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TRANSCRIPT OF PROCEEDINGS

O/N H-1801437

FEDERAL COURT OF AUSTRALIA

FAREWELL SITTING FOR

THE HONOURABLE CHIEF JUSTICE ALLSOP AC

PRESIDING JUDGES:

THE HONOURABLE JAMES ALLSOP AC, Chief Justice
THE HONOURABLE JUSTICE McELWAINE

GUESTS OF THE BENCH:
THE HONOURABLE JUSTICE SHANE MARSHALL AM
THE HONOURABLE BOB BUCHANAN KC
THE HONOURABLE DUNCAN KERR SC, CHEV LH

HOBART

4.30 PM, FRIDAY, 3 FEBRUARY 2023
ALLSOP CJ:   First and importantly, I acknowledge the traditional custodians of the land on which we gather, and pay my respects to their Elders past, present and to acknowledge and recognise over 40,000 of Aboriginal heritage law and culture in this land.  

May I welcome you all to this sitting.  It is not a ceremonial sitting of the Court to mark my retirement from judicial office, that is pending.  Though, I am retiring from Office; and, there will be a ceremonial sitting in due course at the end of March in Sydney.  This sitting of the resident Judge, Justice McElwaine and I, together with former colleagues, Justice Marshall, and former Justices Buchannan and Kerr, is to allow me to thank, publicly, the legal profession, the Chief Justice and the Judges of the Supreme Court, and Judges of the Federal Circuit and Family Court, as well as my present and former colleagues, in the presence and company of their local profession.  

May I acknowledge the presence of the Chief Justice, Chief Justice Blow and Justice Wood of the Supreme Court, and Justice Marshall, of course, Judge Taglieri, the Solicitor-General, the Presidents of the Australian Bar Association and Law Society, Mr Zeeman and Ms Thompson, Mr Melick and Michelle, and others.  Thank you for coming.  

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 a State profession.  It can inspire a weaker sense of association and relationship.  However, a system of federation places upon, and demands of, its citizens, a duality of consciousness: State and National.  This is your Court.  And you are our profession. Just as the Court is of the Australian polity and for the Australian people and Australian profession.  

The central place of an independent and learned profession, in the administration of justice can be overlooked.  The independence of the judiciary, as a functioning third arm of government, cannot be healthy and robust without the profession having a cast of mind and an independence of means 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 the considerations that give rise to demands by the courts of the profession for lifelong learning, duties of unremitting honesty and service shaped by undivided loyalty to the client within the framework of the 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 executive government, of wealth and privilege, and of popular sentiment and opinion, cannot be faced effectively by Courts without an independent and learned profession to stock its numbers and to assist in its deliberations by fearless advocacy.  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, and in all States of the Commonwealth.  For this, I wish to express my thanks and gratitude and gratitude of the Court to this profession.  

May I turn to the Supreme Court, and the Federal Circuit and Family Court.  I would first like to thank Chief Justice Blow and all the Supreme Court Judges for their friendship, collegiality and cooperation in my time as Chief Justice.  I very much appreciate it.  I also wish to thank the Family and Federal Circuit Court Judges for their warm welcomes in Hobart at the times of my visits over the years.  

The overlapping political and social organisation of a federated nation requires that difference in unity and local and national, be reconciled and worked through, in a daily process of mutual respect, friendship, collegiality and a proper rejection of institutional hubris that should be drawn from an essential humility that we must display.  Whilst the regular meetings of the Chief Justices at the Council of Chief Justices of Australia and New Zealand are important in this regard, they are buttressed by the respectful, harmonious and collegiate relationships among the Judges of State 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.  

This does not merely reflect good professional manners among colleagues.  This is a feature that is part of the constitutional reality of an integrated Federal, that is State and Commonwealth, judiciary.  It is the duty of judges from all polities to give unsparing respect and support to each other.  That this is now an accepted and assumed feature of the Australian judicial system belies the reality that it was not always so in the early years of the court.  However, jealousies and rivalries passed, assisted in no small measure by the calm patience and grace and sophisticated tact of its first Chief Justice, Sir Nigel Bowen.  He stamped his vision for the court and how it should cooperate with State courts and the profession in the DNA of this institution.  And, in more recent decades, the same qualities of patience, grace and tact have been shown by later Chief Justices, Federal and State alike, such as by Chief Justice Blow, for which I thank him personally, but publicly, today.  

