this Court.
My specialisation in industrial law has led to many friendships with others in the field. I am proud to have been a founding member of the editorial board of the Australian Journal of Labour Law, the founding chair of the advisory board for the Centre for Employment and Labour Relations Law at the University of Melbourne, and a founding member of the Australian Labour Law Association. My membership number is 002, and I have been searching for 001 for a long time. All of these are creations of Professor Richard Mitchell, and he and numerous other fine academics, well represented here today, ensure that the level of scholarship, publication and teaching in this important field is very high.
There is no doubt that to be a judge of this Court, particularly in its Victoria District Registry, is a great privilege. As a judge, I have been surrounded by the best possible support network. The friendships I established with Commonwealth drivers in my early days of regular travel with them are still fond memories, and have found their echoes in occasional trips to and from the airport in recent years. The security and building management personnel in this building are unfailingly friendly and helpful. I have appreciated friendly contact with those who have cleaned my chambers, which is a difficult task. Staff in the registry of the Court work very hard to ensure that the lives of judges are as smooth as possible. During my time in the Court, this registry has made enormous progress in becoming a happy place to work. The management practices begun by Peter Secombe and progressed by Jamie Wood have been further enhanced by our present District Registrar, Sia Lagos. She has a first rate team of deputy registrars whose expertise in the performance of vital judicial functions, mediation, case management and many other areas is essential to the functioning of the Court. The reputation of this Court for courteous and efficient service to the public and the legal profession depends as much on our registrars and our registry staff as it does on judges. They do us proud.
There is no doubt that the administration of the Court at a national level became far more professional than it had been on the appointment of Warwick Soden as the principal registrar. Warwick is always available and always listens. He and his team ensure that so many important aspects of the Court run smoothly.
When I was appointed to this Court, I received a very kind note from Gerard Brennan, then a justice of the High Court and a former judge of this Court. He congratulated me on becoming a member of what he described as the happiest and most united court in Australia. I think he was right. I was welcomed into a team of judges who dedicated themselves to an important task, to do justice according to law. There had been only eight judges of the Court who had been elevated to the High Court, died or retired before my appointment. I therefore had the opportunity to work with, and to learn from, some of the great pioneers of the Court, Justices Reg Smithers, Ted Woodward, Bob Franki, Phil Evatt (who appointed himself to be my minder), Ray Northrop, John Keely, John Toohey, Bob Fisher, John Lockhart and Ken Jenkinson. I welcome in particular Ray Northrop, who is here today, my old and very dear friend.
I shared much of my career with Justices Murray Wilcox and Jeff Spender, who were appointed at the same time, and I am honoured by the attendance of Jeff Spender, all the way from Queensland. On our 20th anniversary, Jeff sent me an email that said, “Do you realise that if you had murdered someone 20 years ago, you would be a free man by now?” Our appointments in 1984 took the Court to a complement of 29, of whom I am the one left. Since my appointment, three Chief Justices and 95 judges have been appointed. One Chief Justice and 41 judges will remain after midnight tonight. This means that I have seen three Chief Justices and 54 judges come and go. My friend and colleague, Justice Terry Higgins and I are the only two to have served with Sir Nigel Bowen, the first Chief Justice, who established the Court and set it on its course. When Justice Higgins retires later this year, as he is required to do because of age, the next senior judge will be Justice Shane Marshall, who was appointed more than 11 years after I was. It is hardly surprising that I have begun to feel like yesterday’s man.
Justice Higgins and I are the only two judges left to have served throughout the term of Chief Justice Michael Black, who honours me by his presence on the Bench today. Michael is responsible for so much of the development of the Court, particularly the collegiate ethos that preserves its united and happy spirit, the superb buildings that now house it throughout Australia and its world-class system of case management and resolution. Chief Justice Pat Keane stayed with us for too short a time before taking up his well-deserved place on the High Court. I am confident that, under the leadership of Chief Justice James Allsop, the Court will continue to be a progressive leading institution within the Australian judicial structure, and I thank you, Chief Justice, for your kind words to me today. To all of my colleagues past and present, I express my profound thanks for the warmth and comfort that I have always felt as part of this Court, and for keeping alive the happiness and unity that Gerard Brennan identified as its most important characteristic.
