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TRANSCRIPT OF PROCEEDINGS

O/N H-858209

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

FOR THE FAREWELL OF

THE HONOURABLE JUSTICE GILMOUR

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE SIOPIS
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE GILMOUR
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE BARKER
THE HONOURABLE JUSTICE BROMBERG

GUESTS OF THE BENCH:

THE HONOURABLE ROBERT FRENCH AC
THE HONOURABLE MALCOLM LEE QC
THE HONOURABLE ROBERT NICHOLSON AO

PERTH

9.32 AM, FRIDAY, 9 FEBRUARY 2018
ASSOCIATE:   The Court’s farewell to the Honourable Justice Gilmour. 

ALLSOP CJ:   Welcome to this ceremonial sitting of the Court to mark the impending time of our colleague, the Honourable John Gilmour.  Present on the Bench with the present Judges of the Court are the Honourable Robert French, former Chief Justice of Australia and former Judge of this Court, the Honourable Robert Nicholson and the Honourable Malcolm Lee, also former Judges of this Court.  Welcome.  Sitting on the Bench with myself and the Western Australian Registry Judges, are senior Judges of the Court who have come to honour Justice Gilmour.  We have Justice Dowsett, Justice Rares, Justice Besanko and Justice Bromberg.  

The ceremony is being video cast to all registries in Australia, and Judges of the Court available to attend who are not in Court otherwise are in Sydney, Melbourne, Brisbane, Adelaide and Hobart.  

I acknowledge the traditional custodians on the land on which we meet, the Whadjuk people of the Nyungar nation and pay my respects to their elders, past and present.  

I particularly acknowledge the presence here today of Justice Gilmour’s family:  wife, Marcia;  daughters, Tracy, Kathryn and Emily;  your son, Josh;  your son’s and daughters’ partners, Emma, Steven and Scott;  your brother and sister-in-law, David and Karan;  and your many, many friends, including former Associates and Executive Assistants.  

I acknowledge also the presence of Federal and State Judges:  the Chief Judge of the Family Court of Western Australia, the Honourable Stephen Thackray;  the Honourable Michael Buss, the President of the Court of Appeal of Western Australia;  the Honourable Justice Murphy of the Court of Appeal of Western Australia;  the Honourable Justice Andrew Beech of the Court of Appeal of Western Australia;  Justices Le Miere, Chaney, Fiannaca and Banks-Smith of the Supreme Court of Western Australia;  Judges Lucev and Wilson of the Federal Circuit Court;  Chief Magistrate Heath of the Magistrates Court of Western Australia.  I also welcome Mrs Lynne Nicholson, Mrs Loma Toohey, Mrs Margaret Muirhead, Ms Anne Siopis and Mrs Leith McKerracher.

Many of your judicial colleagues, friends have sent their clear and strong apologies, Justice Gilmour.  May I, in particular, remark the apologies of the Attorney-General the Honourable Christian Porter;  Chief Justice of Australia, the Honourable Susan Kiefel;  the Chief Justice of Western Australia, the Honourable Wayne Martin;  the Chief Justice of the Family Court of Australia, the Honourable John Pascoe;  Justice of the High Court, the Honourable Patrick Keane, also former Chief Justice of this Court;  the Honourable Michael Black, former Chief Justice of this Court;  the Honourable William Alstergren, the Chief Judge of the Federal Circuit Court;  the Honourable Chris Carr, former Judge of this Court and his wife, Jennifer Carr;  the former Attorney-General, the Honourable George Brandis;  Judge Christopher Kendall of the Federal Circuit Court;  the Honourable Justice David Thomas of the 
Federal Court and President of the Administrative Appeals Tribunal;  and the Honourable Judge Kevin Sleight, the Chief Judge of the District Court of Western Australia.  

There is one particular apology which I will also mention.  Your friend, Justice David Hammerschlag, the Commercial List Judge of the Supreme Court of New South Wales, cannot be here.  He asked me, with your permission, to read out some words that he wanted said.  Rather than do this as an addendum to words I composed, I thought I would commence my remarks by fulfilling that responsibility.  These words encapsulate much of what I want to say.  Those of you who know Justice Hammerschlag, or The Hammer, as he is either affectionately or not so affectionately known, will recognise the style.  It is entitled “A Tribute to His Honour Upon His Retirement.”  May I read it:

I first met and became acquainted with the Honourable Justice John Gilmour at the festivity often described as “baby Judges school”, which we both attended shortly after our respective appointments.  “Baby Judges” is a euphemism for Judges wet behind the ears, but in my case, standing next to Gilmour, it had some literal accuracy.  Judicial commitments prevent me from being at this ceremony.  It is difficult not immediately to like Gilmour.  That is not to suggest that I devoted any effort to not liking him.  It is equally difficult not to admire the man when you get to know him.  He has unshakeable faith.  Doing the right thing is at the core of his human existence.  He is a man of action coupled with restraint.  He is an outstanding lawyer and has been an outstanding Judge.  His courage and humility have shone through with the adversity he has faced.  John, it has been a privilege to have been associated with you as a colleague.  You will be sorely missed by all of your friends and colleagues across the Courts and by the profession.  I join with all those others who wish you well.

