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TRANSCRIPT OF PROCEEDINGS

O/N H-1701791

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

TO WELCOME

THE HONOURABLE JUSTICE HELEN ROFE

THE HONOURABLE JAMES ALLSOP AO, Chief Justice
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE McELWAINE
THE HONOURABLE JUSTICE HESPE

MELBOURNE

9.30 AM, FRIDAY, 6 MAY 2022
ALLSOP CJ:   Welcome to this ceremonial sitting of the court to welcome Justice Rofe.  Sitting with Justice Rofe and I on the bench are Justice Kenny, Justice Greenwood, Justice Collier, Justice Bromberg, Justice Murphy, Justice Beach, Justice Markovic, Justice Moshinsky, Justice O’Callaghan, Justice Snaden, Justice Anderson, Justice McElwaine and Justice Hespe.  The travails of the pandemic and other contingencies have delayed this occasion.  Justice Rofe, you are now well entrenched in the court, the work of the court, after 10 months, but I hope today fulfils its important function for you, your family, the court and the profession as a public welcome and a celebration of your appointment.

I acknowledge the traditional custodians of the land on which we gather, the Wurundjeri Peoples of the Eastern Kulin Nation and pay my respects to their elders past, present and emerging.

May I acknowledge the presences here today of the Honourable Justices Gordon and Steward of the High Court, the Honourable Chief Justice Alstergren, of the Federal Circuit and Family Court, the Honourable Judge Baird, of that Court, the Honourable Neil Young QC, former Federal Court Judge and the Honourable Peter Almond QC, former Supreme Court Judge. Solicitor General of the Commonwealth of Australia Dr Stephen Donaghue QC and Solicitor General of Victoria Rowena Orr QC and Dr Matt Collins AM QC, President of the Australian Bar Association.  

May I warmly welcome friends and family of Justice Rofe, in particular, Justice Rofe, your mother Joan, your husband Rowan Gregory, your daughter Emma, your son Will, your mother-in-law Erica Gregory, your brothers-in-law Ross and Philip Gregory and your sister-in-law Liz Hickery and your cousin Angus Grimwade and Sir Andrew Grimwade and your many friends.  Justice Rofe, may I formally, as it were, welcome you to the court on behalf of all the judges of the court around the country.  May I also repeat what I said to you at your swearing in:  I hope your time on the court will be as happy as my time has been on this court.  It is a collegiate court of great warmth and talent, and I am confident you will enrich this court immeasurably in the coming years with your warmth and talent.

Ms McGowan, representing the Attorney-General for the Commonwealth.

MS N. McGOWAN:   May it please the court.  May I begin by acknowledging the traditional owners and custodians of the land on which we meant today, the peoples of the Kulin Nation.  I also pay my respects to their elders past and present.  It is a great privilege to be here today to congratulate your Honour on your appointment as a Justice of the Federal Court of Australia.  Your Honour’s appointment to the Federal Court of Australia is a reflection of your achievements in your legal career thus far and the high regard in which you are held by so many members of the Judiciary and Legal Profession that are here today.

May I also particularly knowledge Justices Steward and Gordon of the High Court of Australia, Chief Justice Alstergren of the Federal Circuit and Family Court of Australia, Judge Baird and Judge Mancini of the Federal Circuit and Family Court of Australia and all the members of the judiciary and legal profession who are here with us today.  May I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you, your husband Rowan, your daughter Emma and Son Will, your mother Joan, your mother-in-law Erica and brother-in-law Ross, your cousin Angus and Sir Andrew Grimwade.

Without listing all by name, I would also like to acknowledge other members of the extended family who are here today, along with your close friends.  Time does not permit me to outline the full catalogue of your Honour’s accomplishments;  therefore, I intend to speak just to a few of those qualities that have marked your career to date and which will inform the significant contribution you will make to this court.  Your Honour attended Firbank Grammar School and, due to your father’s position as Headmaster at Brighton Grammar, lived at Brighton Grammar’s Headmaster’s House.  I’m told that while being the daughter of the Headmaster of a boy’s school was challenging at times, your Honour excelled in school, particularly the sciences, in the orchestra and the hockey field.

