Ceremonial Sitting of the Full Court
for the Swearing in and Welcome of the Honourable Justice Farrell
Transcript of proceedings
THE HONOURABLE PATRICK KEANE, CHIEF JUSTICE
THE HONOURABLE JUSTICE EMMETT
THE HONOURABLE JUSTICE JACOBSON
THE HONOURABLE JUSTICE EDMONDS
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COWDROY OAM
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE ROBERTSON
THE HONOURABLE JUSTICE GRIFFITHS
THE HONOURABLE JUSTICE KERR
THE HONOURABLE JUSTICE FARRELL
9.32 AM, WEDNESDAY, 5 DECEMBER 2012
FARRELL J: Chief Justice, I have the honour to announce that I have received a commission from Her Excellency the Governor-General appointing me a judge of the Federal Court of Australia. I now present my commission.
KEANE CJ: Mr District Registrar, will you please read aloud the commission?
Commission of appointment of a judge of the Federal Court of Australia: I, Quentin Bryce, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution, and subsection 61 of the Federal Court of Australia Act, 1976, appoint Lucy Kathleen Farrell to be a judge of the Federal Court of Australia, assigned to the Sydney registry, beginning on 5 December 2012 until she attains the age of 70 years. Signed and sealed with the great seal of Australia on the 25th day of October 2012, Quentin Bryce, Governor-General by Her Excellency's command, Nicola Roxon, Attorney-General.
KEANE CJ: Justice Farrell, I now invite you to take the oath of office.
FARRELL J: I, Lucy Kathleen Farrell, do swear that I will bear true allegiance to Her Majesty, Queen Elizabeth II, her heirs and successors according to law, that I will well and truly serve her in the office of judge of the Federal Court of Australia, and that I will do right to all manner of people according to law, without fear or favour, affection or ill will, so help me God.
KEANE CJ: I now invite you to subscribe the oath that you have just taken. Mr District Registrar, will you keep these papers for the records of the court. Congratulations.
FARRELL J: Thank you.
KEANE CJ: May I welcome you all on the occasion of the swearing in of Justice Farrell as a judge of the Federal Court of Australia. This is an important occasion in the life of the court and of the Australian community. The importance of the occasion is confirmed by the presence of distinguished guests. In particular, I acknowledge the presence of Mr William Gummow AC QC. It is also a source of great satisfaction to the members of this bench to acknowledge the presence of Chief Justice Bathurst of the Supreme Court of New South Wales, and our colleagues from the Court of Appeal and Supreme Court of New South Wales.
I am particularly delighted to acknowledge my successor designate as Chief Justice of this court, Justice Allsop, President of the Court of Appeal. It is also good to see many retired judges of this court, who have come to be with us on this important occasion. It is gratifying, indeed, to note the Honourable Nicola Roxon, the Attorney-General of the Commonwealth has been able to make time to attend today's ceremony.
Before I call upon the Attorney-General to address the court, there are two matters, which I would like to mention briefly. First and most importantly, Justice Farrell, may I say, on behalf of your new colleagues on the Federal Court of Australia, that we are delighted that you are joining us on the court. On behalf of all of us, the judges of the Federal Court, I offer you our warmest welcome and, if I may claim a moment of personal indulgence, may I say in the language of the ancestors we have in common.
Justice Farrell, you bring to a court a wealth of commercial experience, and that experience is crucial to the discharge of the work of this court. Every day in the financial pages of our newspapers, we see references to the work of this court in its commercial cases. The need for judges steeped in corporate knowledge and commercial experience is essential if the wheels of commerce are to be kept turning for the benefit of the Australian community, both business and consumers.
Justice Farrell has been, since 1995, a fellow of the Australian Institute of Management. Her Honour has also been a fellow the Australian Institute of Company Directors, and a fellow of the Australian Academy of Law. For 10 years, she was a representative of the Law Council of Australia on the ASX Corporate Governance Council. Since 2001, Her Honour has been a members of the Takeovers Panel, and since 2010, Her Honour has been president of the Takeovers Panel. That is a most impressive record of service to the law and to the business community.
Justice Farrell's record of service to the law, the community and the legal profession in these important roles means that the skill, energy and diligence she has demonstrated have become matters of public record. We have every confidence that the skill, energy and diligence that she has demonstrated will be put to good, and I fear to say, immediate use on the court. Secondly, it is our earnest hope that you will enjoy working with us as much as we are confident we will enjoy working with you. Attorney-General for the Commonwealth, do you move?