As Viscount Simonds said about a wonderful judgment of Sir Wilfred Fullagar, I not only entirely agree, but I agree with every line and every word of it.  You share a bond of friendship with all here, and with The Hammer, if I may use that expression, but you also share a bond with Justice Besanko and myself with Justice Hammerschlag, which I will mention when I come to the legacy of your judgments.  

You were publicly sworn in in December 2006.  Your path to Australia and to this Court were outlined in the speeches on that day and others, no doubt, will speak of them today.  You came here for a holiday, fell in love first with Western Australia and then with Marcia. 

I wish to speak of your time in the Court and your contribution to its life and work.  

First, there is this Registry.  In a numerically small group of Judges, collegiality, friendship and the sacrifice of hard work are the essential bond of the functioning of the Court.  There is no place to hide in a group of four or five.  And how could you 
hide anyway?  Your warmth, friendship, strength and humility help bind this into a happy and hugely efficient place.

Whether it was your guitar playing, your composing of a song for Marcia on an anniversary, holding concerts at your home to raise money for the orphanage in Cambodia that you support, you included your colleagues in your life and they in yours.  

Secondly, your work in committees for three Chief Justices and colleagues has been tireless.  You have served on International Development Cooperation Committee, the Criminal Procedure Committee, the Appeals Committee, the National Practice Committee, the Library Committee, the Judicial Education Committee, the Electronic Hearings and Digital Hearings Committee subcommittee, and a hugely important subcommittee for the implementation of the electronic court file as well as ad hoc committees, including the Enterprise Bargaining Steering Committee.  This is often thankless work, but it underpins the life of the Court.

Thirdly, for Chief Justices, I cannot speak for The Honourable Michael Black or The Honourable Pat Keane, but may I reflect on the assistance and support you have given me.  Most notably, and in my memory, in 2014 I saw every Judge in the Court about the changes I wished to see made in the Court and the organisation of a Court along the lines we now have.  I came to Perth to see all the Western Australia Judges.  I saw them as a group.  I thought this was wise.  You arrived unavoidably a little late.  You sat on my right, slightly out of my peripheral vision, but I could just see you rock still and broodingly silent, looking at me as I engaged with your and my colleagues.  There was a certain tension.  No doubt, I was explaining things badly and perhaps becoming a little impatient.  At what I thought was a critical moment, you finally spoke.  It was with some apprehension that I waited to hear what you wanted to say.  You said in that wonderful calm voice in which we will shortly bathe, “I fully support this.  I could never understand why we hadn’t done this before.”  That was enough for all in the room.  Since then your personal support for me, as Chief Justice, has always been obvious, even when, or perhaps especially when, you might be cautioning me or advising me of possible error.

Your judicial output has been large and indefatigable.  You have been called upon on a regular basis to do heavy lifting, especially in commercial matters.  You have also served as a Judge of the Australian Capital Territory, a Judge in the Supreme Court of Norfolk Island as well as the Judge of this Court.  Your judgments span the full body of the work of this Court and important judgments in native title, industrial, taxation, commercial law, company law, admiralty, trade practices, extradition, and migration.  Your judgments, like your personality, are marked by clarity of expression, command of the subject and of the occasion, freedom from error, and all contain the human warmth, dignity and clear sense of justice that mark you. 

Your command of commercial law and company law is borne of your deep practical experience in the area throughout your career and it is, as Justice Hammerschlag implied, well known all over the country.  I will always remember your brutally 
effective defence of the late Steven Paterniti and myself when I was a senior counsel in front of Mr Justice Owen in a piece of both unnecessary and unpleasant guerrilla warfare in the Bell case.  But in the context of commercial law, I should return to Hammerschlag.  Your decision in ASIC v Fortescue and its sequelae entitle you to membership of one of the most-exclusive clubs of Judges in the nation, those overturned unanimously by a Full Court or the Court of Appeal and reinstated unanimously by the High Court, even if one of your colleagues, who shall go nameless, perhaps uncharitably said “on different grounds”.  You have proudly carried a membership card of that club along with, at least here today, Justice Besanko and myself as well as Justice Hammerschlag.  There may be others here.  If there are, we should have a meeting of the club.

I’ve spoken enough.  I hope I’ve conveyed to you and to all here how much I and we all, all your colleagues in the Court, have valued your collegiate friendship, skill and capacity as a Judge, and wise counsel.  How much you mean to others is displayed by who is here today and those who wish they could be.  We wish you well as you gather your strength, look to the future and conquer every challenge that life has to offer.   

