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TRANSCRIPT OF PROCEEDINGS

O/N H-1695365

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

TO WELCOME

THE HONOURABLE JUSTICE DOWNES

THE HONOURABLE JAMES ALLSOP, Chief Justice
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE RANGIAH
THE HONOURABLE JUSTICE DERRINGTON
THE HONOURABLE JUSTICE THOMAS
THE HONOURABLE JUSTICE S C DERRINGTON
THE HONOURABLE JUSTICE DOWNES
THE HONOURABLE JUSTICE MCELWAINE JJ

GUESTS OF THE BENCH:

THE HONOURABLE JEFFREY SPENDER QC
THE HONOURABLE JOHN DOWSETT AM QC
THE HONOURABLE JOHN REEVES QC

BRISBANE

4.16 PM, THURSDAY, 31 MARCH 2022
ALLSOP CJ:   Welcome to this in-person and live-streamed, as we now say, ceremonial sitting of the Court to mark the appointment of Justice Kylie Downes.  I commence by acknowledging the Turrbal and Jagera Peoples, the traditional custodians of the land on which we gather, and pay my respects to their elders past and present and emerging.  Sitting today are all resident Queensland judges, Justice Rares from New South Wales and Justice McElwaine from Tasmania.  And we are delighted to have sitting with us former colleagues, the Honourable Jeffrey Spender QC, the Honourable John Dowsett AM QC, the President of the National Native Title Tribunal, and the Honourable John Reeves, whom Justice Downes replaced.  

May I particularly welcome the members of Justice Downes’ family, husband Bill Morrissey, son John, mother-in-law Margaret Morrissey, sister-in-law Jillian Smith, and goddaughter Laura Schenk, and all of Justice Downes’ friends.  May I acknowledge the presence here today of the Chief Justice of Australia the Honourable Susan Kiefel AC, and the Honourable Justice Patrick Keane AC of the High Court.  Justice Edelman of the High Court is an apology.  Justice of Appeal, Justice Bond and Justices Martin, Applegarth, Flanagan and Freeburn of the Supreme Court.  Chief Judge Deveraux of the District Court and District Court Judges.  Chief Magistrate Gardiner.  Deputy Presidents McCabe and Meagher of the Administrative Appeals Tribunal.  And Ms Ulla Greenwood, Ms Glenice Spender and Ms Janet Logan.  

May I also acknowledge at the bar table Ms Jane Lye, the Australian Government Solicitor who is representing the Attorney-General today, Mr Tom Sullivan QC, President of the Queensland Bar, Ms Elizabeth Shearer, the immediate past President of the Queensland Law Society, Ms Kara Thomson, the President of the Queensland Law Society, and the Solicitor-General of Queensland, Mr Sandy Thompson QC.  

Justice Downes, you began exercising – I think having seen your work I would prefer to say wielding – the judicial power of the Commonwealth on 2 August 2021.  Since then, you have cut a swathe through the work given to you.  In particular, you have, with others, been instrumental in insolvency and commercial work of the Court, not only of this registry but around the country.  

It is a great delight, a personal pleasure to preside over this formal welcome for you and express formally the welcome and best wishes of all the judges of the Court.  I said to you at the private swearing-in last August that I hoped you would enjoy the work.  From my observation, you appear to be.  Welcome, and may that enjoyment continue.  Ms Lye, on behalf of the Attorney. 

MS J. LYE:   May it please the court.  I also would like to acknowledge the traditional owners of the land on which we are meeting today and pay my respects to the elders past, present and emerging and to acknowledge those attending here today who have Indigenous connection.  I appear today, your Honour, on behalf of the Australian Government and the Australian people to congratulate you on your appointment as a judge of the Federal Court of Australia.  The Attorney-General, Senator the Honourable Michaelia Cash regrets that she cannot be here personally 
with you today to share this occasion.  She has, however, asked that I convey the Australian Government’s sincere thanks to your Honour for her willingness to serve on the Bench of the Federal Court, and that I pass on her very best wishes for what she trusts will be a truly distinguished career as a judicial officer of the court.  

