Address at the Perth Registry Ceremony to
Acknowledge the Retirement of Chief Justice Allsop
14 March 2023
The Hon Justice Katrina Banks-Smith

Chief Justice, Judges of this Court, Judges of the Court of Appeal and of the Supreme Court, Judges of other Courts and Tribunals, members of the profession and to all of you present today, it is an honour to have the opportunity on behalf of the Western Australian Judges of this Court, both former and present, to acknowledge your Honour’s contribution as the fourth Chief Justice of the Federal Court of Australia.

Time does not permit a comprehensive review of your Honour's 22 years of judicial service to the Australian community.  The fact that your Honour has served as both the President of the NSW Court of Appeal and as Chief Justice of this Court speaks for itself.

But I do want to acknowledge briefly your Honour's contribution to the jurisprudence of this country and your role in leading a cohesive court that operates across an extraordinary geographic span.

Your Honour's interest in the law is broad and deep.  You have continued to sit both at appellate level and first instance. You have promoted and enhanced the reputation of this Court as a commercial court. In particular, you have viewed ordered dispute resolution processes as underpinning efficient commerce.

Your Honour discussed the importance of this in Comandate Marine v Pan Australia Shipping, in the context of elections between arbitration and litigation. It is also apparent from your Honour's analysis of the content of a contractual requirement to negotiate in good faith in United Group Rail Service v Rail Corporation of NSW.

Your academic endeavour and scholarship is perhaps most apparent in some of your decisions in specialised areas such as arbitration, insurance and maritime law.

For example, in Gordian Runoff Limited v Westport, when on the New South Wales Court of Appeal, you examined closely the nature of an error of law by an arbitrator and the nature of arbitral reasons.

Your Honour's interest in maritime law stems from a deep understanding of the significance of international maritime transport, a method of transport that carries the dominant proportion of world trade.  Such trade cannot operate without a largely harmonious international system that recognises priorities and security interests.  In this context, in your lead judgment in the Ship Sam Hawk v Reiter Petroleum, you rejected an argument that a lien in rem over bunkers, or fuel supply, was recognised under Australian maritime law. In El Greco Australia v Mediterranean Shipping Co you comprehensively addressed the method of counting the number of units or packages in a shipping container for the purpose of limited liability for lost cargo. Your Honour's examination was subsequently discussed by the UK Court of Appeal on a number of occasions.

But it is not in the outcome of such cases that your Honour's contribution is to be recognised, but in the record your reasons provide of the history of the maritime lien, time charter, bills of lading and the nature of international maritime rights.

Your Honour's intellectual leadership has also extended deeply into the human rights work of this Court.

Your Honour's reasons in Hands v Minister of Immigration and Border Protection are cited regularly by counsel and the Court in highlighting the need for the proper consideration of what harm might befall a non-citizen if they are deported from Australia.  Your Honour emphasised that where decisions that might have devastating consequences for people are being made by those in power, there must be a real consideration of the circumstances - in your words 'confronting what is being done to people'.

Many years previously in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs your Honour did just that - where you considered in detail the Convention relating to the Status of Refugees done at Geneva in 1951, in seeking to ascertain how Australia's changing protection obligations to Hazara from Afghanistan were to be assessed in the face of escalating war in that country.

Your capacity for empathy was also apparent in some of your decisions on the New South Wales Court of Criminal Appeal – for example, your cris de couer (if I might respectfully use that expression) over mandatory minimum sentences for people smugglers in Karim v R and Magaming v R.  Your Honour observed that persons affected by such mandatory minimum sentences were often uneducated, illiterate and indigent, hailing from communities marked by disadvantage:  they were deck hands, with no involvement with the commercial or organisational level of smuggling.

I know that some of these decisions are the ones your Honour will reflect upon fondly over the years to come.

Your Honour has also shaped the internal workings of the Court by the significant introduction of National Practice Areas, focussed case management and specialised lists, including in the areas of insurance, corporations and bankruptcy.  Such an approach has encouraged collaborative involvement in management of the court's work by all judges and registrars.

Finally, I want to say something about your Honour's stewardship and the privilege it has been to serve on your Court.

Your Honour has always been accessible to the judges of the Perth registry.  Indeed you have given the impression of having considerable affection for Western Australia.  Sometimes we may have assumed we might be your favourite children.  You have visited regularly. During the COVID pandemic, when we were a somewhat more isolated outpost than usual, your Honour made a concerted effort to keep in touch with us by phone.

This is a collegiate court.  On the rare occasions when we are all together, there is palpable friendship, camaraderie and mutual support.  Your Honour has sought to provide pastoral care and taken that role seriously. Your judges speak highly of you. You have earned and enjoy the respect of all.  That is no mean feat, as we are not known for being shrinking violets.

And during it all your Honour has steadily reminded us of the effect of our exercise of power on people, groups and society more generally, and that it is essential to reflect always on the human reality of what we do.

On a lighter note, we have enjoyed your company and observing the delight you take from what others might assume to be mundane - in particular your interest in all things maritime.

I have the special pleasure of driving up our beautiful coast and past the Fremantle Port each day, seeing which cargo ships are in town and the bustling loading and unloading of cars and containers.  Whilst far from being a ship spotter, I reluctantly concede that I have identified a few favourites over the years.  Some have beautiful paint jobs. And some have aspirational names.  The day always starts well if overnight arrivals have included the Positive Leader, the Positive Challenger, the Victorious Ace or the Brilliant Ace.

Chief Justice, you have been our Positive Leader and our Brilliant Ace. We wish you, Sandy and your family well as you embark on this next stage.

I know that I speak for all of the Perth judges in thanking your Honour for your enormous contribution to this Court and the administration of justice in Australia.  We will continue to reflect on that contribution every day as we strive to deploy power in accordance with your example - with humility and humanity.