Mr Macliver.

MR P. MACLIVER:   May it please the Court, may I begin by acknowledging the people of the Whadjuk Region, the traditional custodians of the Perth area, and pay my respects to all of Australia’s Indigenous peoples.  It is a great honour to be here today on behalf of the Government and people of Australia, to celebrate the career of the Honourable Justice John Gilmour.  Your Honour will retire after more than 11 years of dedicated service to the Federal Court of Australia, and during this time your Honour also served as a Judge of the Supreme Court of Norfolk Island for three years and as an additional Judge of the Supreme Court of the Australian Capital Territory for five years.  The Attorney-General, the Honourable Christian Porter MP, regrets that his Ministerial commitments prevent him from being here.  He asks that I convey the Government’s sincere appreciation of your Honour’s contributions to this Court and pass on his best wishes for a fulfilling retirement. 

Today’s ceremony is attended by a number of distinguished guests, and may I acknowledge in particular the presence of the Honourable Robert French AC, former Chief Justice of the High Court of Australia;  the Honourable Robert Nicholson AO;  and Malcolm Lee QC, former Justices of this Court;  the Honourable Justice Stephen Thackray, Chief Judge of the Family Court of Western Australia;  the Honourable Justice Michael Buss, President of the West Australian Court of Appeal;  other current and former members of the Judiciary;  and members of the Legal Profession.  May I also acknowledge the presence of your family who proudly share this occasion with you.  Your wife, Marcia, and your children, Josh, Tracy, Catherine and Emily.  As I understand it, your other son, Nic, presently lives in California and was unable to attend today.

A full exposition of your Honour’s achievements would occupy more that my allotted time permits, therefore I will focus on just a few of the qualities and experiences that have marked your Honour’s career.  At a time such as this, it is appropriate to reflect on your Honour’s accomplishments.  Born in Scotland, your Honour obtained a Legal Degree from the University of Dundee in 1972.  Within three years of commencing practice as a Solicitor, you were offered a role as a partner.  Prior to take up this offer, however, your Honour chose to travel for six months across Pakistan, India, New Zealand and Canada and as luck would have it, fighting between India and Pakistan meant that you were stranded in Pakistan.

With only two options out of Pakistan at the time, you ended up in Western Australia, the place you thought you would be most likely to find work.  Here, you obtained work on a farm at Katanning.  I am told that waking to the endless shimmering wheat paddocks was a revelatory experience for your Honour.  And having been to Scotland a number of times, I can appreciate that, your Honour.  Your Honour then joined the firm E. M. Heenan & Co in 1976.  You were made a partner only two years later.  

Your Honour left that firm in 1981 to set up Gilmour Solicitors where you practised until you were called to the Bar in 1989.  Your Honour took silk in 1994 in Western Australia, and in 1996 in Victoria.  I am told that you were amongst a select number of Western Australian Barristers asked to appear in and later lead on major cases in Melbourne, much to the chagrin of the Victorian Bar.

Your eminence as a Barrister, however great, did not diminish your character.  While appearing in a complex commercial case, Counsel was asked to limit oral submissions on a key point to 20 minutes or less.  With a look somewhere between quizzical and amused, it is reported that you replied:

Your Honour, I don’t think I can introduce myself in 20 minutes.

I am also told that on one occasion, while acting pro bono for a client in a criminal matter, you defied all expectations when you presented a crucial record that enabled you to exonerate your client on all charges.  Little did anybody know that you had spent the previous weekend in the searing heat, sifting through a long forgotten sea container, looking for a piece of evidence which the prosecution believed did not exist.  Luckily for your client, you found it.  

Your skill for advocacy is one which your colleagues express a great admiration for.  You are said to have treated all witnesses with respect and unwavering logic, like a professor trying to work out a maths problem with a colleague.  This skill was recognised even by your children.  Your son, Nic, recalls that he had a striking realisation after witnessing you skilfully cross-examine an expert witness, saying:

No wonder us kids never got away with anything.

Your Honour was appointed to the Bench of this Court in 2006.  You are said by many of your peers to have conducted yourselves with fairness and intellect during your time on the Bench.  Your Honour has delivered more than 600 judgments, many of them very significant.  A notable example was the judgment that your Honour delivered, along with Justices Jacobson and Gordon as their Honours then were, in the 2014 matter of ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65.  

In this decision, your Honours found a ratings agency liable in negligence and misleading and deceptive conduct, the losses flowing from a flawed ratings assessment.  Various commentators have noted the significance of this decision from both an Australian and an international perspective.  I have also been told that this is a decision you speak of with pleasure, reflecting upon the intellectual exercise and the collegiate effort which resulted in what some have called an encyclopaedic decision.  

Another highlight of your Honour’s tenure on this Court was a judgment recognising the Native Title of the Nyikina Mangala people to over 26,000 square kilometres of the West Kimberley area.  The special sitting of the Federal Court at Lanji Lanji along the Fitzroy River, must have been a truly memorable experience for your Honour.  