MS ROXON: May it please the court, first can I acknowledge the traditional owners of the land that we are meeting on and pay my respects to their elders, both past and present. It is a pleasure and privilege to be here this morning to represent the government in welcoming your Honour, Justice Kathleen Farrell, as a judge of the Federal Court of Australia, and I extend my warmest congratulations to your Honour.
Your Honour's appointment, as the Chief Justice has just mention, recognises your skill and experience, particularly in corporate law, which have been honed over the course of your distinguished career. It is also a reflection of the esteem in which you are held by your colleagues. Many of these colleagues are present here today, along with your family and friends, to celebrate this special occasion.
I would like to particularly acknowledge your family, the presence of your five brothers and sisters, Mary, Noreen, Josephine, Jim and Dennis, your sister-in-law, Jennifer, your niece and nephew, John and Danielle, and your God-daughter, Emily, and your God-son, Hal, are also here today. I understand at least one of those family members has another important commitment today, graduating in year 12, so I am sure you will both share this date as something to celebrate in the future.
Your appointment comes at a time of change and renewal of the court, most immediately are your Chief Justice, the Honourable Justice Patrick Keane, has been called to serve on the High Court of Australia, a reflection both on his personal qualities and the strength of and high regard in which the Federal Court is held. It is also a time when strong appointments, such as yourself, will help change the composition of the court to better reflect the Australian community that it serves.
In the history of the Federal Court, the appointment of a solicitor is quite a rare event, and I have made no secret of my view that improving the professional, cultural and general diversity of courts across the country can only strengthen and deepen the role, and the respect with which the court is held. Of course, these appointments must also be of the highest professional and legal calibre, and your appointment meets, easily, all of those standards.
As one of six children born to parents who separately emigrated from Ireland in the 1920s, your Honour's life reflects that of many Australians whose parents bravely chose to make a new life for themselves half a world away. Your parents, both from large families in rural Ireland, left their homes during a time of recession and hardship. Modelling an incredible work ethic, often in very labour intensive jobs, your parents built a life for you and your siblings here in Sydney.
The careers and callings pursued by your family reflect a diversity of interest, but a consistent theme of giving back to the community. I am not sure that there are many families that can boast two nuns amongst their siblings, or a teacher still going strong at the front of the class at the age of 74. I do hasten to add, your Honour, that is something that our constitution doesn't contemplate for judges on the bench.
Following your parent's example, you developed a remarkable work ethic, which has become the foundation of your achievements at school and during your legal career, and I am sure this will continue to serve you well on the court. Your Honour attended St Francis Xavier Primary School and then Monte Sant' Angelo Mercy College, and I am advised that it was during this time that you developed your passion for the piano.
In this pursuit, you demonstrated several qualities, I am told, which have characterised your life; discipline, determination, loyalty and strong friendships. Even after you left school, your music teacher, Mrs Lillian Beamon, encouraged you to continue your lessons, maintaining what had become more a friendship, as well as a teacher student relationship, and I understand that she graciously left you an endowment by a piano, and have it on good advice that your baby grand remains one of your most treasured possessions.
In 1979 your Honour graduated top of the class with a Bachelor of Laws and Bachelor of Arts from the University of Sydney, and you were admitted as a solicitor to the Supreme Court of New South Wales. That same year, you commenced work as a solicitor with the firm of Freehill, Hollingdale & Page in the mergers and acquisitions field. You came into a truly eminent group of lawyers, which included the late Honourable Kim Santow and David Gonski, as well as the President of the Court of Appeal, Justice James Allsop. It was exceptional recognition of your talent by these leaders in corporate law when you became a partner at only 28 years of age.
Today it is easy to overlook what an important step it was for your Honour to make partner in the field of corporate law at that time, but it's worth noting here that your efforts, along with colleagues such as Pamela Edwards, have paved the way for a generation of women to fill the very highest positions in law in Australia. Your Honour was partner for 14 years at Freehills and has worked as a consultant since 2000. During your career, your Honour specialised in corporate law, as the Chief Justice has mentioned, and have been involved in some of Australia's most significant corporate law actions.
You led the purchase of the East Coast Seven Television Network, the privatisation and float of the TAB by the New South Wales Government, and the float of Optus. One of the people, who worked with you through this time, noted that you are the type of person who never rests until you have the answer, even when you don't strictly need it, which perhaps reflects your early time as a tutor at the University of Sydney. I did wonder that perhaps your colleagues on the bench might perhaps advise against this approach in your new career.