Being a judge of this Court can open up opportunities to serve in other capacities. I have valued the chance given me to serve on the Administrative Appeals Tribunal, where I have enjoyed contact with colleagues not only from the legal profession but from other backgrounds as well. I thank them for their friendship and for the education they have given me. The National Native Title Tribunal proved to be a massive challenge. I think I can claim to be the least successful mediator in history, as a result of my experience in the tragedy that was the Yorta Yorta application. I literally could not even produce agreement on what time to adjourn for lunch, a question that did actually matter, given that there were diabetics involved in the negotiations.
I am grateful to the Court for sponsoring my attendance at LAWASIA conferences, particularly those about labour law. My membership of the LAWASIA Standing Committee on Labour Law has led to friendships with labour lawyers in other countries in the region. The conferences are a great learning experience, but also opportunities to enjoy the warmth of those with similar interests. My work with the Indonesian judiciary over many years and more recently with newly-appointed judges, magistrates and court administrators from Papua New Guinea and the Pacific Island nations have also taught me much. I hope to continue my involvement in these worthy programs.
By far the most satisfying aspect of my career has been the time I spent as Aboriginal Land Commissioner, hearing land rights claims in the Northern Territory. I grew up in the eastern suburbs of Melbourne, as ignorant as anyone can be about Aboriginal people and their culture. Land rights claims gave me the opportunity to learn first-hand about ancient legal systems and about contemporary Aboriginal lives and perspectives. My teachers included some of the most admirable people I have ever met. Spectacular locations were a bonus. It was an opportunity few can have and I am most grateful for it.
My claim hearings were organised with the utmost attention to comfort and efficiency by the amazing Robert Bird, Executive Officer to the Aboriginal Land Commissioner. I am indebted to Robert and Wynne Bird for making the trip from Adelaide to be here today. For a number of my claims, Tony Neal, now AC Neal SC, was my counsel assisting. I worked with two of the best anthropologists in the world as my consultants, Dr Deborah Bird Rose and Dr John Avery. Graham Donges and, in later claim hearings, Graham and Irene Donges, recorded all the evidence and produced a transcript of the finest quality. Long trips in four‑wheel drive vehicles, and camping for extended periods in remote locations, brought us all close together. The experience of working with that team is itself one of the highlights of my career. I welcome Tony Neal, who is seated at the bar table, and Debbie Rose, who has travelled from Sydney and John Avery and Virginia McAndrew, who have travelled from Canberra.
My introduction to the Aboriginal world in that way led me to involvement in organising and attending programs designed to spread Aboriginal cultural awareness among judicial officers, both nationally and in Victoria. This has resulted in friendships that have enriched my life. I am honoured today by the presence of my friend, Uncle Johnny Lovett, a Gunditjmara man from the western district, a man of great wisdom, wide experience, and tremendous courage, and I might say, a magnificent musician who is kind enough to allow me to play a little harmonica with him from time to time. I hope that continues. I acknowledge the tireless work in cross-cultural communications and the difficult issues of Aboriginal societies, work worthy of the greatest commendation, of Wanda Braybrook and Kelly Faldon. I am also thrilled that Matthew Ferrari is here. I am supposed to be his mentor in his studies, through the excellent scheme of the Victorian Bar to provide mentors to Indigenous law students. Matt does not need my help to get his law degree, but I am extremely happy that we have become mates. I have warned him that I will not disappear just because I cease to be a judge.