Your Honour and your wife, Marcia, are described as generous beyond description.  One of your children recalls the night that someone came to your house, desperate and seeking advice.  And despite your Honour’s enormous workload and personal commitments, you sat down with the man and listened to his story.  Soon you realised the man was illiterate and simply needed someone to read him a letter and explain it to him, which you proceeded to do.  This kindness was not lost on your children nor, I am sure, on those who sit alongside you on the Bench today.  

Your Honour is said by many to be selfless and always willing to get your hands dirty for a good cause.  I am told that on a trip to China, you picked potatoes under the hot sun for the benefit of poor and marginalised farmers, drawing on your previous experience picking potatoes for pocket money in Scotland.  

Your Honour’s unwavering commitment to assist others does not end there.  I understand that you take great pride in an orphanage that you helped establish in Cambodia, where you spent your holidays assisting children and the disadvantaged.  You were similarly instrumental in establishing the Great Southern Grammar School in Albany some 20 years ago.  It was one of the first private Christian schools in the region, and now teaches over 800 children.  

I am also told that your Christian faith is something which has sustained you since the 1980s, and that in 1990 you and Marcia established a church at your Mount Helena home.  Then in 10 years your congregation had grown so much that you needed to move to a local hall, where you still conduct partial duties. As one of your children so eloquently put it:

Growing up with John Gilmour as a father left all his children with tremendous values on honour, truth and compassion.

On occasions such as these, one inevitably turns to the question of what comes next.  Your Honour is passionate about sport, both as a participant and spectator.  Your passion for kayaking on the Swan River and the more treacherous Avon Descent race, hints that your retirement may be less relaxing than most.  I am also relieved to hear that thanks to some cajoling from your sons, your allegiance in rugby lies with the Wallabies, and not your former home, Scotland.  Although I suspect that your Honour might not have been too displeased at the recent Scottish victory over the Wallabies after a number of very close defeats.

I am sure you are also looking forward to spending quality time with your family.  However, with five children and 10 grandchildren in tow, perhaps leaving the peace and quiet of your Chambers may seem like a daunting task.  In concluding, your Honour, it has been a privilege to be here today to celebrate your remarkable career.  Your professionalism and dedication to your judicial role and to the broader legal community, are an example for us all.  Your Honour’s unrelenting integrity, honour, truthfulness and civility will be dearly missed by those on the Bench today and your peers in the legal profession.  

On behalf of the Attorney General, the Australian Government and the Australian people, I would like to thank you for your dedicated service over the past 11 years to the Court and to the legal profession.  I extend to you my sincerest best wishes in all of your future endeavours.  May it please the Court.

ALLSOP CJ:   Mr Howard.

MR M. HOWARD QC:   May it please the Court.  It is my privilege to appear on behalf of the Western Australian and the Australian Bar Associations at this ceremonial sitting.  It is also, if I may be permitted to say, a particular personal pleasure. Your Honour was welcomed to the Court by Kenneth Martin QC on behalf of both the Local and National Bars just over 11 years ago.  On that occasion, one of the interesting, if not surprising, facts which was revealed, was that the Court and transcription staff at the Supreme Court had voted your Honour the sexiest voice in that Court.  I am unable to say whether a similar competition is held within this Court, and if it is, which candidates now fancy their chances.

On your appointment you had been more than 12 years in silk.  It is fair to say that you left at the height of your powers as an Advocate.  At the Bar, your Honour was invariably even-tempered and controlled, whether in Court, in conference with instructors and the client, or in the sanctuary of your Chambers with your junior.  Indeed, it would have been, and was, impossible to discern from your demeanour whether the day in Court had been a triumph, a disaster or just another day.  That is not to say that your Honour was robotic or humourless.  Far from it.  Appearing before Justice Anderson, with Zelestis QC against you, in an urgent, fearsomely contested injunction application, you were asked a barrage of questions from the 
Bench.  The material before the Court was voluminous.  And in order to answer one or two of the questions, your Honour sought the assistance of your, as it transpired, hapless junior.  

Justice Anderson remarked that he was happy to get the answer directly from your junior.  In your trademark dryness, your Honour observed that would be a dangerous course to adopt.  Your evenness of temperament reflected in part, I think, that while your Honour was a most excellent barrister, that calling never defined you.  You saw your life as a husband, father and leader in your church as being at least as, if not more, important.  Both as counsel and as a Judge, your Honour had a commanding presence in the courtroom.  That appeared to come effortlessly.  It was a presence which exuded the calm control of one well-placed total confidence in what they were doing.  