Your Honour’s appointment to the Court is another success in a diverse and very respectable career.  That so many of your colleagues have been able to be here today is a testament to the high regard in which you are clearly held.  May I also acknowledge the presence in the Court of your family who I’m sure are equally proud of your achievement.  Your Honour has had a fitting career that has led to her appointment to the Court and a precursor with a distinguished career at the Queensland Bar.  After graduating with a Bachelor of Law with Honours from the Queensland University of Technology and admission as a Barrister in the Supreme Court of Queensland, your Honour also obtained a Bachelor of Civil Law with Honours from the University of Oxford.  

Your Honour, in 2008, was appointed as Senior Counsel which became Queen’s Counsel in 2013.  Your Honour’s reputation at the Bar was fearsome, and as I understand, you were much sought after for particularly difficult cases where someone had the intention and skill and experience to argue hard for her clients.  

Your Honour’s analysis and attention to detail, I understand, is famous.  And your Honour’s skill and expertise in the areas of insolvency and restructuring, as has been noted, will be beneficial to the Court.  Your Honour has been described as a truly gifted advocate, a natural leader and a Counsel who possesses an unrelenting commitment to advance the very best position for your client.  Your Honour’s appointment to the Court acknowledges your many years of dedication to litigation and the community in which you will now serve as a Judge of the Court.  

Your Honour takes on this role with the best wishes of the Queensland legal profession, I am sure.  We trust that you will approach the role diligently and with the care and attention to detail that you did while at the Bar.  On behalf of the Australian Government and the Australian people, I extend to you sincere congratulations and welcome you to the Federal Court of Australia.  May it please the Court.  

ALLSOP CJ:   Thank you, Ms Lye.  Mr Sullivan on behalf of the Queensland Bar and the Australian Bar Association.
  
MR T. SULLIVAN QC:   May it please the Court.  On behalf of the Australian Bar Association and the Bar Association of Queensland, it gives me great pleasure to welcome your Honour Justice Kylie Downes to this Court.  Justice Downes, I extend particular welcome to your husband, Bill Morrissey, and your son, John, and other members of your family and friends who have been able to join us here today.  Your Honour joins this Court following a distinguished career at the Bar.  You attended the Queensland University of Technology where you were awarded a Bachelor of Law with Honours in 1991.  You were then employed by Blake Dawson Waldron, now Ashurst, before being called to the Bar in August of 1992, having won the 
James Archibald Douglas Prize.  Your Honour then went on to the University of Oxford, where you were awarded a Bachelor of Civil Law with Honours in 1993.  

After two years of lecturing at the University of Buckingham in England, you commenced practice at the private Bar in Queensland in 1996.  Your Honour was appointed silk in 2008.  I remember the day well.  We sat next to each other and fortuitously for me, I am now one person senior in the list of Barristers.  

At the Bar, you built up an extremely busy commercial practice, appearing in a very diverse range of cases.  You excelled in many areas of practice but became particularly well known for your expertise in banking, finance and insolvency litigation.  Your Honour was, it has been said, a fearsome advocate, discharging your duties to the Court and your client without fear or favour.  Your Honour was renowned for your preparation for and precision in appearances in Court.  You were known as being efficient, hardworking and effective, as well as possessing an outstanding ability to think quickly on your feet.  

Your early work lecturing showed your commitment to education which has been present throughout your career to the benefit of many people in both arms of the profession.  Your Honour co-authored the chapter of interlocutory applications in the Case Management Handbook published by the Law Council of Australia and the Federal Court of Australia, and is author of the well-known civil procedure book, Back to Basics, which has become essential reading for any new member of the Bar.  

You have also been an active supporter of the Bar Association of Queensland throughout your career.  For the past decade, you have performed the important role of Ethics Counsellor for the Association.  As well as this role, you have taken on a great many readers and juniors.  You have particularly mentored young female barristers who wish to practice at the commercial Bar.  Those fortunate to have been mentored by your Honour have enjoyed your continuing support throughout their careers, safe with the knowledge that, regardless of your Honour’s own commitments, your advice and encouragement was always available to them.

Justice Downes, to become a member of this honourable Court is to answer a call to public service.  Your Honour’s extensive contribution to the profession is such that it was no surprise that you answered that call when the opportunity arose.  We know that your Honour has accepted this appointment because your Honour values public service and understands the importance of leading members of the profession, such as yourself, taking up the considerable and challenging burden of work in the Federal Court of Australia.

