VIQ SOLUTIONS AUSTRALIA PTY LTD
ACN 008 711 877

T: 1800 AUSCRIPT (1800 287 274)         
E: clientservices@auscript.com.au           
W: www.auscript.com.au	

TRANSCRIPT OF PROCEEDINGS

O/N H-1801450

FEDERAL COURT OF AUSTRALIA

FAREWELL SITTING OF THE FULL COURT

FOR

THE HONOURABLE CHIEF JUSTICE ALLSOP AC

THE HONOURABLE JAMES ALLSOP AC, Chief Justice
THE HONOURABLE JUSTICE RANGIAH 
THE HONOURABLE JUSTICE DERRINGTON 
THE HONOURABLE JUSTICE THOMAS 
THE HONOURABLE JUSTICE DERRINGTON AM
THE HONOURABLE JUSTICE MEAGHER

BRISBANE

9.30 AM, FRIDAY, 17 MARCH 2023
ALLSOP CJ:   Welcome, everyone, to this sitting of the Court.  As I will explain a little more fully in a moment, this is not a ceremonial sitting of the Court to mark my retirement, though I am retiring and there will be a ceremonial sitting later in Sydney.  I could not leave the Court without properly and publicly thanking the profession, the Chief Justice and Justices of the Supreme Court, and Judges of the Federal Circuit and Family Court, and my present and former colleagues for all their help and friendship over the last 10 years in the presence of their local profession.  

I first acknowledge the traditional custodians of the land on which we meet today, and pay my respects to their elders past, present and emerging.  

Thank you all for coming.  You do the Court honour by doing so, and I appreciate it very much.  Before saying something more of who is sitting and who is here today, let me explain my first remarks.  I thought it might be overly both ambitious and ostentatious to have ceremonial sittings all around the country, a bit like the last Rolling Stones tour or something like that.  So I decided to have the ceremonial sitting in Sydney and have a function for the profession in each city.  

I told my oldest friend on the Court, the indomitable Justice Besanko, this.  And he gave me one of his Besanko looks, which was simply to stare at me for 5 to 10 seconds and nod.  I said, “It might look like one long drink, then”.  And he said “Well, it might”, he said, “but I thought the South Australian profession might like to say goodbye to you.”  And I realised that that was important.  

Sitting with me today are some, but not all, of my Brisbane colleagues.  Justice Rangiah, Justice Roger Derrington, Justice Thomas, Justice Sarah Derrington, and Justice Meagher.  Unfortunately, Justices Collier and Logan cannot be here because of their Papua New Guinea duties, and Justice Downes is sitting in Sydney.  I am sorry that they cannot be here.  I acknowledge the presence today here of Justice Edelman of the High Court and his partner, Sarah Percy; the Honourable Patrick Keane AC KC, my predecessor as Chief Justice and, of course, former Justice of the High Court; Chief Justice Bowskill and Judges of the Supreme Court;  Justice Boddice, Justice Davis, Justice Ryan, Justice Hooper, Justice Hindman, Justice Sullivan and Acting Justice Gotterson.  And Justices Baumann and Howard of the Federal Circuit and Family Court of Australia, Chief Justice Sweeney of Tuvalu, and Judges Vasta and Tonkin of the Federal Circuit and Family Court of Australia.  My former colleagues:  the Honourable John Dowsett AM KC, the President of the National Native Tribunal;  the Honourable Doug Drummond KC;  the Honourable Andrew Greenwood and his wife Ulla;  and the Honourable John Reeves KC.  The Deputy President of the Administrative Appeals Tribunal, Bernard McCabe;  and members of the Law Council, Law Society and members of the Bar.  May I also welcome my dear aunt, Valerie Allsop;  and cousin, Susan Allsop.  

May I first thank the profession.  I begin with the profession because of its importance to the administration of justice.  There is a natural harmony and 
symmetry between the profession of a State and its admitting Supreme Court.  On the other hand, there is a certain asymmetry between a national Court and the State profession.  That asymmetry, perhaps, can sometimes inspire a weaker sense of association or relationship.  But I think that is natural.  That is so because a system of federation places upon and demands of its citizens a duality of consciousness, State and National.  But may I say, as I hope you all understand, this is your Court and we view you as our profession as it is the Court of the profession of other States and territories and of the Australian polity and people as a whole.  