As counsel, it was never more apparent than when your Honour was cross-examining.  Your Honour was never hurried, never deflected and regularly elicited complete concessions which appeared to be made in response to a combination of well-timed silence, a certain look directed into the soul of the witness and your Honour seeming to grow even taller.  For those of us who have appeared before your Honour with a weak case or one not thought through nearly enough, it is fair to say that we gained an insight into what such a witness might have experienced.  I understand from an impeccable source that your Honour regarded the raising of five children as an excellent preparation for the work of a Judge.  

Your Honour had had long experience in resolving disputes and dealing with competing views as to what a just outcome and such disputes would be.  Notwithstanding your Honour’s application and dedication to your role in this Court, again, it did not define who you were.  You continued with the very important things that engaged you outside of the Court with your family, your community and church and beyond, as my learned friend has already indicated.  Your Honour was also revealed to have a romantic side, which had previously been pretty much hidden from everybody.  With your wife, Marcia, coming up to a significant birthday, you wrote her a poem.  I’m reliably informed that you composed it on a plane on the arts pages of The Australian.  

Of course, that, in itself, may have been enough for most of us to have awarded your Honour points in the Husband of the Year competition.  Your Honour was not yet satisfied.  With some assistance, you converted the poem to a song and set it to music, specifically guitar music.  Your Honour, however, didn’t, at that stage, play the guitar.  The answer was obvious.  You took guitar lessons secretly.  Not completely secretly, in that your Honour felt obliged to give some explanation to the Comcar driver who picked you and the guitar up at an airport while your Honour was arriving for Full Court duties.  Even that was not enough.  Your Honour took singing lessons.  The result, I am told, was genuine and total amazement on the family’s part when you produced the guitar to play and sing the song for Marcia at the party.  

Your Honour was always quick to get to the real issues, totally uninterested in any forensic games sought to be played, efficient in managing and deciding cases, and charming while ever the Court’s time was being spent in resolving the real disputes which were important to the litigants.  The Bar acknowledges and thanks you for your service.  We wish you all the best in the next phase of your life.  Again, from an impeccable source, I am informed that in retirement Marcia will more forcefully prosecute her application that you take to the wearing of an earring.  I am told it is something which she would very much like you to do.  With your retirement from the Court, I suspect you may have lost your last good argument in rejecting that particular application.  May it please the Court.  

ALLSOP CJ:   Mr De Kerloy.  

MR K. DE KERLOY:   May it please the Court.  It is with a sense of both honour and regret that I stand here representing the Law Council of Australia to farewell your Honour on your retirement after more than 11 years of providing magnificent service to the community and always a Judge of this Court for 30 years before that as a practising lawyer.  Your Honour practised in the amalgam between 1976 and 1989, at least for part of that time in partnership with Bob Richardson.  Your Honour had a busy practice and, from my personal observations, your Honour appeared very overworked and somewhat under-resourced.  Nevertheless, you had begun to develop a well-deserved reputation as a solicitor advocate.  

I am sure, however, that I was not the only person that suggested to you at the time that your talents would be better served practising exclusively as a barrister at the independent Bar, a suggestion which you took up in 1989.  There, your natural talents were finally in full view and held full sway.  Tall, dark and handy with a submission, your Honour quickly established a stellar commercial practice being instructed by all of the top law firms in Perth.  Personally, I did not like appearing against your Honour, not because of the way in which you conducted yourself in Court.  On the contrary, you were the model of civility and courtesy, both to the Court and to your opponents, traits which you have carried with you throughout your judicial career to the great benefit both of those who have appeared before you and to the quality of their arguments.  Rather, I knew from bitter experience that even with a rather unpromising set of facts and some unhelpful authorities, your Honour would still be able to pull together a compelling submission, wrap it in some beguiling Scottish brogue and, against the odds, win over the Judge.

One of the advantages of representing the Law Council in ceremonial sittings such as this is that its research assistant provide the speaker with the first draft of the speech.  As is typical of the Law Council, the research is thorough and extensive, but the style is, to say the least, effusive.  If I delivered the first draft of the speech unedited, your Honour would not have been on the way to retirement, rather your Honour would have been on the road to pre-mortem canonisation.  However, what is often particularly insightful are the observations made by the researcher in the email which accompanies the draft speech.  In the email which I received, my speech writer wrote this:

I have tried to capture the essence of him and his approach.  An article randomly came up on Google regarding his faith.  I include a link here.  It made for interesting reading, but I’m not sure if it is exactly accurate, but you do get a sense of a serious questing intellect and a commitment to justice that is rooted in the moral imperative.