Weekends and school holidays were spent on the family farm, Yellingbo, where your Honour rode horses, herded cattle, swam in the dams and built bush cubbies.  Your Honour also enjoyed creative pursuits, including drawing and playing musical instruments, especially the flute.  Your Honour completed a Bachelor of Science in 1988, followed by a Bachelor Laws and a Master of Laws, all at the University of Melbourne.  The majority of your time as a Solicitor was spent at Arthur Robinson Hedderwicks, which is now Allens.  As a Senior Associate at Arthur Robinson Hedderwicks, your Honour led a large team in a series of complicated patent matters for one of Australia’s largest resources companies.

These matters resulted in several proceedings in the Federal Court over a period of almost eight years.  A colleague from this time recalls these matters as highlighting your Honour’s ability to manage a team of Lawyers and technical experts to deal with the myriad issues arising in conflict litigation and smooth running of proceedings, abilities which I’m sure will stand your Honour in good stead on the Bench.  Your Honour finished at Arthur Robinson & Hedderwicks as Special Counsel in 2000 and moved to Blake Dawson Waldron, now Ashurst.  In this period, your Honour also found time to become a Registered Trademarks Attorney.

Your Honour was called to the Bar in 2001, and I’m told you arrived with a reputation as a diligent Intellectual Property Lawyer, which quickly led to a busy practice.  Your Honour was made Queen’s Counsel in November 2014, and you have appeared in a wide range of intellectual property matters, ranging from breach of confidence, trademark and design and copyright-infringement cases, through to the most complex patent cases.  Though a member of several organisations, your Honour has shown commitment and dedication to two organisations in particular for more than a decade, the first being the Intellectual Property Society of Australia and New Zealand, where your Honour spent a number of years on the management committee and three years as President, from 2008 – 2007, pardon, to 2009, the second being the Bolton Clark Human Resource and Ethics Committee, formerly the Royal
District Nursing Committee, where your Honour has been a member for over 10 years, demonstrating your dedication, empathy and compassion towards others.

Your Honour has also been described as generous with your time to juniors and to clients.  This is a clear example of your commitment to your specialisation of law and the principles of the Legal Profession.  In terms of personal qualities, your Honour has been described as showing a deliberate, thorough and systematic approach to issues since your teens, an approach that saw you successfully track down your lost car keys on a stretch of beach while on a coastal road trip at the age of 18 – I understand being stranded was the only alternative – an efficient and methodical response to what would otherwise be an overwhelming and stressful situation and is an invaluable instinct to bring to this court.

I also understand that your Honour has remained quite the outdoor and sports enthusiast, enjoying skiing, running, cycling and, where possible, swimming.  I’m informed that you can often be found running the Tan, training for the Great Ocean Road Half Marathon in Lorne or paddle boarding on the bay.  As a passionate skier, your Honour has always travelled extensively with your family on skiing holidays.  Your Honour will bring with you many attributes, including thoroughness, diligence and dedication which I have no doubt will serve you well on this court.  I extend to you my sincerest congratulations and welcome you to the Federal Court of Australia.  May it please the court.  

ALLSOP CJ:   Thank you, Ms McGowan.  Ms Annesley QC, President of the Victorian Bar Association and representing the Australian Bar Association.  

MS R. N. ANNESLEY QC:   May it please the court.  I appear on behalf of the Victorian Bar and on behalf of the Australian Bar Association to congratulate your Honour on your appointment as a judge of this court.  Your Honour brings to this court a depth of knowledge, expertise and passions that can only enrich the court.  Your colleagues at the bar, leaders and juniors alike, hold your Honour in the highest regard for your intellectual rigor, forensic skill and prodigious work ethic.  They speak with admiration and fondness of your Honour’s grace under pressure, fair and open mind and great sense of fun and enthusiasm.  Raised in Melbourne, your Honour was the only child of Robert and Joan Rofe.  