The central place of an independent and learned profession in the administration of justice cannot be overlooked.  The independence of the judiciary as a functioning third arm of government cannot be healthy and robust without an independent profession with an independent cast of mind.  A cast of mind of duty and freedom of influence from the power of others.  These are not considerations to justify protection of the profession from scrutiny and criticism.  They are considerations that give rise to the demands by the courts of the profession for lifelong learning, duties of unremitting honesty and service shaped by the undivided loyalty to the client, but within the framework of duty to the Court.  To paraphrase the great Cardozo, not the morals of the marketplace being mere honesty alone, but the punctilio of an honour the most sensitive.  

The power of an executive government, the power of wealth and privilege, and the power of popular sentiment and opinion, cannot be faced effectively the Courts without an independent and learned profession to stock its numbers and to assist in its deliberations by fearless advocacy.  One day, perhaps, though only when the need arises, the profession’s essential place in the functioning independence of the Courts will be recognised, just as the Supreme Court’s place has been in the Constitution in Kirk’s case.  Since I became a Judge in 2001, I have always received, and seen the Court receive, the highest standards of assistance from the profession in this State.  For this, I wish to express my gratitude, and the gratitude of the Court to the profession of this State.  

May I turn to the Supreme Court.  I would first like to thank Chief Justice Bowskill and President Mullins AO and their predecessors and all the Judges of the Court of Appeal and the Supreme Court for their friendship, collegiality and cooperation in my time as Chief Justice.  I very much appreciate it.  

The overlapping political and social organisation of a federated nation requires that difference in unity and local and national in an integrated judicial system, be reconciled and worked through in a daily process of mutual respect, friendship, collegiality and a proper rejection of institutional hubris which must be drawn from the essential humility we must display.  That essential humility is demanded not least by the recognition of the talent of others.  Whilst regular meetings of the Council of Chief Justices of Australia and New Zealand are an important feature in this regard, they are buttressed by the respectful, harmonious and collegiate relationships amongst the Judges of the State, Territory and Federal Courts.

Such, of course, should be assumed as natural, but that does not mean that such should not be remarked upon and be the subject of expressed thanks on an appropriate occasion such as this.  It does not merely reflect good, professional manners amongst colleagues.  This feature is a feature, indeed, it is a demand of the Constitutional reality of an integrated Federal, that is, State and Commonwealth judiciary.  It is the duty of Judges from all qualities to give unsparing respect and support to each other.  This was the vision of the first Chief Justice of the Court, Sir Nigel Bowen, whose intellect, calm patience, grace and tact stamped the Court with a character it has not lost.  

One of the calm patience, one of politeness, an intellectual force and practicality taking its place in an integrated national judicial system with strong and collegiate Supreme Courts.  That Sir Nigel’s vision has come to pass after early tribulation is a tribute to the same qualities of patience, grace and tact of later Chief Justice, State and Federal, including Chief Justices such as Chief Justice Bowskill and Holmes for which I thank them today personally and publicly.  May I also thank the Judges of the Federal Circuit and Family Court of Australia for their collegiality and friendship shown over my time as Chief Justice.  

The growth of new Court structures is not easy, but the Court in its divisions serves the nation with distinction especially in its fundamentally important subject areas though not exclusively these of family law, bankruptcy, employment and industrial relations and migration.  

May I turn to my colleagues and former colleagues.  First, former colleagues here.  The Honourable John Dowsett and I fought some battles at Judges’ meetings before 2008, generally, as I recall it, over asserted shortfalls in library allocations to the Queensland Library.  However, when I returned to the Court in 2013 he welcomed me with a Queensland warmth and strength of support, strong guidance that was indispensible to me and which I will never forget.  I could not have done what was done without him especially in the early years in difficult times, and not just for the Court.  I appreciate it very much now and appreciated it very much then.  Without him the creation of a coherent national organisation of the Court with an electronic Court file would not have been possible.  This is not to downgrade in any way his astonishing diligence, intellect and great skill as a wonderful Judge in the Court.  I will never forget his interposition of view at a lively, if not tense, meeting of all the Judges in Melbourne in August 2014 to consider and, if appropriate, approve the then styled National Court Framework that was to be put to the Judges.  