In my respectful opinion, those words capture very succinctly and very accurately your Honour’s character and approach and contribution to the law of this country.  It is an approach which, amongst other matters, has seen you uphold the rule of law in the defence of the rights of ordinary citizens against the overzealous and overweening State intrusion.  As much was evident in the famous postscript contained in your Honour’s carefully considered and reasoned judgment in the case of ASIC v Andrew Forrest (No. 5) which has been mentioned by the Chief Justice.  At paragraph 69 and 70, your Honour observed:

Allegations of dishonesty made by ASIC against directors in legal proceedings are self-evidently serious.  They carry considerable weight and will often, as in this case, attract wide media coverage.  That they are made by the corporate regulator may injure the business of the particular company and will tend to adversely affect the reputations of those against whom the allegations are made.  Unless the allegations are withdrawn, the directors accused have to wait until trial before these can be tested.  Meanwhile, they have to live and work in their shadow.  In this case, the proceedings have been on foot for more than three years.

For at least these reasons, it is important that allegations of dishonesty should be made only where there is a reasonable evidentiary basis for them.  It is my opinion that on the totality of the evidence available to ASIC there was no such basis in this case.

Your Honour, the administration of justice in this country bears a great debt to your fearless, but measured application of the law in all of those many cases which have come before you.  On behalf of the Law Council, I extend our gratitude to your Honour for your contribution to the community, to the rule of law and to this august Court whose reputation you have enhanced.  We wish you a long, fulfilling and happy retirement, which we hope will include a continuing involvement with the legal profession.  May it please the Court.

ALLSOP CJ:   Thank you.  Mrs Cormann.

MS CORMANN:   Thank you, your Honour.  May it please the Court.  It is a privilege to appear today, on behalf of the Law Society of Western Australia, at this special sitting to pay tribute to your Honour on this occasion of your Honour’s farewell from this honourable Court.  May I take a moment to welcome the members also of your Honour’s family, in particular, Marcia and your daughters and one of your sons and their spouses as well as your brother and his wife.  I acknowledge also 
all your Honour’s friends and colleagues present here today as well as those who would like to have been, but could not be here.

As we have already heard, your Honour has a distinguished legal career.  To ensure a strong and independent judiciary, appropriately skilled Judges are needed, with the impartial and competent administration of justice being fundamental to the rule of law and underpinning our democratic freedoms.  This has been demonstrated in your Honour’s case and to this appointment your Honour brought an enormous breadth of experience from the Bar.  Your Honour’s qualities and experience prepared your Honour well for the Bench and, as a result, you have been of enormous value to this place and to the community during your time here.

While serving our community, your Honour delivered hundreds of judgments bridging corporate law, administrative law, migration, taxation and revenue and, of course, in native title.  In this regard, as we have heard, your contribution has been particularly notable.  This included that most-significant trip to Derby in 2014, presiding on the banks of the Fitzroy River and delivering a decision in front of the people on the land that was most meaningful.  It was life-changing and widely celebrated for the people concerned.  The imagery associated with that trip are a lasting and an inspiring memory for the profession and for the broader community.  In your Honour’s work, you lived and demonstrated the essence of access to justice and the basic principle that there should be no barriers to one’s ability to exercise their legal rights.  As has been articulated previously by your Honour, our judicial system remains obliged to work on resolving disputes according to our laws as quickly, inexpensively and efficiently as possible.

In addition to the powerful legal contribution your Honour has made, it is a delight to hear of a Judge in this honourable Court as a guitar-playing, singing, sports-loving, generous and kind person with a diverse life and a broad range of interests and passions.  Your Honour’s colleagues and associates in this Court speak highly of your Honour, noting your approachability and general friendly nature making juniors feel at ease.  Associates and juniors are encouraged to have passions and interests outside work.  They are taught to value their families and to work on leading balanced and diverse lives of their own.  Your Honour’s impact and overall impression can be neatly summed up in the spontaneous reference to me earlier this week by one former Associate of this Court about your Honour simply as, “Such a lovely man, a true social-justice warrior, and I’m very sad that I cannot be there on Friday to show my support and gratitude,” such is the great and genuine influence of your Honour on those who work with and near to you.  Your Honour’s knowledge, insight and good humour from the Bench and from within the halls of this Court will be missed.

In the meantime, your Honour’s Christian faith and commitment, as we have heard, has been a constant source of strength and support now for many years.  Your Honour and Marcia are also devoted to charitable giving, both in time, funds and resources.  I would like to reference one local project in particular that is close to your Honour’s heart, known as 12 Buckets.  12 Buckets delivers valuable one-on-one 
mentoring programs, basketball and debating programs and a university aspiration program to children identified as at risk or disadvantaged from four primary schools in Perth’s northern suburbs.  The 12 Buckets driving principle is that every child should flourish regardless of background and circumstances, and the model has been described by parenting author, education and resilience specialist, Maggie Dent, as an excellent initiative, but shows the power of community for our more-challenged and vulnerable children and a safe circle of community is a key building block to raising resilient kids.