Accordingly, your Honour will bring a wealth of practical and legal knowledge to the bench, however the Federal Court will not only reap the benefit of your technical strengths, but also your experience in public administration, and as a member on public and private sector boards. Between 1992 and '93, your Honour led enforcement at the Australian Securities Commission, now ASIC, and for a period acted as a member of that Commission. You were, for example, instrumental in the successful prosecution of the Bond Corporation.
The late Honourable Kim Santow, who I mentioned before, was a significant influence on your career and in your life. He was also instrumental in setting up the Australian Government Takeovers Panel, so it was fitting that later you became a member of that panel in 2001 and were appointed the president in 2010. Your Honour has also used your skills and experience to give back to the legal profession through your contribution to the Law Council and other organisations, which I'm sure my friends at the bar table will talk about in more detail.
These activities were within the legal community, but outside your specific professional duties, I think also demonstrate your long-standing commitment to public service and strengthening the Australian legal institutions. At every step, your Honour, you have shown you recognise the benefits of Australian life that your parents worked so hard for, and that they exist only because of a willingness of leading figures to contribute their time and expertise.
Your friends and colleagues attribute to your Honour a number of admirable personal qualities that I have mentioned; hard working, meticulous, unflappable and fair. Your Honour has also been described as an inspiration, admired for your superior clarity of thought and intellect. I do confess that our researchers couldn't find many cheeky or funny stories to tell. Perhaps this is a sign of admirable discretion or perhaps, as one of the others put to me, a fact that you always took very serious jobs very seriously and were admired for that.
But I do understand that you do find time to pursue some other passions outside of the law in addition to your piano playing. I am reliably informed that you are known for fabulous dinner parties, during which you would prepare food that would rival that of a three hatted chef. I am told you are also an industrious craftswoman, creating a large number of intricate knitted and crocheted shawls for friends' babies.
Perhaps, in contrast to this, I am also told that you have rather a passion for driving sports cars, perhaps sparked by the fact that, for many years, the families main vehicles consisted only of your father's work trucks. Once you started work, I understand you immediately upgraded from your Toyota Corolla to a sporty Renault Fuego I'm not sure if that's the thinking person's Porsche but that's what I am told and after a rather unexpected, but I am told, neatly controlled 180 degree spin on the approach to the Harbour Bridge, it was time to upgrade to a Toyota Supra and then a convertible Lexus.
I understand you might have taken your foot slightly off the pedal with your current Volkswagen Golf, and again I wondered whether maybe this appointment will encourage your colleagues to talk to you about a vehicle that will befit the dignity of the court, but also meet your need for speed. These pursuits certainly reflect a person for whom the law is vitally important, but definitely not the sole interest in your life.
Your Honour's personal qualities, skills, background and experience will bring a valuable and new perspective to the Federal Court. Justice Farrell, on behalf of the Australian Government, I extend to you the warmest congratulations on your appointment and welcome you to the bench of the Federal Court of Australia. May it please the court.
KEANE CJ: Thank you, Attorney. Mr O'Loughlin, do you move?
MR O'LOUGHLIN: May it please the court, I too acknowledge Australia's rich and proud indigenous heritage. Your Honours, distinguished guests, Attorney-General in particular, both past and present members of Federal and State Courts here today, and fellow members of the profession, I appear on behalf of the Law Council to express the pride of this Australian legal professional in your Honour, Justice Farrell's appointment to this court. I do so on behalf of each constituent body and section of the Law Council and their respective members.
It is an honour to address the court on the swearing in and welcome of a judge. It's an even greater honour to do so, and represent the law council, at the welcome of a judge with your Honour's connection with the Law Council, and through which I have had an extensive personal, professional connection. I particularly thank the President Elect of Law Council, Mr Catanzariti, who is behind us here today for that privilege.
Your Honour's contribution to the work of the business law section, and the wider Law Council, has been lasting and profound. Your Honour joined the business law section of the Law Council, on the Sydney arm of its corporations committee, early in 1996, and immediately came to work alongside Justice Barrett and Professor Bob Austin before their appointments to the Supreme Court of New South Wales, and with Professor Bob Baxt.
Your Honour has served that committee for 17 years since in a variety of ways, including in leadership roles for extended periods. Your Honour was the Deputy Chair of the Sydney arm of the committee for 1999 and 2000, and the National Chair of the Committee for 2001 and 2002. When your Honour joined the Sydney committee it had 15 members. It was not vibrant in its activity, and it enjoyed less than optimal member attendance at meetings, some of which your Honour missed. If history repeats itself, the court can expect Her Honour to be missing occasionally and, within a year, to blossom into a level of activity that will be very impressive.