The biggest disappointment in my career has been to see the opportunity given to us by the High Court in the Mabo case squandered. The concept of native title has been reduced to something of little practical significance by judges who have been unable to understand, and legislators who have been consciously averse to, the vital relationship between people and land in Aboriginal traditions. Sadly, it will be left to a future generation of Australians to devise a new system that recognises and respects the rights of our Indigenous peoples and returns to them a measure of control over what, but for colonisation, would have been indisputably theirs. Only such a system will allow those of us who have come later to this country to say that we truly belong.
My experience as an associate caused me, on my appointment to this Court, to adopt a particular principle. I decided that each year I would take a new associate. It has not quite worked out like that, because a couple of times I have needed to fill the position on a short-term basis. Altogether, I have had 31 associates, most of whom are present, some of them having travelled from interstate to be here. At the start, I fondly imagine that I was benefiting those I appointed, the legal profession, and society as a whole by giving recently qualified lawyers the experience of working in a judge’s chambers. I realised very quickly that I gained far more than the associates did. I had the advantage of drawing on their knowledge of recent developments in the law, and their perspectives on issues that arose. Even more importantly, I acquired an ever-expanding family of articulate, clever and committed people, who have gone on to make significant contributions to the law, public administration and business. I am proud to be able to say that they served with me, and I thank them all for what they have given me. Each has my best wishes for the future.
The other position on my staff, called secretary, then personal assistant, and now executive assistant, has been occupied by three people. The first was Karen Darling, whose uncompromising pursuit of perfection set the tone for quality of work in my chambers. She has gone on to a career that has involved establishing her own businesses. She remains a valued friend whose courage and determination continue to inspire me, and I welcome her presence today. Karen was followed by Jean Bray. For almost 10 years of my time at the Bar, Jean worked for a group of barristers of whom I was one. She provided me with another six years of loyal service during which she completed two degrees as a part-time student. Jean has gone on to become a qualified clinical psychologist, practising as a counsellor. Sadly, she has sent an apology for today.
In March 1993, Carol Davies came to my chambers. She has remained with me for more than 20 years. Carol’s management of every aspect of my judicial life has been so thorough and so efficient that there is a constant danger that I might fail to notice or to acknowledge just how great she is. Her selflessness and devotion to her job are extraordinary. Her patience with my many failings appears to be unending. If, as is likely, she has ever felt like strangling me, she has not made that feeling known. It has been a great joy to me to watch Carol grow as a person, as her responsibilities have increased. She is loved by everyone who works in the Court. My biggest regret about retiring is that Carol is left to find another job. I have the highest possible regard for her and wish her and her husband Fab a long and happy life together.
Friendships made in the law can be some of the most important in a life. In my case, a friendship group formed on the fourth floor of Equity Chambers in the mid-1970s has proved to be so. We called our chambers Piddington Chambers, after the least successful High Court judge we could think of, Albert Piddington, who resigned his appointment without ever sitting (although, he did have a distinguished career otherwise). David Habersberger, now retired from the Supreme Court of Victoria, my colleague Justice Tony North, Tony Neal SC, Lou Papaleo and I have maintained this group since that time. Each Friday, we endeavour to lunch together. We celebrate with our respective partners important events in our lives. I hope to continue those traditions for many years.
As for my work, there are some things I have done of which I am extremely proud. There are others I know I could have done better. The vast bulk of the work I have done I have just done. Most of a judge’s life consists of just doing what is required. If there are moments of glory, they are rare. There is no doubt that the pressure of work in this Court has increased over the years. It is a very rewarding thing to be a judge, but it is also difficult. When enthusiasm wanes, retirement should follow. Concerns about health become magnified with advancing age. There will be aspects of the job I shall miss. Mostly they will be people. I am happy to have been here, but also happy with my decision to leave.
Ms Glanville, Mr Kite, Ms McLeod and Mr Holcroft, I thank you for your attendance today and for your very fine words about me. I am grateful to all those who have done me the honour of attending this sitting of the Federal Court of Australia, my Court for 29 wonderful years.
ALLSOP CJ: The Court will now adjourn.