12 Buckets is a project that is very close to the hearts and minds of both your Honour and Marcia and you have both devoted countless resources in time and funds to the success of this program.  It boasts ambassadors in both Tim Winton and Phil Walleystack and its success story continues.  There is also no doubt your Honour, together with Marcia and your family, will continue to make a huge contribution to this project and to your many other charitable endeavours.  Also of note, has already been referenced, is your Honour’s commitment to education in rural Western Australia through your work with Great Southern Grammar School in Albany.  I note a particular matter of significance with the campus having moved location in around the year 2000 to the shores of Oyster Harbour.  Local Nyungar elder, Mr Aiden Eades, spoke at the opening ceremony of the campus and he stated:

The school grounds are of special significance to local Nyungars with the Kalgan and the King Rivers meeting close by.  Never forget that this is Nyungar land, but you are welcome to use it, especially for something like education.  

Having reflected already at various points during this ceremony on the significance of your Honour’s work in the area of native title, the relevance of these comments about the school and its region make a touching connection in your Honour’s life.  Ultimately, on behalf of the Law Society, I am pleased to congratulate your Honour on a very successful judicial career as well as a varied and wholesome spirit and a generous and giving character outside of this honourable Court.  The society and our membership wish your Honour and your family some special time together after your time in this Court and also the very best in your next endeavours, including in continuing in our profession.  In particular, we wish you all the very best in your arbitration practice at local chambers, where parties can bring matters to your Honour to work towards resolution in the confidence of your Honour’s skills, experience, and importantly, the requisite levels of impartiality and in fairness.  May it please the Court.

ALLSOP CJ:   Thank you.  Before calling on Justice Gilmour, may I apologise to the former District Registrar for the Court for over 30 years, Mr Martin Jan, who is here today, and to the Western Australian Solicitor General sitting at the bar table.  I should have acknowledged both of you earlier on.  Justice Gilmour.

GILMOUR J:   Thank you, Chief Justice.  I will adopt, if I may, the Chief Justice’s recognition of the many judicial colleagues across the range of jurisdictions, both 
former and present, who are in attendance today, as well as colleagues of this Court who may be watching by video link from registries around the country and Mr Solicitor and members of the Bar, solicitors, my family and friends.  Thank you all so much for coming this morning.  It means a great deal to me that you did, although this morning’s occasion almost did not happen.  That is a subject I will return to shortly.  

But Chief Justice, Mr MacLiver, Mr Howard, Mr De Kerloy, Mrs Cormann, your remarks have been extraordinarily kind and generous.  I’m particularly pleased that my family almost in their entirety are here today to listen to what each of you had to say.  And I feel that my stocks at home may rise after today even if only temporarily!  That said, I gave an address recently to some young law graduates who were members of The Piddington Society, and the address was titled “Lawyers, Truth and Civility”.  Now, Chief Justice and those at the bar table, you have been more than civil this morning;  however, as to the truth or at least the whole truth and nothing but the truth of what you had to say I will leave to others to judge.  For myself, I was very happy to hear all of it.  You have made today a most memorable one for me and my family.  

May I add a new case, Chief Justice, that I have enjoyed serving under your leadership, which has seen great innovation applied to the work of this Court in many ground-breaking respects, as well as setting a most high standard for judicial excellence.  Now, turning to why you all find yourselves here this morning.  I can tell you that originally I had planned to leave quietly and privately, with no fuss:  just close one door behind me and open another one.  This did not go down very well at home with my darling wife, Marcia, but I stuck to my guns, being a man of conviction, until one evening, she and I and Justice Bromberg – and I think Justice Bromberg is hiding behind me, we were dining out in St Kilda.  Justice Bromberg asked whether I was having a farewell and I advised him that I was not as I did not wish to draw attention to myself.  Well, the normally quiet-mannered Justice Bromberg leaned across the table and said, “Look, this has actually got nothing to do with you.  It is a tradition that is significant in the life of the Court which is an important Australian institution.  It is a Court established under Chapter III of the Constitution and it is also an opportunity for you to finally thank all the people who have helped you to become a Judge and while you were a Judge.”  I looked hopefully toward Marcia, but she smiled and moved in with I thought what was a planned military pincer movement to close off any avenues of retreat, and so it was that I was, loosely described, persuaded.  

Frankly, I should have listened to her the first time.  I have learned over the years that this is one of the paths to success.  Anyway, that is why you are all here, and I do thank you for coming.  And it is with Justice Bromberg’s powerful constitutional admonition still ringing in my ears that I would now like to thank a number of people.  I will begin by thanking Marcia.  You have been, and are, the love of my life.  You’ve been my best friend before and during my time on the Court.  You paid a high price to enable me to do so.  I don’t need to say what the price was, but you paid it without complaint then or since.  Very early in my Judicial career, the wife of 
one of the then Perth Judges who is, I think, sitting behind me, the Judge that is, gave you some advice which was that your most important role, while I was a Judge, was to keep me grounded.  I can say that over the years, you have been steadfast in your pursuit of that objective.  I feel considerably grounded!

