AUSCRIPT AUSTRALASIA PTY LIMITED
ACN 110 028 825

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

TRANSCRIPT OF PROCEEDINGS

O/N H-1014783

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

FOR THE WELCOME OF

THE HONOURABLE JUSTICE O’BRYAN

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTIC DAVIES
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE STEWARD
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE ANASTASSIOU
THE HONOURABLE JUSTICE O’BRYAN

MELBOURNE

9.33 AM, TUESDAY, 9 APRIL 2019
ALLSOP CJ:   May I welcome everyone to this ceremonial welcome for Justice O’Bryan.  On behalf of the Court and those present, may I acknowledge the traditional custodians of the land on which we gather, the people of the Kulin Nation, and pay my respects to their Elders past and present.  The Judges of the Victorian District Registry and I today are joined by Justice Greenwood, Justice Rares, Justice Besanko and Justice McKerracher from interstate.

May I acknowledge the Honourable John Cain, the former Premier of Victoria, and Mrs Cain, and the Honourable Susan Crennan AC QC, former Justice of the High Court of Australia, Justice McLeish of the Court of Appeal, Judges of the Supreme Court, former Judges of this Court and members of the Administrative Appeals Tribunal.  Justice O’Bryan, may I also particularly welcome your family members today.  In particular, may I mention and welcome your mother, Margaret;  your wife, Marnie;  your mother-in-law, Mrs Jacqueline Crock;  your sons, brothers, sisters and their respective partners and all family and friends here today.  

Mr Blunn representing the Attorney-General of the Commonwealth.  

MR M. BLUNN:   May it please the Court.  May I join the Chief Justice in acknowledging the traditional owners and custodians of the land on which we meet today, the people of the Kulin Nation.  I also pay my respects to their Elders past and present.  It is a great privilege to be here today to congratulate your Honour on your appointment as a Judge of the Federal Court of Australia.  The Attorney-General, the Honourable Christian Porter MP regrets that his ministerial commitments prevent him from attending the ceremony today.  He has asked, however, that I convey the Government’s sincere thanks for your Honour’s willingness to serve as a Judicial Officer and that I pass on his best wishes for what he trusts will be a long and illustrious career on the Bench.

Your Honour’s appointment to this Court is another significant achievement in an already distinguished career.  The presence of the numerous members of the judiciary and the legal profession here today is a testament to the high esteem in which your Honour is held and the respect you have earned over the course of your career.  May I particularly acknowledge today the Honourable Susan Crennan AC QC, the former Justice of the High Court of Australia, the Honourable John Cain, former Premier of Victoria, other current and former members of the judiciary and members of the legal profession.  

I understand that your wife Marnie and your sons Tom, Conor and Éamon are here today to celebrate this occasion with you.  Your Honour’s appointment to this Court signals another step in what has been by any measure a career of extraordinary distinction.  A full exposition of your Honour’s achievements and contribution to the law would occupy more time than I have today.  Therefore, today I will focus on just a few of the qualities and experiences that have marked your career to date.  These will no doubt shape the important contribution you will make to this Court in the future.

Your Honour grew up in what has been described as a robust and rambunctious family which has a deep and wide connection to the law.  I understand your grandfather, Sir Norman O’Bryan, and your father, Norman O’Bryan, were both Justices of the Supreme Court of Victoria.  In your early years, your Honour attended Xavier College in Melbourne, where you studied applied and pure mathematics, chemistry, physics and theoretical music.  Your Honour retained a strong interest in mathematics and science, majoring in computer science and enrolling in a double degree to continue your studies.  I also believe that those who will appear before you as a Judge in cases concerning copyright and computer software will be surprised at your background and knowledge and understanding of the subject matter.  

Your Honour excelled academically at the University of Melbourne, graduating with honours in your Bachelor of Laws and Bachelor of Science in 1985.  Having commenced your legal career as an article clerk, you started working at one of MinterEllison’s predecessor firms, Gillotts, in 1986.  It quickly became clear that your Honour was an exceptionally talented young lawyer, combining high intellect, faultless judgment and the willingness to work hard.