Your late father Robert, as we’ve heard, was the headmaster at Brighton Grammar School for 29 years, over which time he led the school with vision, compassion and dedication;  character traits and an approach to life and dealings with others which he has passed on to you.  Your Honour was educated at Firbank Grammar.  Firbank encourages its students to exercise their voice and form opinions.  It prides itself on offering a perfect balance of education and real life experience in order that its students can forge their own paths and success after school.  Firbank Grammar holds your Honour up as an exemplar to its current students.  Upon completion of your school, your Honour commenced studies at the University of Melbourne, as we’ve heard, graduating with a Bachelor of Science with a major in genetics and a major of Laws with Honours in 1992.  

Consistent with your Honour’s love of learning, your Honour undertook a Master of Laws which you completed in 1995.  Your Honour was admitted to legal practice in the Supreme Court of Victoria and the High Court in 1993 when scrunchies were fashionable and PalmPilots and brick-sized mobile phones were the highest of technology.  Your Honour commenced your career as a solicitor at Sly & Weigall before joining Arthur Robinson & Hedderwicks as Special Counsel in 1994.  As we have heard, after six years you moved across to Blake Dawson Waldron.  Your love of science and your ability to explain it clearly to the layperson led you naturally into the practice areas of intellectual property, technology, media and telecommunications.  

Your Honour was called to the bar in September of 2001.  Your Honour read with Bruce Caine QC.  You formed many friendships during your reader’s course, including with your good friends, Sarah Porritt and Lisa Hannon QC.  Notwithstanding that Sarah has known you for more than 20 years, shared chambers with you and had chambers on the same floor with you on the 16th floor for many years, she was unable – or unwilling – to divulge one amusing story about your Honour.  She claims it’s not because your Honour is not funny.  Indeed, your Honour’s boisterous, hearty laugh was often heard to ring across the 16th floor.  But she says really, you were just too good and too nice.  

In 2014 your Honour was appointed Senior Counsel and one of her Majesty’s counsel in 2015.  At the bar, your Honour specialised in science and technology matters, appearing in many major patent infringement and validity cases, breach of confidence, trademark, misleading and deceptive conduct, design and copyright matters.  Prior to your appointment you were regarded as a leader of the Australian patent bar and were one of the founding members of Emmerson Chambers, the first intellectual property specialist chambers at the bar.   Your clients include government and the corporate giants of the pharmaceutical, agricultural, mining and manufacturing industries.  

Highlights of your 20 year career at the bar included Ariosa Diagnostics v Sequenom, a case which tested the limits of patentability;  the long-running Sigma v Wyeth litigation, which resulted in the first assessment of damages on an undertaking for damages in the context of a pharmaceutical patent litigation and is regarded as having changed the landscape of patent litigation;  as well as Multigate Medical Devices v Braun and Pfizer Overseas Pharmaceuticals v Eli Lilly.  David Shavin QC, with whom you worked closely for many years, says he noticed a particular somewhat organic theme emerge in your IP cases.  First, you worked on matters with regard to the patent for Viagra, then on a case on the oral contraception Yasmin, followed by a case on anti-depressant medication.  

Joseph Tsalanidis, your Honour’s chambers neighbour for some 10 years, recalls that your Honour had a trophy shelf in your chambers, adorned with trinkets and curiositied from your IP cases.  It ensured that your Honour was never short of a conversation starter.  Formally, your Honour mentored two readers, Clare Cunliffe and Campbell Thompson.  And informally, you mentored many juniors, barristers 
and solicitors with whom you worked.  Clare Cunliffe describes your Honour as being the best mentor ever.  During her reading period, your Honour shared with Clare the sage advice that you had received from your mentor Bruce Caine, which was:  “When faced with a difficult case to always fly with the feathers you are given”.  When a case was really bad, your Honour expanded on this advice:  “Even if sometimes it’s more like a bald cockatoo than a mighty eagle”.  And when things were really, really bad, your Honour would simply send a picture of a bald cockatoo.  

Your Honour was a great contributor to the life of the bar.  Your Honour served as a member of bar council in 2019 and as Junior Vice President in 2020.  I had the privilege and pleasure of working with you on counsel on the executive in 2020.  Whilst it could be said that we had some tumultuous issues to deal with on bar council last year, taking an appointment to this court did seem like an extreme way of jumping ship.  You served as a member of the Health and Wellbeing Committee, the Equality and Diversity Committee and the Library Committee.  Your Honour was chair of List A from 2018 until your appointment.  Your Honour is now well-settled into this court in your new role as a judge.  If your Honour was hoping that the move to the court would expose you to more variety in the law, then so far the court seems to be living up to its expectations.  