Not coincidentally, following your Honour joining the committee and becoming active in its work, its activity level increased and the contribution the committee made to the implementation of better corporate law policy in Australia, and the better implementation of that policy in Australia, improved dramatically. The size of the committee in Sydney, and then nationally, improved dramatically. The average age of the committee dropped, and the general balance of the committee improved. Today the committee has 193 members, 65 of whom are in Sydney.
Your Honour has also been a long serving member of the Business Law Section Executive for nine years from early 2004. You were the Deputy Chair of the Business Law Section in 2006 and 2007, you were the Chair in 2008 and 2009, and in these roles, the benefit of your Honour's experience, wisdom, clarity of thought and strategic direction was made available to the extended business law section as a whole, and beyond your Honour's term as Chair of the section, your Honour has continued as a valued sounding board, confidant, and contributor to strategic direction for succeeding Chairs, and for that, your Honour, I extend a very personal thank you.
Your Honour's involvement in the workings of the Business Law Section, in its Corporations Committee in particular, has been marked by, among others, three particular features. The first, touched on earlier, is your Honour's efforts and achievements in bringing younger lawyers into the fold, both at the committee and section leadership level. This has provided for necessary ongoing renewal of both membership and thought within the organisation.
The second is continuing education. Your Honour has been a consistent organiser of, participant in, and contributor to workshops and seminars, assisting and continuing the work of Professor Bob Baxt. Your Honour has also been the driver of a new corporate law scholarship awarded by the Business Law Section to be named in honour of your Honour's mentor, the late Honourable Kim Santow.
And the third is your Honour's efforts in introducing senior government officials from treasury, the Attorney-General's department, and other law reform bodies to the work of the Business Law Section and the Corporations Committee in particular. Those efforts have directly contributed to developing trust and confidence in those agencies, which in turn has facilitated the Business Law Section participation in the development and evaluation of corporate law policy.
Through these processes, the resources of the Business Law Section have been made available to government, and through government, to the wider community. Beyond the Business Law Section, as the Chief Justice noted, your Honour has been involved with the Takeovers Panel and the ASX Corporate Governance Council. You are fondly recognised for your work on the council for the last ten years, and particularly for developing the council's corporate governance principles and recommendations.
The Attorney-General has noted your Honour's passion for sports cars. The adjective "fast" should be added to that description, and recent events connected with that passion illustrate one of your Honour's attributes that will equip you well for your future role. Your Honour's capacity to receive and act upon appropriate and sensible advice. That is something that people at this side of the bar table will urge upon your Honour in the years to come.
Before your Honour's most recent fast car purchase, your Honour received some advice from a car salesman, someone knowledgeable in his field, and that advice was to the effect that one of the fast car models, then under active consideration, would attract attention, not attention of law enforcement officers but attention of people with tattoos. Your Honour received that advice and you made your choice.
Once again, on behalf of the Law Council of Australia, its constituent bodies and sections and their respective members, I extend to your Honour our heartfelt congratulations and best wishes, and a very warm welcome as a judge of this court. We wish you a long and rewarding career in that role. The community looks forward to the contribution that you will make. Adapting words used by the Attorney-General on another somewhat similar occasion, from a current Business Law Section Chair to a former Business Law Section Chair, well done. May it please the court.
KEANE CJ: Thank you, Mr O'Loughlin. Ms Needham, do you move?
MS NEEDHAM: May it please the court, it's my great pleasure to speak this morning on behalf of the New South Wales and Australian Bar Associations, and to herald the appointment of an eminent corporate lawyer and respected authority on the law of mergers, acquisitions, and securities to this court. Justice Farrell, the Attorney and Mr O'Loughlin have spoken already of your qualifications and broad commercial experience.
Although your Honour was not primarily a litigator, your Honour is held in high esteem at the New South Wales Bar. Many senior counsel have praised your objectivity, professionalism and dedication to clients and, on the other side of the ledger, your Honour's record of public service with Australia's corporate regulators is equally impressive. A silk with experience on the Takeovers Panel remarked that your Honour's judicial qualities were obvious, especially since you assumed the presidency of the panel in September 2010.
Your ability to strike a balance between the competing interests of directors and merchant bankers on the one hand, and their obligations under the law on the other was, he said, impressive. Another barrister with whom you worked on a major insider trading case said, "Her radar is impeccable. She is always calm and never has to raise her voice because you just know you have to do as she says."