May I turn to colleagues?  One of the great gifts and privileges of the position of Chief Justice is the opportunity to work closely with some remarkable people.  I thank all my colleagues, present and past, for their dedication, hard work and friendship.  Here today are Justices McElwaine and Marshall, a former judge of the court and former Justices Buchanan and Kerr.  

Justice McElwaine, if I may respectfully say, is already making a significant contribution to the life and jurisprudence of the court, as did each of Marshall, Buchanan and Kerr JJ.  It has been a privilege to work with Justice McElwaine, just as it was a privilege to work with Justices Marshall, Buchanan and Kerr.  They all epitomise what Sir Gerard Brennan said of the Court’s work in a speech in 1977, that it was marked by scholarship, learning and practicality.  

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 not only to serve the people of Australia and New South Wales but also to think about and experience law and justice in a way and from a mode of attention that one does not experience in practice.  That is, that the law is justice and to think about and to experience law not only as ideas reduced by abstract thought and taxonomised arrangement to rules and principles, but also as emotional and human realities of experience concerned primarily with power and its limits and the protection of the individual, the community and a just democratic society.

That law is or can be seen as justice and not abstractedly separate in some reductionist-defined taxonomy comes from the recognition of deep human values that reside in the common law and in equity.  Such values are derived from human exchange and experience, from a 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 or purpose at hand and from human decency born of basal kindness and mercy.  These are the wellsprings of all that is valuable in the law and all that makes a judge, and all that shapes the control of, and permission for, power to be exercised in a democratic society.  One lives these ideas and the physical reality of their experience in the daily work of the Court: migration, native title, bankruptcy, employment, industrial relations, commercial and regulatory work, constitutional problems and statutory interpretation, to a greater or lesser degree 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 the abstract ideas, rules and principles otherwise expressed in bald text, with all bald text’s power, but also with all its limitations.  

This is not the occasion to thank all my family and all those close to me for all they have done for me.  I will do this in my Ceremonial Sitting.  But my partner, Sandy, is here today, and I wish to thank her for her love and support over the last six years in which I have been fortunate to be with her and to share my life with her.  

Mr Zeeman, President of the Tasmanian Bar Association.   

MR ZEEMAN:   Thank you, your Honour.  I too would like to acknowledge the Traditional Owners of the land, the Muwinina People, where we meet today and where justice is so wisely dispensed when this Court sits.  We acknowledge their Elders, past, present and emerging.  It gives me great pleasure, your Honour, to thank you publicly on behalf of the Tasmanian Bar for your service to the Court and to the administration of justice generally in your distinguished career.  As your Honour has pointed out, this is not a Ceremonial Sitting.  So I won’t bore you and others with transversing your career, but what I would like to do is to thank the Federal Court for reconciling what your Honour noted to be the local and national conflicts that need to be reconciled in the administration of justice in this State.  

Often, Tasmanians have felt, from time to time, that they have been omitted from the national map.  Famously, in the media, from time to time, but there have been times when this Court has not had a Tasmanian representative.  It is with great pleasure that since – well, our first members of the Court, Justice Everett, sat on the Court in the early eighties, and it was a period of 25 years, I think, before his Honour Justice Kerr was then appointed to the Court in May of 2012.  And we thank your Honour.  We assume your Honour made representations behind closed doors to ensure that a member of the Tasmanian profession remained a member of this Court, and it was with great pleasure that we had Justice McElwaine appointed to the Court in January 2022.

But that is not to say the absence of resident Judges in this State wasn’t – meant that this Court was not well served.  There have been many visiting Federal Court Judges that have come to this Court through the support of the Chief Justice.  And I don’t name them all, but one that we particularly adopted was the late Justice Heerey, Justice Marshall, Justice Middleton, who I note recently retired from the Court.  All of these people have given great service to the Tasmanian people and to the legal profession.  It is, perhaps, anecdotal that often sittings of the Federal Court were listed either on a Monday or a Friday.  Perhaps, the Judges may well have enjoyed the small trip down to Tasmania.  But we, as the Bar, have greatly appreciated that.  