It was a framework to increase a harmonious national, that is, continental operation of the Court, and to leverage the great skill and strengths of the Courts and its Judges in its great national specialties made the core of the Court’s work by Wakim.  There was a certain tension from a small section south of the Murray at him back of the room.  Some courteous but direct language had been exchanged.  John Dowsett put an end to this by rising to his feet and saying that this was a plan for a national Court which should be supported.  That was it.  The day was won, and the unanimous vote 
of the Judges approved the arrangement.  I hope the Court has been able to repay his support and faith in his colleagues.  

My first encounter with the Honourable Doug Drummond was also a somewhat direct engagement.  I was counsel in a losing appeal before him and two colleagues.  I was complaining of the terms of the orders by which I had lost.  We both knew that the orders would be subject of a special leave application.  But later, working with him was something quite different.  I was guided and helped by him in my first appeal which was a gruelling five-day exercise sitting with the wonderful John Mansfield.  They let me prepare a first draft, and with great courtesy after making important corrections and changes, allowed me to publish it with two concurrences.  He was also instrumental in allocating to me two marvellous Native Title cases for consent determination in Far North Queensland, the, western and eastern Yalanji peoples.  He was always kind and a generous colleague for which I will never forget.  

The Honourable Justice Andrew Greenwood as the senior Judge after John Dowsett left contributed hugely and importantly to the development and strengthening of the National Framework of the Court.  I always appreciated his insightful and direct expression of views even when we did not always agree entirely.  He was always true to the necessary theme of the Federal organisation such as the Federal Court.  That theme, which was a precondition of John Dowsett’s support for the National Court Framework when I saw him first, was that it is a national Court, and it is important that Sydney and Melbourne are not running the joint.  I do hope that we have lived up to this.  Former Justice Greenwood, Andrew, thank you for your friendship and support over the years, your experience, your great quality as a lawyer and Judge and, in particular, your support over the difficult COVID years.  

The Honourable John Reeves was a quiet, patient and thoughtful colleague with deep judicial experience and a willingness always to help with advice and hard work.  Thank you, in particular, for your friendship and wisdom and, most particularly, in the difficult and hugely important areas of the Operations and Finance committee.  My current colleagues have always given me the greatest support and friendship.  

It is a wonderful registry.  It is marked by a practical attention to the precision of the judicial task which can be seen in the work of all in the Registry.  And I thank them each individually and sincerely for the hard work and support over the years.  I recall the last time Justice Rangiah spoke when I was on the bench.  I had a detached retina floating in my left eye.  Nothing so serious today, just the non-infectious aftermath of a cold.

The almost 22 years that the Commonwealth and the State of New South Wales have given me as a Judge have provided me with the opportunity to think about and experience law and justice in a way and from a mode of attention that one does not experience fully in practice.  That is, that the law is justice, that law is to be experienced not only by reducing ideas through abstract taxonomical arrangement to 
rules and principles, but also by recognising the human realities of experience within the law, and that law is concerned primarily with power and its limits, and the protection of the individual, of the community, and of a just, democratic society.  

Power is not just abstract.  It is real and human.  Its affects, sometimes destroys people.  So the principles concerning it must include a demand on those who wield it to recognise the human effect of the exercise of it.  That is to be reworked into legal principle, but to exclude it as a legally related proposition is to court injustice.  That law is or can be seen as justice and not abstractedly separate from it in some reductionist-defined way comes from the recognition of deep human values that reside within the common law and in equity in which the Constitution is embedded.  

Such values are derived from human exchange and experience, from the rejection of unfairness, from the dignity of the individual and the group, from the urge in humans for the requisite degree of certainty, for the context and purpose at hand, and from human decency borne of basal kindness and mercy.  One lives these ideas and the physical reality of their experience in the daily work of the Court:  the migration work, the Native Title, the bankruptcy, the employment and industrial relations.  Indeed, even the commercial and regulatory work and constitutional problems and statutory construction.  To a greater or lesser extent in all the Court’s work.  This is so because these deep human values and their sources comprise the human tissue of the law which envelops, saturates and binds abstract ideas, rules and principles otherwise expressed in bald text with all the power of text, but with all the limitations of text.  

Courts are places where catastrophic experiences take place for litigants every day.  That is the nature of the potential harm bound in the results of every case.  Potential catastrophe is inextricably bound with the humiliation of powerlessness from being cast into the hands of others, cast into the hands of lawyers and judges.  The judges and former judges of this Court taught me all this, for which I will always be profoundly grateful.  