Of course, it's impossible to reach the highest echelon at private practice without determination and a capacity for sheer hard work, both of which your Honour has in good measure. Focussed and dedicated, calm and methodical is the common refrain. As tough as old boots is the more colloquial description. A former staff member at Freehills recalls vividly the time that you were struck down with a migraine before an important conference. Unbowed and determined to carry on, you rested on a couch and issued instructions to your junior who came and went from your room.
Whereas accolades to your Honour's knowledge of the law are abundant, uncovering whimsical stories can, as Mr O'Loughlin said, be a little more difficult. Indeed, one of the law's greatest paradoxes can be the contrast between a reputable solicitor and a colourful client. It is something that is all too familiar to members of the Criminal Bar. In your Honour's case, many a layperson may have wondered why the solicitor for Christopher Skase and his Quintex Group wasn't the flamboyant personality they might have imagined. Those laypersons may have been unaware of your Honour's choice of motor vehicles.
Nevertheless, your Honour put those experiences in the heady days of the 1980s to good use when, in 1992 to 1993, you were seconded to the Australian Securities Commission, where you taught defence against the dark arts. You were given the rather ominous sounding title of National Coordinator for Enforcement, something which wouldn't happen nowadays because it would surely be ridiculed by the ABC's Chaser program. There, your Honour oversaw, amongst other things, the investigation into the Bond Group of Companies.
Your Honour was admitted as a solicitor of the Supreme Court of New South Wales in July 1979 and went to work at Freehills with a young James Allsop, soon to be your Honour's boss, amongst your contemporaries. Since July 2000, your Honour has been a consultant at Freehills, now known as Herbert Smith Freehills, and was a partner for 17 years prior to that. Your clients sat squarely in the middle of the big end of town, and included Citigroup, Coca Cola, Suisse Bank, and the New South Wales Government. In the case of the Citigroup litigation, your Honour successfully defended the client against insider trading.
Your Honour has lent time and expertise generously to peek legal organisations and to further the cause of corporate and regulatory law reform. For many years, you were a member of the Business Law Section of the Law Council of Australia, as we have heard, and served as its Chairperson for two years. You were a significant contributor to many important submissions on matters of great concern to Australian businesses, such as continuous disclosure, prospectus reform, and ASIC's infringement notice regime. Your Honour also represented the LCA on the Australian Stock Exchange's Corporate Governance Council.
Your Honour became a member of the Takeovers Panel in 2001, and in September 2010 you were appointed as its president, the first woman to be afforded that honour. In fact, that position led your Honour to be in the interesting position, as Mr Bennett QC has reminded me this morning, of being a recent litigant in this court. Your Honour was a co-respondent with Mr Bennett QC only, I understand, last week. It has been a swift move from one side of the bar table to the other.
Justice Farrell, you attained the pinnacle of private legal practice and matched it with outstanding public service. Judicial office is the next logical step. Through your appointment, the Federal Court is gaining an exceptionally skilled lawyer with comprehensive experience in one of its more important jurisdictions. The Attorney-General, the Chief Justice, and the selection panel are to be congratulated for choosing so wisely. The Bar congratulates you. May it please the court.
KEANE CJ: Thank you, Ms Needham. Mr Dowd, do you move?
MR DOWD: May it please the court, on behalf of the Law Society of New South Wales and the 26,000 solicitors of this state, I am very proud and honoured to welcome one of our own to the bench of the Federal Court of Australia. May I add my personal congratulations, having had the pleasure of meeting your Honour for the first time earlier this year. May I note, humbly I hope, that within 48 hours of that meeting, your Honour's appointment to this very bench was announced, and at the Law Society we now refer to that as the Dowd-Midas touch.
Your Honour, in the celebration today, becomes the 15th woman in the court's history to have been elevated to this bench. Your Honour was one of the first women to achieve partner status at Freehill, Hollingdale & Page, and the first female solicitor to assume the presidency of the Takeovers Panel. With the ratio of female to male young lawyers admitted to practice currently standing at 2 to 1, we anticipate a significant upward trend in the female composition of the judiciary in future years.
Your Honour, as the fourth speaker today, I don't wish to reiterate much of what has already been said. Indeed, I suspect much of it has already been poached by previous speakers. I do wish to say, however, that it is fortuitous that your Honour's swearing in ceremony takes place in the aftermath of the US elections, as one doubts that you would otherwise have been able to tear yourself away from the re-runs of the entire West Wing series. Such stamina and single-mindedness on the task at hand ….. well for your future on the bench.