In the short 10 months that you have been on the court, in addition to a staple diet of migration matters, your Honour has determined matters involving duck hunting, international kung-fu, YouTube and Google, no-fly zones for media outlets over lockdown in Melbourne, unvaccinated nurses and the Little River Band;  not necessarily all together.  Since joining the court, you have apparently continued your passion for mentoring and encouraging diversity.  Your Honour hates to miss a lunchtime judicial yoga session, even requiring your poor associates to attend on occasion.  

Lisa Hannon QC has described your Honour as supremely fit and healthy, much to the chagrin of your regular lunching companions.  Your Honour is a terrific runner – usually winning with your age group in the LIV fun run – former triathlete, keen paddleboarder and cyclist;  a passion you share with your husband Rowan and your children Emma and Will.  You have a longstanding connection with Lorne and you are renowned to go on long rides, often uphill, in any weather.  On behalf of the Victorian Bar and the Australian Bar Association, I wish your Honour a long, satisfying and distinguished service as a judge of this court.  May it please the court.  

ALLSOP CJ:   Thank you, Ms Annesley.  Ms Wolff, President of the Law Institute of Victoria and representing the Law Council of Australia.  

MS WOLFF:   May it please the court.  I appear on behalf of the Law Institute of Victoria and the solicitors of this state to welcome your Honour as a judge of the Federal Court of Australia.  I also appear speaking on behalf of the Law Council of Australia.  Unfortunately, the LCA President Tass Liveris was unable to attend today but he has asked me to send both his apologies and relay to the court his warm welcome and congratulations to your Honour.  We echo the Chief Justice’s 
acknowledge of the traditional custodians of the lands on which we gather, the Wurundjeri People of the Kulin Nations and we recognise their continuing connection to land, water and community and pay our deep respects to elders past, present and emerging, extend that respect to all Aboriginal and Torres Strait Islander people and to those who may be with us today.  

Your Honour, it’s a pleasure to welcome to this court a woman of great talent and achievement, a straight-shooting no-nonsense experienced practitioner who’s expected for, among other qualities, her cool and calm manner.  You’re a specialist in the law of intellectual property and widely praised for your skill in pulling apart the most complex technical issues and making them seem simple.  Like a number of your fellow judges, your Honour came to law through an abiding love of science.

You did straight sciences at the all-girls school Firbank Grammar, which was just a couple of blocks from your family’s home next to the all-boys school Brighton Grammar.  Your mother Joan, who is here today, had studied veterinary science in Sydney, and your late father, Robert, had been the Senior Master at Sydney Grammar until early 1967, when he was appointed Principal of Brighton Grammar.  Your father remained Principal, as we’ve heard, for an extraordinary 29 years, until his retirement in late 1995.  He had high expectations for the school, and he encouraged every boy to do his best with what he has got.

There is now a scholarship in his name, and Brighton Grammar’s creative arts centre is named in his honour.  Both your father and your mother encourage you to work hard and aim high, constantly emphasising that success would only come with commitment and perseverance.  On graduating from school in 1985, you enrolled in a science degree at Melbourne University, having just missed your first preference of veterinary science, hoping to follow, perhaps, in your mother’s footsteps, due to your abiding love of animals.  You attended Trinity College and met your future husband Rowan, who was studying engineering.

You and Rowan later married, in 1985, and you have two children, Emma and Will, and with that, we also extend a warm welcome to family and friends who are here today.  After realising, at the end of science, that you had no interest in doing laboratory research, you enrolled in the graduate program in law at the University of Sydney and then transferred back to the law school at Melbourne University for the final two years.  It was during that period that you first engaged with Intellectual Property Law, and it gripped your imagination.  There was a welter of new technology coming into use, driven by an increased use of computers and rapid advances in communications technology.