For that commitment, the legal profession and the broader Queensland and Australian community are extremely grateful.  The Bar has every confidence that your Honour’s intellectual ability and integrity, sense of justice and calm demeanour will put your Honour in good stead for a long and very successful life on the Bench.  The Bar and its members extend to you and to your family their best wishes on this well-deserved appointment.  May it please the Court.

ALLSOP CJ:   Thank you, Mr Sullivan.  Ms Shearer, representing the Queensland Law Society and the Law Council of Australia.

MS E. SHEARER:   May it please the Court.  I too acknowledge the traditional owners of the land on which this Court stands here in Meanjin on the banks of the river, and pay deep respect to the Turrbal and Jagera People, to their Elders, past, present and emerging, and to their Lawmen and Lawwomen who, for tens of thousands of years, ensured the peace, order and good governance of this place.

From the time of its statutory creation in 1976, this Court has played a role of great importance in national life.  As his Honour, the Chief Justice Allsop remarked at his own ceremonial welcome to his role, and citing his predecessor, Sir Nigel Bowen, in a Court with a shorter history than many, it is the high quality of the Court’s Judges and their outputs that furnish its high standing.  Justice Downes, with your Honour’s appointment to this Bench, you have joined a distinguished company of Judicial Officers who pledge their talents and experience to the service of the community.  Your appointment will only enhance the high standing of this Court.  To have committed yourself to this task at the peak of your successful career at the Bar is an act of great public service to the people of Australia.  For this, I thank you and congratulate you on behalf of the Law Council of Australia and the Queensland Law Society.

At the Bar, your Honour was a highly capable trial silk and hands-on advocate.  As a senior commercial barrister with a deep technical knowledge of the law, you also had a prodigious work ethic and an appetite for detail.  You gave people confidence and were especially favoured in matters where time was of the essence.  Getting across a great volume of material at the eleventh hour never daunted you.  It never mattered how late you were briefed; you brought matters up to hearing with the same energy and meticulous preparation.

A barrister through and through, it’s reported that you were truly at home in a courtroom.  You were confident in setting the pace, strategy, and exhibited a communication style that was fearless and yet unfailingly respectful.  Your Honour always ensured that a matter was presented in the best way possible to maximise your client’s potential for success.  What your Honour said, the way you said it, which documents were filed and the order in which they were read were all decided by you according to what would be most effective.

However, this strategy was never static.  You were attentive to the atmospherics and dynamics of the courtroom, adapting submissions and their structure accordingly.  This nimble flexibility will benefit the Court and your courtroom.  

Your Honour was a terrific teacher at the Bar.  Junior colleagues would often call you and ask a question about the likes of a Mareva injunction, in which you were the specialist, and be instructed by you, “Get a pen and paper, I will walk you through it.”  

The generous educative role you played within the legal profession was typified more broadly by the two decades during which you contributed to the legendary 
Back to Basics column for the Queensland Law Society’s publication, Proctor, on whose editorial committee your Honour also served.  Practical and user friendly, these columns, your Honour’s brainchild, were highly popular with junior and more senior solicitors.  Many a solicitor’s bookshelf plays host to the Back to Basics columns in their collected form, now in the third edition with 59 featured articles.  It’s said your respect for the profession and your desire to foster the progress of solicitors inspired you to write these columns and this inspiration was infectious.  

Counsel would enter your Honour’s room to ask a question about the law and leave with a commission for a Back to Basics column.  I’m told you would say, “That would be a great article.  Why don’t you write it and have it to me in 30 days?”  When the book of collected columns was published, your Honour did not want any royalties but insisted the funds were put to good use.  One such use was to support indigenous law students’ travel and accommodation to attend the National Indigenous Lawyers’ Conference.  This was a big deal for the students involved and helped along a number of students who are now among our First Nation lawyers.  

Your Honour brings to the Bench a strong sense of humanity and courtesy.  You cared deeply about your clients, well understanding the risks and costs of litigation.  You moved things along efficiently to minimise cost.  Chambers colleagues recall that things were moved along so swiftly, there was not anything left on your desk at the end of the day.  

Solicitors appreciated your engaged approach to collaboration, especially your inclusion of every member of the team.  You were as happy to discuss a matter with a law clerk just out of law school as you were a partner.  Solicitors inevitably felt confidence that their clients were in good and careful hands.  