Of course, there is only so much preparation one can do prior to taking up this appointment. Much is gained by observation and a willingness to learn. The late Kim Santow OAM was one of your Honour's early mentors at Freehills, and later a colleague on the Australian Government Takeovers Panel. When reflecting upon his own appointment to the New South Wales Supreme Court Bench he said, "There is no transition, we simply emerge as judges, like Venus formed fully from the waves."
As a judge, one becomes a little circumspect in order to guard against taking any action that may be deemed inappropriate. I am informed there was an occasion where your Honour was happy to vouch for prospective tenants wanting to rent the premises of a senior public servant. The tenants had been employed as cleaners at your Honour's own home, and while you were unable to comment on their financial status, you were confident that they would be meticulously tidy tenants. Several months later, you received a call from the friend to say that the local council had found that the tenants were running an illegal brothel at those premises.
This is just one of the diverse characters that your Honour has come across. For example, your Honour acted for financiers of the movie, "Young Einstein." With hair that looked like it had been charged with an electric socket, and appearing at chambers either outrageously dressed or sporting a perfectly tailored suit and Macquarie Bank suitcase emblazoned with the words, "No cheques please," the star, Yahoo Serious, would cause quite a stir among clients and colleagues when he fronted at reception.
Your Honour's colleagues describe you as being a superbly analytic lawyer, business-like, very diligent and forthright, who will prosecute your client's interests to the maximum, but always remain realistic. These are characteristics that will no doubt serve your Honour on this bench for years to come.
It has been said that a child's character is pretty much formed by the age of seven years. Being the youngest of six children undoubtedly had an impact on your Honour's early verbal and negotiating skills. Education was a key priority for your late parents, who themselves left school at an early age. Your Honour attended, as we have heard, St Francis Xavier Primary School, and later Monte Sant' Angelo, which has had a lasting influence on you by virtue of the independent minded teachers, who valued and encouraged questioning minds, particularly your history teacher, Mother Bernard.
There was no professional legal family background to give you a head start in the career ladder, but you have excelled in every step of the way. As Chair of the Law Council's Business Law Section, your Honour helped build relationships between the state and territory law societies, particularly the Law Society of New South Wales and the Law Institute of Victoria. On one occasion, when both presidents of those institutions accompanied your Honour to a bar leader's conference in Amsterdam, I am told there was time for a familiarisation tour of some of that city's notorious nightlife district. Such a thing, of course, would not happen in 2012. That same year, your Honour was a keynote speaker at the New South Wales Supreme Court credit crunch and the law conference, which was co-hosted with the New South Wales Law Society.
Your Honour's love and appreciation of classical music has also been referred to today. Can I add, for the record, the piece of trivia that today, I think, is Mozart's birthday, so two careers obviously starting on 5 December is a wonderful thing. Among your colleagues, there is a general consensus that what your Honour will miss most in your new role will be the Takeovers aspect. Your Honour has invested a significant part of your career in public company takeovers, and found your time as a member and president of the Takeovers Panel to be incredibly rewarding. Your Honour, on behalf of the solicitors of New South Wales, I trust life on the bench will bring you new challenges and fulfilment. If the court pleases.
KEANE CJ: Thank you, Mr Dowd. Justice Farrell.
FARRELL J: Attorney-General, your Honours, and former justices of this and the other courts represented here, my family, friends and colleagues. Thank you for attending today to formalise and celebrate my appointment as a judge of this honourable court. As has already been mentioned a couple of times, it is a day strangely resonant of beginnings and endings.
Chief Justice Keane, congratulations on your elevation to the High Court. The only bad thing about that is that I will not get to work with you.
Chief Justice Designate Allsop, congratulations on your appointment, and I do look forward to working with you again. The coincidence of the timings of our appointments demonstrates that you can run but not hide. I have been examining my conscience, and I don't think that there is anything from the time that we spent together at the University of Sydney or at Freehills, which would cause any problems, but if I'm wrong, I'm sure I didn't mean any offence that I gave and please accept my humble apologies!
And as has already been mentioned, today I am sworn in and Danielle, my niece, graduates. I hope, Danielle, that it is as great a day for you as it is for me.