Profound advances were being made in biochemistry, in physics and communications, and your Honour became enthralled by the intersection of science and technology with the law.  A few years later, when you did a Master of Laws at Melbourne University, you then focused your thesis on that crossover of science and the law, on the possibility of patenting DNA sequencing from the human genome.  You commenced at articles at Sly & Weigall in 1992, where you were rotated 
through the four key areas of Commercial Law, construction, property and litigation.  Peter Larsen, who is now an in-house counsel with Rincon Mining, was one of the 12 article clerks of the firm that year.

He recalls your rapier-sharp intellect and warm, highly collegiate manner.  He particularly praises your Honour’s ability to simplify the most convoluted technical aspects and explain them meaningfully.  Indeed, your Honour’s interpretation of even the most mind-bendingly complex concepts seemed effortless.  It is that gift for direct, precise and clear communication that is referenced repeatedly by your Honour’s former colleagues and friends, and a credit to both your intellect and your work ethic.  It’s a trait that will be, no doubt, significantly appreciated in the intellectual property matters before this court.  Immediately after doing articles, you begin working in the Intellectual Property Division of Arthur Robinson & Hedderwicks, as it was then, and at Arthur Robs, a single case took up most of the next six years of your life.

This was the matter of the Wimmera Industrial Minerals against fellow mineral-sands producer RGC Minerals, as Wimm sought to protect what it claimed was its patent for the production of synthetic rutile.  The process involved removing radioactive materials such as uranium and thorium from ilmenite, which is used to make titanium dioxide.  The case was initiated in the Federal Court in mid-1994, while you and fellow lawyer Andrew Goatcher were both working under the renowned IP-litigation partner Richard Hamer at Arthur Robs.  Andrew, who is now at Wrays law firm, tells us your Honour was the brilliant and remarkably unflappable manager of the technical aspects of the case.

Andrew says it was his task to be the buzzing irritant who engaged in the relentless squabbling between the legal teams.  He would match your legal opponents at Allen Allen & Hemsley blow for blow with a stream of pointed and belated missives late on a Friday evening.  The Wimm matter evolved into a protracted, tough and hard-fought encounter, with several trips back and forth to the Federal Court for interlocutory orders and multiple applications for discovery.  It also required your Honour to fly quite often across the continent to conduct surprise inspections at RGC Minerals, Pharaohs Flat Deposit at Eneabba in the sandy coastal hinterland, 120 kilometres south of Geraldton, and then, after six long years, the matter settled.

We can only presume that there were wild celebrations by both legal teams, although apparently no one can recall your Honour getting rowdy.  Indeed, during our chats with the Legal Community, not a single story emerged that would be considered remotely embarrassing or out of order;  on the contrary, your Honour’s perennial reserve and calm character, your warmth and easy-going nature were the traits that came to the fore.  In 2000, you left Arthur Robs, when it merged with Allens, and joined Blake Dawson Waldron, as it was then, briefly, before leaving to do the Bar Readers’ Course, and as we have heard from the President of the Bar, you went on to pursue a successful career at the bar, taking silk in 2014.

In your downtime, your Honour is a keen cyclist, runner and swimmer.  You have completed triathlons, swum Pier to Pub at Lorne and regularly joined a group of friends to ride up the Dandenongs on the weekends.  Your friends describe you as not only very smart but inherently decent, fair, direct and talented, and someone they can readily call for and call on for advice.  On behalf of the Solicitors of this state, the Law Council of Australia, may you have a long, satisfying and distinguished career as a Judge of this court.  May it please the court.

ALLSOP CJ:   Thank you, Ms Wolff.  Justice Rofe.

ROFE J:   Thank you, Chief Justice.  I begin by acknowledging the Wurundjeri People, who are the traditional custodians of this land.  I pay respect to the elders both past and present of the Kulin Nation and extend that respect to other Indigenous Australians present.  Justices Gordon and Steward of the High Court, fellow judges, former judges, Solicitors General for the Commonwealth and Victoria, Tribunal Members, colleagues, friends and family, I am honoured and touched that you are here today.  I would particularly like to thank those of you who have travelled from interstate to be here and also those, in our post-COVID world, watching via livestream.