A loyal mentor, your Honour is known for looking out for the career development of others, embodying the best of the Bar’s traditions.  You promoted others, giving them opportunities, especially when they were very junior or new to the state.  Your Honour would take an interest in somebody new or somebody returning from parental leave, giving sound advice and providing opportunities for work.  This sense of collegiate assistance extended to serving, as we have heard, as Ethics Counsellor for the Bar.  You provided confidential pro bono guidance on ethical issues barristers face in practice.  Your clear-headedness and breadth of experience well suited you to that role and will continue to serve you well in your new role on this bench.  

Outside the law, your Honour is immensely proud of and devoted to your family, and I am reliably informed that you are an excellent lunch companion, recommender of restaurants, and curator of tasteful wine lists for the Chambers’ Christmas party.  

Your Honour is an excellent addition to this bench.  You have already been observed to deal with matters expeditiously which comes as no surprise to those familiar with your work ethic.  Indeed, already more than 30 judgments bear your Honour’s name.  Those who have already appeared before your Honour say you have been astute, generous, and courteous.  They speak of the experience of being in a courtroom that facilitates all those participating to give of their best, even via Teams which your Honour quickly mastered.  

The delivery of prompt, courteous, and effective resolution of disputes is named as one of this court’s objectives.  Your Honour is eminently qualified and ideally suited to realise this important purpose.  The Australian legal profession, and because I also speak on behalf of the Queensland Law Society, the solicitors of Queensland, have great confidence that you will make a profound contribution to the administration of justice in this state and in this country.  We thank you for stepping into this life of service and again express to your Honour our congratulations and assure you of our support.  May it please the Court.

ALLSOP CJ:   Thank you, Ms Shearer.  Justice Downes.

DOWNES J:   Thank you, Chief Justice.  Chief Justice, other members of the Federal Court, the Honourable Susan Kiefel, Chief Justice of the High Court, and Justice Keane of the High Court, the Honourable Justice Bond of the Court of Appeal, Judges of the Supreme Court, his Honour Brian Devereaux SC, Chief Judge of the District Court, and other judicial officers and tribunal members, retired judges, members of the profession, and family and friends, I’m grateful that you took the time to attend today.  It’s appreciated.  

Thank you for your words of welcome, Ms Lye, and thank you also, Mr Sullivan and Ms Shearer, for the kind things that you’ve said about me.  I’m pleased to see Ms Thomson here also.  I have always enjoyed supporting the Queensland Law Society in particular, and I hope that I can continue to do so.  

Over more than 25 years in practice as a barrister, I have accrued many war stories.  And while you are a captive audience and the temptation is there, I will limit myself.  

Early in my career I appeared in a patent trial before his Honour Justice Dowsett, as he was then.  It was about a jackpot system, and I recall that there was maths involved.  A lot of maths.  Which the judge appeared to embrace with glee.  

I later appeared in a patent trial before Justice Kiefel, as her Honour then was.  It was the same jackpot system, different opponent.  There was perhaps less glee from the Bench about the maths.  Pat Keane QC, as his Honour then was, was briefed to lead me in the appeal from that trial.  I distinctly recall sitting in his chambers and telling him about the patent and the maths, and him telling me to “just – slow – down”.   

For reasons which I hope are not connected, he decided to take an appointment to the Court of Appeal before the appeal was heard.  It seemed that I needed another leader, and so on the appeal I was led by John Nicholas SC, who is now Nicholas J of the Federal Court in Sydney.  

A later stoush in the Federal Court, not about a patent this time but a trademark, was heard by Greenwood J.  My opponent was a Sydney barrister called Stephen Burley SC, who’s now Burley J of the Federal Court.  Our topic of choice was Lucky Strike cigarettes.  One of my favourite parts of that trial was the debate about how movie characters always smoke Lucky Strike cigarettes.  Look out for it next time you watch a movie and you will see what I mean.  Greenwood J was not as excited as we were by that argument.  

None of this is to say that I’ve not enjoyed appearing in other courts.  However, I said I would limit my stories and these seem to be the most pertinent. 