Mr O’Brien, President of the Queensland Bar Association

MR D. O’BRIEN KC:   May it please the Court.  It is an honour to speak on behalf of the barristers of Queensland to thank your Honour for service to this Court as Chief Justice over the last 10 years, and for your contributions more generally to the legal community, and to this State and this country.  Your Honour’s career is well-known.  Your Honour established a reputation as a highly skilled advocate at the Bar, with a particular expertise in commercial and administrative law.  

Your Honour quickly took silk in 1994, and in 1995, you started what would be a long and distinguished career of public service by accepting an appointment as a part-time Commissioner for the Australian Law Reform Commission from 1995 to 1998.  In 2001, you were appointed as a member of this Court, where you heard matters at trial and on appeal in the full gamut of matters over which this Court has jurisdiction.  In 2008, you were appointed President of the New South Wales Court of Appeal from 2008 until returning to this Court as Chief Justice in 2013.  

Your Honour’s 10 years as Chief Justice of this Court saw the Court undergo significant reform through the successful implementation of the National Court Framework, an initiative aimed at reinvigorating this Court’s approach to case management  by further modernising the Court’s operations so that it was better placed to meet the demands of litigants, and to operate as a truly national and international Court.  

Some of the key reforms implemented by your Honour under the National Court Framework included the introduction of national practice areas to foster consistent national practice and the utilisation of specialised judicial and registrar skills, the centralised allocation of judicial matters through a docket system, national practice notes setting out the Court’s case management principles and the procedures in the various national practice areas, and a national duty system, including the creation of commercial and corporations national practice area duty judge systems, as well as specialised assistance for self-represented litigants. 

All of these reforms implemented under your stewardship as Chief Justice have simplified practice and procedure, and improved efficiency in, and access to, the Court for litigants.  As Chief Justice and leader of this Court, your Honour has earned a reputation as a thoughtful and highly respected jurist, with a deep commitment to the rule of law and to ensuring the fair and impartial administration of justice in Australia.  This has been apparent from the way in which your Honour has led this Court, as well as the way in which your Honour has presided over cases, both at first instance and on appeal, many of which were high profile cases in areas as diverse as migration, human rights and corporate governance.

Outside of the Court, your Honour has been a tremendous support to the Bar Association of Queensland and the Australian Bar Association.  In particular, the assistance you have provided by attending and making Courts available for our advocacy training courses.  Your Honour, throughout your career, you have stood out for your rigorous intellect, your unwavering commitment to the rule of law, and your dedication to public service.  You have played a critical role ins shaping the legal landscape in Australia as we know it now.  The Bar Association of Queensland and its members thank you sincerely for your service to this Court and to the community.  We wish you and your family all the best for the future.  May it please the Court.

ALLSOP CJ:   Thank you, Mr O’Brien.  Mr Solicitor, I did not acknowledge your presence.  Thank you for coming.  I should have.  Ms Kopilovic.

MS C. KOPILOVIC:   May it please the Court.  It is a privilege to be able to speak briefly on this occasion to say farewell and acknowledge your Honour’s outstanding judicial career.  Your Honour has held judicial roles at the highest level in Federal and State jurisdictions, and thought deeply about what it is to be a judge.  Guided by your respect for the great American jurist Benjamin Cardozo – and I note your Honour has quoted him this morning – you imparted the following almost poetic assessment to the PNG Bench and Bar late last year, which should be mandatory reading for any student of the law:

Judicial power cannot be defined, but it can be articulated.  When wielded or deployed, it is felt emotionally and physically.  At the sentence of a person, at the pronouncement of the order of custody, at the sequestration of property, at the judgment for money that may presage ruin.  These deeply moving, and sometimes indeed harmful, acts must come from persons or forms that are disinterested, fair, decent, human in character and appearance, yet aloof and abstracted to a degree.  Trusted and respected in wisdom and learning with a recognition that they act selflessly, charged as manifestations of just State power, though with humanity that necessarily involves the possibility of human failing.  Such people, as agents of the State, are to be free of partisan considerations, anger or love:  hence the judicial oath – without fear or favour, affection or ill will.  That is the importance of the judicial oath and of the concepting, understanding and reliance upon any independent judiciary.