Thank you, Chief Justice, and my colleagues on this court.  You have all made me very welcome in the 10 months since I’ve started at this court, not just this Registry but the interstate Registries.  It has been a wonderful start.  Thank you.  It is a great honour and privilege to have been appointed to this court.  Thank you, Ms McGowan, Ms Annesley and Ms Wolf, for your generous and kind remarks, though I feel that some of my sporting achievements may have been a bit overblown in those speeches.  I must say how special it is to me to have three female leaders of the profession speaking today, two of whom are well known to me, and it is just fantastic to have three women at the bar table.

Ms Annesley, by speaking today, you have already doubled the number of women silks who have appeared before me since I started in July.  As I reflected in preparation for today, two words kept coming to mind:  gratitude and persistence, or possibly perseverance, from Ms Wolf.  Starting with gratitude, I’m very grateful that we are finally here today after two years of COVID lockdowns and the pandemic.  We had two attempts at a welcome which we had to cancel for various lockdowns, and I’m amazed that we’re actually here, and it is fantastic to be here and in person in the Federal Court.  I started with the court in July, shortly before lockdown 6.  I think it was lockdown 6.  They all blur together, as everyone in Victoria will appreciate, and it was an interesting way to begin, working from home but starting at the court.  Persistence – we are finally here and in person.

Gratitude to those who have eased my transition to the court.  I am in the unusual position of having a welcome 10 months after starting so there are a number of people in the court who have eased my transition and I would like to thank them.  Firstly, my associates, the brilliant Ms Sophy White and Ms Zoe Barker;  the CEO and Principal Registrar of the Federal Court, Ms Sia Lagos and her team;  the 
indispensable and invaluable Manny from IT, without whom none of us could survive;  and also Tony Middleton, who was my first associate who taught me well and trained me and Sophy and set up our chambers system.  Tony has just started his own career at the bar, signing the bar roll last night.  I hope he enjoys his time at the bar as much as I have.  

Gratitude to my parents for their unstinting love and support over the years.  My mother has made the trip in from Yellingbo this morning to be here.  At 92, that is no easy task, entailing a very early start.  I am very grateful that she has managed to be here today.  Sadly, my father is no longer with us but I know he would have loved every part of today.  Both my parents had a strong belief in education and the value of education.  Both were, as we’ve heard, graduates from the University of Sydney;   my father in economics and my mother in veterinary science.  Also as we’ve heard, they arrived in Brighton when my father became headmaster of Brighton Grammar School.  

My father was tall and some of my childhood memories are of him striding through the school with his academic gown flying out behind him.  I must confess, there are times when I wonder whether there was some conscious desire to stride about in flowing robes and that’s what drew me to the bar and now to the court.  My father would write out study timetables for me each week for secondary school, setting the subjects that I should work on and the times, but also including inspirational quotes and they were always written in his signature purple ink.  He would also give me confidence cards to take with me to read before exams.  Things like, “You are well-prepared.  You will do well”.  This continued through my university career, even when I was in Sydney.  

With the folly of youth, I didn’t keep the cards but I was delighted several years ago to open an old book from law school days and to find one of the cards.  Amongst the quotes, “Trust thyself.  Every heart vibrates to that iron string”.  A quote from Ralph Waldo Emerson.  That card is now laminated and sitting beside my desk at home.  It is lovely to have two Brighton Grammar old boys here today.  They were both close to Dad and they have kept in touch with the family and with Dad in his retirement so it’s lovely to have them here today.  My mother, she is a strong, independent woman and she was a trailblazer, studying veterinary science in the days when there were only a handful of women in the course.  

Then, she practiced as a vet in a very male-dominated area, both here and in the UK before practicing as a veterinary pathologist in New Zealand and Australia.  She kindled my interest in science.  I remember her wonderfully neat school biology notes with beautiful, intricate drawings of dissected frogs and leaf structures and other things.  And as we’ve heard, I spent all my holidays at Yellingbo and one of my favourite activities was horse-riding around the farm with my mother.  I still go out to the farm most weekends but these days I’m more likely to be riding a bike in the Dandenongs than a horse.  At 92, my mother still lives at the farm and she only recently stopped running her own cattle, including getting them in from the paddock 
and sorting them out in the yards.  She continues to be a great source of inspiration to me.