Chief Justice Tom Bathurst has given the advice that swearing in speeches get boring when there are a litany of thank you's, so I will try to take his advice and the advice given to me by my nephew, John. John is currently studying Economics Law at the Australian National University. He told me that it is in the interests of law students that my judgments should be short and clear. That's probably even more true of swearing in speeches.
Except for the 20 months that I spent at the Australian Securities Commission, this is the first day since April 18, 1979 that I will have no association with the firm now known as Herbert Smith Freehills, but which will always be Freehills to me. It would be remiss of me not to acknowledge the splendid platform that Freehills has been for my career in the practice of law, in pursuing my interest in law reform, regulation and commerce.
Herbert Smith Freehills CEO, Gavin Bell, is here today, and I ask him, as the firm's representative, to accept my gratitude for the opportunities and the vast experience that was given to me as a result of my association with Freehills. I also acknowledge the presence of a number of former managing partners of the firm, who were instrumental in giving me access to so many opportunities, and I acknowledge the presence of very many friends and colleagues from the firm, who have been with me through its development from a Sydney based firm, to a national firm, to an international firm, and I wish it every success in the future.
A number of the things that I planned to talk about have already been touched on, so in the interests of time, I will try to truncate a few of them, but I do need to spend a little time with Kim Santow. It is wonderful that Kim's wife, Lee, is here. Kim is present in the room in very many ways.
I learned many things from Kim, especially in the first 12 months during which I actually sat in his office. Those things have guided me in the practice of law, and I have no doubt that they will stand me in good stead as a judge. I will mention just two things I learned from Kim.
The first is that humanity always matters, and no matter how much noise there might be around any issue, that has to be the touchstone. The second is that a thorough knowledge of the law in its principle, as well as its letter, is a firm platform which supports creativity and problem solving, not a straightjacket in which imagination is stifled.
In the tradition of great mentors, however, I learned not only from Kim's positive attributes but also from some of his more negative ones. Kim had a habit of mentioning names in his speeches. The problem with that is that inevitably someone is forgotten whose contribution should be acknowledged. Nevertheless, I will name some names, but the contribution of those not named, including the few people who have asked not to be named, is firmly in my mind, and I thank them.
The other thing that I will never emulate is Kim's habit when catching cabs of standing in the middle of the road and daring them to run him down. That might work if you're six feet four but not otherwise.
As a mergers and acquisitions partner at Freehills, I experienced a sometimes wild but always interesting ride, and especially during the 1980s. I will never forget the sound and the tremors that ran through the building at Broadway, where Fairfax printing presses resided, at 2 am one morning in 1985, as the heads of agreement for the sale of the Seven Network were signed, while a copy of the next day's Australian newspaper lay on the general manager's desk, correctly reporting the sale. Some journalists are not only accurate but prescient!
With the agreement of the firm, I left in 1992, as has already been mentioned, to become a "gamekeeper" at the Australian Securities Commission. It was at a time when Australia finally, and importantly, had a national corporate regulator, one of the signal achievements of that time. For me, as a lawyer who had dealt with regulators on a day-to-day basis, it was remarkable how different the perspective of working within a government framework was. Some of my former colleagues from the ASC are here, and I am glad that you could be part of today.
When I ventured back to Freehills, I was privileged to be involved in some of the matters that have already been mentioned, and I am delighted that many of the clients that I got to know at that time are also here today.
Freehills was generous in supporting me in pursuing roles which were not fee generating, and that was regarded by the firm and by me as an essential contribution to the profession.
The best examples are the roles with the Business Law Section. Through those roles, I have developed relationships with people across firms, and that capacity to form those relationships is incredibly important in this time of large law firms. Large law firms are big businesses and they also have incredibly impressive continuing legal education. That can promote the development of "house" views or siloed thinking. What the Corporations Committee and the Business Law Section does is allow colleagues, who would normally work on opposite sides of the fence, to operate on the same side of the fence, and that engenders a spirit of the profession in a way that it is very hard to replicate.
That professional ethos is very far removed from the popular television "LA Law" conception of legal practice. Instead colleagues from different firms work together to achieve better laws, not merely laws which advance the commercial interests of their clients. I think it needs to be mentioned, because it is so much more sexy to talk about the LA Law view of life when I believe that the spirit of the profession lives strongly still in the law firms.
I found in the BLS a great friend and mentor in Professor Bob Baxt, who is here today with his wonderful wife and partner in all things, Ruth. I know it is invidious to single out an individual in this context, but Bob's contribution to the BLS and to me has been great that it should be acknowledged. While Bob became a partner at Freehills, eventually, he began to play his role of mentor to me while he was a partner at Allens Arthur Robinson.