Brisbane is a small place and the legal profession in it is even smaller.  When I first started at the bar, I was a reader on level 16, Quay Central.  The Bar Association President, Tom Sullivan, was another reader.  A permanent member of the chambers was a junior barrister called Roger Derrington, now Derrington J.  More about him shortly.  

In my third week at the bar, Tom Sullivan flicked me my first trial brief, a one-day crash and bash from Hunt v Hunt.  My client was the RACQ and it was in the Magistrates Court.  I won that trial and my practice was off and running.  

Mr Sullivan then did another noble thing and introduced me to my husband Bill.  

I believe I still owe Mr Sullivan a lunch, perhaps more than one, for those acts of kindness.  

Fast forward 21 years and I joined Northbank Chambers in January 2017.  I very much enjoyed my time at Northbank Chambers.  I’m particularly grateful to my former personal assistant, Kerry Millar, who did so much for me during my time there.  

For a brief time after I joined, Bernard Porter QC was a member of Northbank Chambers.  It was a much quieter place when he became a District Court Judge.  

Thinking about my last years at the bar, I miss my daily, and sometimes hourly, chats with David de Jersey QC, who was my next-door neighbour in chambers.  I also miss wandering down the hall to Gerard Brennan Chambers to share gossip with Dominic O’Sullivan QC as he sipped on endless cups of tea.  

Over the years, a fairly energetic and enthusiastic solicitor called Peter Schmidt would send me insolvency briefs, and we did some very interesting work.  Indeed, in our last matter together, we did battle with the Queensland Solicitor-General, Sandy Thompson QC, in front of Justice Peter Flanagan, both of whom I’m pleased to see are here today.  Peter Schmidt was appointed a National Judicial Registrar and a District Registrar of this Court in March 2021.  I would like to accuse him of following me around, but the chronology doesn’t fit.

Over the years, I was led by and worked with some very able silks, many of whom went on to become Judges.  They taught me many things.  I also had the pleasure of working with and leading some wonderful juniors, all of whom worked very hard and showed great promise.  I hope to see them all develop a healthy practice in the Federal Court.  And last, but by no means least, I received constant work from a stable of first-rate solicitors over the years for which I am extremely grateful.  

I must also thank John Teerds, the editor of Proctor, for his support over about 20 years.  The Queensland Law Society is lucky to have John Teerds.  

And, finally, I would also like to thank James Bell QC and Richard Douglas QC.  Each of these silks is, in their own way, a quiet leader of the Brisbane Bar.  

Which leads me to 2 August 2021 and my current role, eight months on Saturday.  I am now a member of a Court which has national practice areas, and I was delighted to discover that this means that judges are streamlined according to their particular areas of study, practice, and experience.  I have been allocated to the commercial and corporations, intellectual property, insurance, and taxation national practice areas in particular.  I am lucky enough to have a great team of people around me, all of whom have been helpful, kind, interested, and conscientious.  

They include Sia Lagos, the CEO and principal registrar, Paul Farrell, the national operations registrar, Peter Schmidt, Melissa Charles, my associates Pragadesh Sukumar and Joshua Halikos, and all of the court’s IT and administrative support  staff, especially Max Comp, Lee Careswell, and Matt Schofield.  

These days, instead of visiting O’Sullivan QC, I wonder down the hall or even into the lift to talk to my new work colleagues, all of whom have been very welcoming, and that includes the former Justice John Reeves who retired in early January.  Or I pick up the phone or connect to a Teams link to speak to one of my fellow judges interstate, many of whom have reached out to me or written to me, which is appreciated.  

My new next-door neighbour is Justice Berna Collier who has, in particular, been very attentive and kind.  Justice Greenwood and his wife, Ulla Greenwood, hosted a splendid dinner party for the Brisbane judges last year to welcome me, complete with magnificent dogs nudging our knees for scraps.  And then there is Justice Roger Derrington whose door is always open and who has given me excellent guidance.  Both Justice Roger Derrington and Justice Sarah Derrington could not have shown me more friendship, and I thank them both.  And I know that I can always call or text the Chief Justice who is another source of friendship, guidance, and support.  

Finally, I must acknowledge my friends and family, in particular my parents who have always shown me great support and encouragement in my education and in my career, and my husband Bill and my son John who I cannot thank enough.  

Thank you.

ALLSOP CJ:   Court will now adjourn.

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