I am the first lawyer in my family and studying law after science came at the suggestion of my father, I think as a result of his fascination with the old carbolic smokeball case.  For those non-lawyers, in 1893, a UK Court of Appeal contract case that he had studied during his days in economics.  The carbolic smokeball was supposed to be a device to protect against influenza.  I can’t imagine it would ever have even got near the TGA to get approval these days and I am also surprised that someone didn’t try and relaunch it in the days of COVID.  It was advertised to protect against influenza and a £100 reward was offered to anyone who contracted influenza after using the ball and the question was whether that was an offer for the purposes of contract law if someone who contracted influenza sued them.  

I am also tremendously grateful to my husband Rowan, who has been a terrific supporter along the way and without whom I would probably not be sitting here.  He is not a lawyer.  As we’ve heard, he is an engineer.  He is a forensic engineer and that keeps me grounded.  He has also been very useful from time to time with the technology side of mechanical patent cases.  The one and only time he ever came to watch me in court, I was cross-examining a hot tub of mechanical engineers and one of them raised the issue of hoop stress for the first time in the joint session.  Rowan was able to help me put together a series of questions over lunch to deal with the issue of hoop stress.  It was quite an incredible coincidence he happened to be there that day.  

I am also grateful for our two children, Emma and Will.  Emma and her friends inspire me as they are confident, smart, no-nonsense girls who will stand up for themselves and who are capable of achieving anything to which they put their minds.  Will has, over the years, provided a useful source of cross-examination practice when I have been trying to find out what he was up to or what happened at school.  And now, a useful source for practice for assessing witness credibility as I try to work out which one of them to believe as to who started the fight.  His recent school biography project, which he did on me, turned out to be a useful source of information for one of the speeches today.  

I am also grateful to have my dear friend Celina, who I have known since I was four and we started prep.  She is not a lawyer and she is an industrial designer and she has had the odd IP problem over the years from time to time.  I am incredibly grateful for her friendship and support over the years and it is wonderful that she is here today.  My cousin Angus is also another great source of friendship and support.  I am also very grateful for all the wonderful people that I have met and worked with over my career in the law, many of whom have become good friends and are here today.  My fellow article clerks, my friends from IP, Arthur Robs and Blakes and from the bar.  I thank you all for your friendship and support over the various hiccups that life throws at one. 

Please, forgive me for not mentioning each one of you separately but I am so glad that you are all here today.  If I might just focus for a moment on my time at the bar.  When I announced I was going to the bar, I was warned by many non-barristers that it would be a very lonely, isolated experience; that everyone was a sole practitioner and effectively your competitor.  In reality, those dire warnings could not have been further from the truth.  I have found the bar to be collegiate and supportive.  I loved my time at the bar and I am grateful for the wonderful people that I have worked with and the good friends that I have made there.  There are four people who I must mention who have been outstanding mentors and friends and who have taught me so much during my time at the bar. 

I’m very fortunate to have been able to read with Bruce Caine QC.  I was his last reader and it was a wonderful reading period.  I was also very fortunate to work with David Shavin QC on many of the cases that we’ve heard, he was a wonderful leader and a good friend.  Peter Collinson QC I met when we were doing the Wimm litigation and he was Junior Counsel for our side.  He was responsible for convincing me that life was better as a barrister than a solicitor.  I will say, it was probably not difficult, given those nasty letters that we received every Friday evening from Allen’s.  Judge Baird, a wonderful mentor and friend since our days of the Viagra case.  And I am so glad and it is wonderful that Judge Baird was able to come down from Sydney today to be here.  And we’ve even managed to turn on a day with no rain.  

I was fortunate to do the reader’s course with a number of amazing women, all of whom are still at the bar, aside from Judge Robertson who is now at the County Court.  Outside the world of IP, I was lucky to come across so many other wonderful colleagues and friends.  My old floor, the 16th floor of Owen Dixon West; my all too brief time at Emmerson Chambers;  my two readers, Clare Cunliffe and Campbell Thompson;  the solicitors and patent attorneys that I worked with over the years;  IPSANZ and the IPSANZ committee and Ms Caroline Reznik, the secretariate;  the passionate members of the Equality and Diversity Committee and the equally passionate members of the Women Barrister’s Association;  my old List Committee, the Bar Council.  