I also want to thank my five children, Tracy, Nic, Kathryn, Emily and Joshua, as well as my son-in-law, Stephen, my two daughters-in-law, Verity and Emma, for your support and encouragement.  I am sorry, Nic, that you and Verity cannot be here from California, but you are in spirit.  I appreciate that it has not always been easy having a Barrister and then a Judge as a father or father-in-law.  Family arguments can become terribly technical.  Cross-examination techniques or resort to the meaning of words have, understandably enough, never gone down well.  However, I am, as I think Mr Macliver may have mentioned, or it might have been Mr Howard, very grateful to each of you for the experience I gained as a mediator in your sibling disputes.  I have used those skills most effectively when dealing, infrequently, I am glad to say, with quarrelling and quibbling Counsel appearing in front of me.

Both my parents have now passed away, but I would still like to publicly acknowledge their contribution to my life and my education, which came at great sacrifice to them.  Without their contribution I doubt that I would have reached this position.  I’m delighted and honoured that both the Honourable Robert French AC, a long time Judge of this Court, of course the immediate past Chief Justice of the High Court of Australia, together with two other former Judges of this Court, the Honourable Robert Nicholson AO and the Honourable Michael Lee QC are on the Bench this morning.  I thank you for doing so.

I would also like to make mention of some other quite special people.  I have had nine Associates during my tenure.  I’m so pleased that all of those who live in Western Australia have come today.  They are Tahlia Hall, Julia Moore, Vinh Nguyen, Danielle Bergin, Guru Kugananthan, Christopher Clements and my present Associate, Arisha Arif.  Sophia Khan now lives in Sydney and Emily Gordon is studying at Cambridge.  A Judge’s life, without a good Associate, would be a difficult one, or so I’m told, because I’ve had no such experience.  You were all excellent Associates and I’m most grateful to you for all your efforts.

When I came to the Court in 2006, my Personal Assistant, that is secretary in the old language, was Margaret Bond, and she is here today.  And I thank you, Margaret, for your enormous diligence, patience and productivity over the years.  We were, I think, a busy Chambers.  You were always cool in a crisis and invariably of good humour, and I owe you a great deal.  I was also greatly assisted on a number of occasions by Margaret’s partner, David Oldland, when presiding of Native Title cases in the Kimberley.  David provided on country Court transcripts and services.

My present Executive Assistant, Vicki Schneideman, had large shoes to fill, but I can unequivocally say that she has succeeded in doing so.  And I thank you, Vicki, for all your assistance and the warm personality you brought to this difficult job.  Early this morning I went for a walk, as I normally do, with my black Labrador, Monash.  And, 
Vicki, he has asked me to thank you for all the times when he came into Chambers, when you took him down to the park, particularly with plastic bag duties.  

I would like also to thank the Court’s Registry staff.  Warwick Soden, the Court’s Principal Registrar;  Sia Lagos, who’s sitting in front of me, the National Operations Registrar;  former West Australian Registrar Martin Jan;  Acting District Registrar Russell Trott;  Deputy Registrar Elizabeth Stanley;  Nick Pannell, the Director of Court Services;  and the wonderful team of very helpful Registry staff and Court Officers.  This Court cannot function without you, and I thank you for all your hard work and support over the years.  I must also thank Stephen Williams, the Court Services Coordinator and Admiralty Marshal for organising this ceremonial sitting.  I can tell you it takes a lot of effort and planning, and it is one of many, because there are a lot of comings and goings at the moment in our Court.  

I am really honoured, of course, that so many friends are here.  You all mean so much to Marcia and me, and I am glad that you could share the occasion.  Regrettably, my three sisters, Matti, Adrienne and Fran and their husbands, who live in Scotland, are unable to be here.  They are enjoying the weather in Scotland!  I am deeply indebted to each of them, as well as their friends, for their steadfast love, prayers and encouragement for us as a family in what have been challenging times.  

It has been my great privilege at this Court to work with some of the smartest, most diligent and delightful colleagues. Some have since retired.  From the very start, you made me and, perhaps, more importantly, made Marcia feel welcome and valued.  You have all been wonderful colleagues, but now it is time for me to pass on the baton.  Let me close by repeating something I said when I was welcomed to the Court as a young or, at least, a younger Judge, at a ceremony such as this in December of 2006.  It was this:

Late last night after a fine dinner with the Judges and former Judges of this Court, my eldest son, Nic, just before I went to bed, came up to me in the library and said, “Dad, you know what’s required of you”.  I said, “Nic, what is required of me?”  And he replied, “You are required to act justly, to love mercy and to walk humbly with your God”.  

He was referring to a text from the Book of Micah in the Bible.  Can I say to you, Nic, and to all here, that I have endeavoured to do just that.  And so I thank God for the great honour I have had to serve him and this nation in a small way as a Judge of this Court.  Chief Justice.

ALLSOP CJ:   The Court will now adjourn.

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