I also acknowledge Carol O'Sullivan, who is the section administrator, John Keeves, who is the Deputy Chair, and, of course, Frank O'Loughlin, who is the Chair of the Business Law Section here today. It is great to see you, as well as a number of the colleagues from the Section and the Committees. I must also acknowledge Dr Bob Austin (as he now likes to be addressed) who taught me company law at the University of Sydney and who remained an enthusiastic participant in the Corporations Committee meetings, even while he sat as a judge of the Supreme Court of New South Wales.
The BLS has also given me the opportunity to know very many of the judges of this court through working together with them to convene a number of the corporate law and litigation focussed conferences. My observation of the collegiality of the court was an important factor in my decision to accept appointment as a judge.
Through this collaboration, I came to know the Honourable Kevin Lindgren, who has been a kind and energetic guide through the appointment process, and I am delighted that he is here today. He is, to me, a model to be emulated, both as a person for his wide range of interests, kindness and energy, and in the way he performed his role as a judge of this court. Thank you, Kevin.
Freehills also gave me the freedom to act as a director of a number of public and private sector companies. This was at a time when it was a little bit of a challenge for law firms to permit its partners and staff to do so.
For those of us who are well versed in legal theory about the operation of companies, the direct experience of being a corporate decision-maker in companies of vastly different size and industries is both invaluable and instructive. It is so different from the perspective of advisor or academic. I am delighted to see here a number of my former board colleagues. I acknowledge, in particular, Mr Bob Dalziel, who has been a client, board colleague, and friend now for almost 20 years.
Last but no means least, Freehills allowed me to participate in the Takeovers Panel for over 10 years, and I acknowledge the presence here of Allan Bulman, who is director of the Panel, and Alan Shaw, who is counsel to the Panel. I am going to miss them both, and not least for their particular skills in drafting reasons! I am going to miss you a lot.
I am also going to miss the Panel members, some of whom are also here, and the Panel staff, who are in Melbourne. The Panel delivers effective market regulation and dispute resolution to the Australian community at very low cost, but there is a dividend for the panel members. There is great satisfaction in the process of working with experts from a range of disciplines and market experience to determine whether an application to the Panel reveals "unacceptable circumstances" and, if so, how that situation might be remedied.
Recognising all of that, one of the Panel members asked me last week why I would leave one of the best roles in the country, and Panel President truly is one of the best roles in the country, to become a judge. Would I not miss the flexibility and the commerciality of the Panel?
To quote the late and great Peter Hely, "My views are firm but never fixed."
I have had the privilege of involvement with the Panel for 12 years. Like Kim Santow, I consider that the application of the letter of the law and legal principle provide a flexible platform, not a straightjacket. While policy issues are less prominent in the work of the court than they are in the work of the Panel, the work of the court excites my interest and commitment, it is an essential ingredient of the civil society and so eminently worthwhile.
This appointment has already brought very many unexpected pleasures. Foremost is the warmth of the congratulations I have received from so many quarters. The most concrete expression of this is the generous gift of an abstract sculpture called "Deliberations", which now resides in my chambers. Thank you, Jenny Green, the sculptor of this wonderful piece, and her husband, John, who was a member of the Panel and a former colleague at Freehills, for their great generosity to me since the appointment was announced. I think they had almost more pleasure in it than I did, which was lovely to see.
Attorney-General and all of those who have supported me in my appointment as a judge of this court, thank you for the honour that you have bestowed on me. I will do all that I can to do you credit.
To my family, thank you for your love and support. I want to acknowledge, in particular, the next generation. My nephew, John, my niece, Danielle, my Godchildren, Emily and Hal, it is very important to me that you were able to be here today. It is a great shame that my parents, John and Nora Farrell, could not be here today. I think they would have been more than a little bit overawed, but my appointment is a tribute to their belief in education, even though they missed out on it themselves.
Attorney-General, Frank O'Loughlin, Jane Needham, and Justin Dowd, thank you for your words of welcome. I look forward to a constructive relationship with all branches of the profession in the next phase of my legal career.
To each of the judges of the court, I look forward to working with you in fellowship and sharing the load, which you are increasingly telling me about. Thank you for the warm welcome and generous offers of help that you have made. I appreciate both very much.
Chief Justice Bathurst and John, I fear that I have failed to follow your advice on this occasion. I promise to try to do better in the future.
KEANE CJ: Thank you, Justice Farrell. The court will now adjourn.