My experience shows that it is certainly not true that the bar is an isolated place where you are on your own.  I am also grateful that there are so many talented and passionate barristers who volunteer their time to work on the various committees at the bar to make the practice of law and the bar better.  Now, to persistence.  I started in the law, also as we’ve heard, in 1992 as an article clerk, just as the 1990s recession hit.  At the time that I started in the law there were no women Supreme Court judges in Victoria and none in the Victorian Registry of the Federal Court.  Justice Kenny was still a few years away from being appointed to the Victorian Court of Appeal and then to this court.  

It was not many years after what I will call “the trousers incident” when a woman advocate came to court wearing trousers and the judge refused to hear her, no matter that her client had flown down from Sydney for the hearing.  As ridiculous as it might sound today, polka-dotted stockings and coloured stockings and the right to be 
addressed as “Ms” were battlegrounds for women lawyers in the 1980s.  It is extraordinary today to think that a person could be denied access to justice, their day in court and cause to incur substantial wasted cost simply because this female advocate was wearing a pair of trousers or coloured stockings.  There was not only the effect on the individual client but more broadly, the flow-on damage to the cause of briefing women to appear in the court.  

Why would clients and instructors take the risk that a judge might dislike the lady barrister’s apparel?  Much safer to brief a man.  Aside from sprinting up to the prothonotary’s office to file documents before 4 pm, my abiding memory of articles is one of the litigation partners would from time to time gather up the male article clerks and take them to lunch at the Savage Club.  The other female article clerk and I were of course not invited and there were no non-Savage Club lunches for the partners to which we were ever asked.  That was a powerful message of exclusion to a young, not yet admitted lawyer taking her first steps in the law with no family or connections in the profession.  That memory still evokes a visceral reaction in me to this day. 

Of course, things are better for women now, thanks in large part to the women lawyers who have fought those early battles and those who could see the benefits of equality and I am profoundly grateful for that.  I wear trousers today in court because I can.  And I do so in order to celebrate the women lawyers that have gone before me in the law, to show my gratitude to them for the persistence in fighting those battles.  Their persistence is paying off.  Women now hold leadership positions in many parts of the administration of justice in Australia.  The Chief Justices of the High Court and the Supreme Court of Victoria;  Rowena Orr QC, the Solicitor-General for Victoria and Kerri Judd QC, the Director Of Public Prosecutions in Victoria.  Ms Annesley QC at the bar table, the President of the Victorian Bar and Ms Wolff, also at the bar, table, the President of the Law Institute of Victoria.  

Over 50 per cent of the graduates from Australian law schools are female and that has been the case for many years.  A recent New South Wales Law Society report found that women made up 53 per cent of the solicitors practicing in Australia and that for the first time, female lawyers outnumber male lawyers in every state.  The numbers are also looking good in the patent attorney profession.  I saw that the recently elected executive of the Institute of Patent and Trademark Attorneys is entirely female.  One of them is here today, my good friend Jenny McEwan.  But before we get too carried away, things are not perfect.  In the 10 months since I have been at the court, I have had one female Senior Counsel appear before me; now two.  

There is still work to be done in encouraging the briefing of women for speaking roles in hard-fought, contested, serious commercial cases.  Persistence must be maintained.  I acknowledge that equality is not just about women and that things are worse when it comes to other areas of diversity.  This court is helping to increase diversity with its participation in the Victorian Bar’s Diversity and Indigenous Internship programs.  I would like to see more women appearing before me in this court more broadly, not just in pro bono roles in migration cases.  More than just 
women, I would like to see more Indigenous advocates and advocates from diverse backgrounds appearing and in speaking roles.  As I look around the courtroom, I realise that I am speaking to the converted.  I encourage you all to persist in your efforts to foster and support equality and diversity in the legal profession and more specifically to increase the diversity of the advocates appearing in this court.  Once again, I thank you all for coming.  I am humbled by your attendance today.  Thank you.  

ALLSOP CJ:   The court will now adjourn.

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