Your Honour has lived that assessment.  At your Honour’s Brisbane welcome to this Court in 2013, aside from the presentation of a maroon sports jersey by the Bar, my predecessor remarked about the profession’s profoundest admiration for your contribution to the profession, your legal intellect and the humanitarian way you apply it.  In the 10 years between then and now, your Honour has only reinforced the aptness of that observation.  Chief Justice, during the course of your Honour’s multifaceted career we, Queenslanders,  look with fondness upon the time you spent your teaching your beloved maritime law part time at our very own University of Queensland.  

Indeed, your love of the law of the sea has earned your Honour epithets and admiration from the profession, no less for being able to draw upon the proper distinction between contracts of bottomry and respondentia.  We trust that in your retirement this love of the sea and all its law may continue.  Your Honour has frequently engaged with the Queensland Law Society, and we are especially grateful to your Honour for supporting the QLS Symposium over the years and updating the profession with knowledge and skills.  Your Honour has even joined with our ADR committee for discussion of the benefits of a dispute resolution hub, and the Court’s interest in opportunities for the expansive resolution of disputes.  

The amicable and predicable resolution of disputes in our local pacific region remains a topic upon which Queensland lawyers have much to contribute, and we remain grateful for your Honour’s wisdom and guidance.  In every respect, your Honour has uplifted the Court by your service to the people and Commonwealth and, indeed, uplifted each Court you have served in.  On behalf of the solicitors of Queensland, I wish your Honour all the best for the adventures advantage that lay before you.  May it please the Court.  

ALLSOP CJ:   Thank you, Ms Kopilovic.  Justice Rangiah.

RANGIAH J:   The retirement of our Chief Justice is a sad occasion for the Court, but this ceremony provides an opportunity for the Queensland Judges to reflect upon his leadership of the Court over the last 10 years and his impact and legacy.  
Unfortunately, Justices, Collier, Logan and Downes have been unable to attend because of commitments interstate or overseas.  They would very much have liked to have been here.  

Chief Justice Allsop has led the Court at a time of great change and transition.  These changes have been technological, cultural and generational.  

An important aspect of the Court’s transition has involved technological change.  The Court transitioned in 2014 from paper-based files to an electronic file system.  That transition was completed under the Chief Justice’s stewardship although it had commenced earlier.  The Chief Justice’s willingness to embrace that change and guide the Court through it has produced outstanding long-term results.  Any member of the legal profession and the Court staff will recognise the tremendous efficiencies that have been achieved.  That transition required vision and foresight.  

The prescience of the Chief Justice’s embrace of technological change was realised in 2020 during the COVID-19 pandemic.  His leadership of the Court during that difficult period was exemplary.  While many Courts were struggling because of paper-based filing systems and the need for in-person hearings, the Federal Court was able to continue its work substantially uninterrupted because of its adoption of the electronic file system and video technology. Given the transnational nature of the Federal Court’s jurisdiction and difficulties with interstate travel, that would not have been possible without the technological changes led by the Chief Justice.  

The Chief Justice has overseen a cultural shift in the Federal Court transforming it into a truly national Court.  There is a delicate balance between the national character of the Court and its legislative model involving separate State-based registries.  The Chief Justice has introduced measures to make it a more national rather than State-based Court including by creating a single centralised National Operations Registry, establishing nine practice areas and promoting Judges working nationally within those practice areas rather than just within their particular State.  The channelling of Judges into particular practice areas has also seen a significant degree of specialisation, mirroring changes that have occurred within the legal profession.  

There has been tremendous generational change within the Court during the Chief Justice’s term.  For example, since the beginning COVID-19 there have been 16 retirements and 16 new Judges appointed.  This represents a turnover of more than 25 per cent in just the last three years alone.  The retirements have generally resulted in the replacement of Judges aged about 70 with Judges aged, perhaps, 20 to 25 years younger.  The Chief Justice has overseen the Court at a time of great generational as well as cultural change.  

On a more personal level, I can say that the Chief Justice has been unhesitatingly supportive of the Judges when we have needed support.  He has been a fiercely loyal supporter of all of us.  Justices Collier and Logan particularly wanted me to mention his support for their important work as Judges of the National and Supreme Courts of Papua New Guinea.  

Finally, Chief Justice Allsop has been the undoubted intellectual leader of the Court.  He is a brilliant Judge, and it has been a privilege to serve on the Court with him.  

Chief Justice, you will be greatly missed by all of us.

ALLSOP CJ:   Thank you, Justice Rangiah.  Thank you all for coming.  I very much appreciate it, very deeply appreciate it.  The Court will now adjourn

____________________