And one matter which we need, as the Tasmanian profession, to do to thank the Court for its service is to continue to use the Court’s services.  I must say, your Honour, we’re slightly handicapped, because one of the more frequent filers in the Hobart registry now sits to your right.  So I need to encourage those members of the profession who practice as solicitors, to file more material to ensure that the Court has regular sittings in this jurisdiction.  I would also thank the Court for having Judges physically present in the jurisdiction.  As we’ve all passed through the COVID pandemic, the temptation may well have been to have sittings by Teams and a variety of other methods of communication, but we’re very pleased that the Court has not fallen into this and has continued to provide Judges when cases were to be heard in this jurisdiction, in person.

And I thank your Honour for that.  It is, perhaps, premature, and as your Honour noted, you are having a Ceremonial Sitting in some months time, and I suspect there will be many great things said about your Honour.  I had the pleasure of watching Justice Middleton’s retirement – Ceremonial Sitting, and I would imagine that when the Court convenes for your final sitting, that the Bars from all states will be present and show the gratitude that you hold.  And whilst your Honour has noted it’s not your Ceremonial Sitting, it would not be premature for me to wish you well in your future and, hopefully – and I suspect not – you won’t be lost to the law and that your judicial talents will be available to the profession, not only by – by providing us with papers and/or CLE which seems to be the bane of our lives, to ensure we get our professional points.  

But we have greatly benefited from Justice McElwaine’s embrace of providing that to the Tasmanian profession.  And, hopefully, we can see your Honour after retirement in Tasmania to provide us with some further encouragement.  Thank you, your Honour, and we wish you well.  

ALLSOP CJ:   Thank you.  Ms Thompson.  

MS THOMPSON:   Thank you, your Honour. May I firstly acknowledge the traditional owners of the land on which we meet today, the Muwinina people, and pay my respect to their elders past, present and emerging.  I appear on behalf of the law society and its 800 members to farewell your Honour as Chief Justice of the Federal Court of Australia.  Thank you, your Honour, for your insightful address.  Unfortunately, I have never had the opportunity to appear before you, and that’s something I regret.  I did take the pleasure of reading your ceremonial sitting back in 2013, and that seems like that was an extensive day, and you have had a very impressive career on both the bench and at the bar.  On behalf of the profession, we would like to thank you for your service both on the bench and as for the community as a whole, when you were acting as a practitioner.  

I’ve kept to your Honour’s brief today that you would like a short speech from me.  I’m sure that you will be surely missed by the profession, and on behalf of the law society and its members, we wish your Honour a long, happy and fulfilling life beyond the bench when you retire on 6 April.  May it please the court.  

ALLSOP CJ:   Thank you, Ms Thompson.  Justice McElwaine wanted to speak.  I hesitated. But I thought it would be wrong to refuse.  

McELWAINE J:   Chief Justice, I too acknowledge the traditional owners and custodians of the land of this State, and I pay my respects to their elders past, present and emerging.  I offer some observations as an insider.  As is well known, you have served the people of Australia as a Judge since 2001, and as a Judge of this Court between 2001 and 2008.  And then, as our Chief Justice since March 2013.  You are an outstanding jurist with a command of legal principle and aconfidence of expression in your judgments that some of us, myself included, are in awe of.  Your ability to balance the workload of a full docket with the administrative affairs of the Court as allocated by section 18A of the Act is testament to your prodigious capacity for hard work.  You do so without the assistance of a deputy Chief Justice or formal divisional heads.  

You enjoy universal respect and admiration from your judicial colleagues and the Court staff.  That is not only because you are a fine leader.  You are a very decent human, one always available to counsel and offer support personally or professionally.  It is a reflection of your deep and abiding respect for the value of each individual who contributes to the efficient administration of justice in this Court.  Now, monitoring the docket’s workload of 53 Judges in six registries, accommodating individual requests and ensuring the smooth functioning of the Court is a very large task which requires constant attention.  I have thought it must be akin to herding cats at time.  Few people are capable of such an organisational task, and it is one that you attend to with attention to detail and you perform it calmly and professionally.  

Of course, there is more to the responsibilities of the leader of this Court.  One must deal with the Executive branch, attend meetings with Chief Justices, swear in new Judges and bid farewell to others, attend functions, sit on numerous committees and engage in public education and speaking.  In the latter respect, the Court intranet biography of speeches, which is maintained, commences with your first in April 2005 – the topic being Expert Material and Evidence in Patent and Trademark Matters in the Office and on “Appeal”, and concludes with an address given, somewhat appropriately, in November last year, to the bench and bar dinner in Port Moresby, with the title Being a Judge.  There are 68 in all.  I am certain that there are more unpublished ones.  The range of topics is diverse, reflecting your deep learning and experience.  As a small sample, they include Statues and Equity, the Foundations of Administrative Law, the Intersection of Companies and Trust, and one with a particularly exotic title:  Rules and Values in Law, Greek Philosophy, the Limits of Text, Restitution and Neuroscience, Anything in Common?  

I tried to read that paper today to inform myself as to what you really meant, but we’ve been interrupted.  We all look forward to a book of selective speeches and papers that will inevitably be published following your retirement in Sydney in March this year, which will mark the last performance of your national farewell tour, which commences today in Hobart.  In January 2023 – not a holiday, but during the court non-sitting period – when most of your colleagues were not in chambers, I noticed that you were busy as early as 6 January and allocating another round of single Judge migration appeals.  I received my allocation while skiing in Niseko.  What is probably not appreciated outside of the court is that you personally consider all docket allocations for every Judge.  

Chief Justice, your support of your judicial colleagues is sincere and unwavering, especially to newly appointed Judges.  You are sometimes affectionately referred to as The Admiral, which marks one of your achievements.  This Court is the respected court for the determination of maritime disputes pursuant to the Admiralty Act, which was not the case prior to your appointment.  You accepted a heavy personal responsibility for the management of admiralty matters and the admiralty national practice area.  The efficiency of disposition and the erudition of your judgments quickly led to this Court being recognised as the leading admiralty and maritime court in Australia, nationally and internationally.  

Of course, that is one example.  There is precious little time today to dare say more.  Your breadth and knowledge of the law is, of course, to be found in your published judgments, notable for  succinctness and clarity of expression.  Now, last year, and as a very young Judge, I was given some sage advice by one or two judicial colleagues.  I won’t name them:  First, if you make a mistake, own up to it immediately and call James.  He will tell you what must be done to correct the error or offer an appropriate mea culpa.  Always have James’ mobile number close to hand.  Secondly, never, never interrupt James at the Judges meeting.  The reason being that one is likely to look foolish in displaying one’s obvious lack of insight into a particular issue that James has thoroughly interrogated and so on.  Thirdly, I was also advised that to sit with you is a learning experience not to missed by a new judge.  Sadly, I have not sat with you, and on the current allocations, I will not prior to your retirement.  That is to my detriment. 

In closing these all too brief remarks, I draw from a passage in your speech to the bench and bar dinner in Port Moresby.  You emphasised the importance of respect for litigants to ensure that the Courts enjoys the trust and confidence of all citizens.  You said, in part:  

To achieve this, some elements of judicial technique are vital:  skill, thoughtful learning born of lifelong study, impartiality, diligence, reasonable despatch, a faithfulness to precedent where abiding and properly construed text, fairness, an eschewing of any partisanship or loyalty, a lack of anger or emotion, the application of reason and practical judgment, a respect for the dignity of all and an empathy for all before the court…  

Chief Justice, that is your CV.  Chief Justice, on behalf of the Hobart Registry and the Tasmanian profession, I thank you for your long and dedicated service to the people of Australia.  

ALLSOP CJ:   Thank you, Justice McElwaine.  The court will now adjourn.  
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