I’m told that at the age of 24, your Honour presented a paper on the relationship between intellectual property and competition principles.  Among those present were Judges of the Federal Court and members of the Trade Practices Commission, now known as the Australian Competition and Consumer Commission.  After presenting your paper, Professor Bob Baxt, the then Chairman of the TPC, was so impressed that he briefed your Honour to prepare a discussion paper to the Commission on the subject.  Your Honour’s paper was ultimately published by the Commission with full recognition of your role. 

In 1988, your Honour was seconded to the leading UK firm Simmons & Simmons, where you immersed yourself in competition law.  I’m told your Honour was described by one partner as one of the most competent young lawyers with whom he had ever had the pleasure to work.  Two years later, with the pull of Australian beaches too strong to resist, you returned home to Australia.  I’m told your Honour returned with a slightly English accent and newly acquired penchant for the words “super” and “gosh”.  You were immediately appointed as a Senior Associate of MinterEllison, where you became the cornerstone of the firm’s competition and regulatory law practice in Melbourne.  It wasn’t long before the high quality of your work was recognised, being awarded the prestigious Solicitors Prize by the Law Institute of Victoria in 1991.  

The following year, your Honour accepted an invitation from one of Australia’s leading exponents of competition theory, Professor Maureen Brunt, to become a visiting fellow of the Graduate School of Management at the University of Melbourne, teaching competition law to students studying Masters of Business Administration.  Your Honour continued to work on many of Australia’s leading commercial transactions, including the privatisation of Victoria’s electricity industry.  Your Honour instilled and had the confidence of your partners, staff and clients.  In 2002, your Honour joined the Victorian Bar, and in 2011 your Honour was appointed 
to Senior Counsel.  In 2014, your Honour was appointed by the Commonwealth Government to conduct a review of Australia’s competition law policy, which resulted in significant amendments to the Competition and Consumer Act.  

Your Honour has been described as modest despite your outstanding achievements, with a great sense of humour which is accompanied by an infectious laugh.  It has been observed that your Honour believes absolutely in the power and importance of the rule of law, with a great passion for justice.  You are known to be fastidious in your approach to every single case, without ever taking shortcuts.  You will make an excellent Judge.  Among your family, friends and colleagues your Honour has been described as honest, diligent, conscientious and self-motivated, with an ability to maintain grace in challenging situations.  

As most, if not all, in this Court will know, your Honour has an abiding love of the West Coast of Victoria.  I understand your first task each day is to check Swellnet.  Each year, you set aside a few weeks to travel to Indonesia with your sons to surf the coast of Sumatra or Java.  I’m told that when you’re at the family coast house in Lorne you spend time scanning the horizon for the right conditions, taking conference calls while you wait.  Mention must be made of the Collingwood Football Club.  I understand that one Christmas, one of your sons expressed an interest in a Richmond jersey.  I’m told that the black-and-white was unwrapped on Christmas morning.  

Your Honour is known to be thoughtful and compassionate in your approach to complex issues.  I understand that when your Honour speaks of your personal opinions, they are informed by a deep and ongoing engagement with literature, the media and personal connection with people and places.  Your wife, Marnie, remembers the day you were both admitted to practice.  Sir John Young presided over the ceremony and had said to the young lawyers gathered that what is just a case for them would be one of the most important moments in a client’s life.  Your Honour is said to have taken that observation to heart. 

In concluding, your Honour’s appointment to this Court is a testament to your many years of hard work and unwavering dedication to the law and justice.  I have no doubt that you will serve as a Judge of this Court with dedication, intelligence, pragmatism, integrity and commitment to fairness for which you are so admired.  Taken together with your discipline and work ethic, you will make an outstanding addition to this Court.  On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and welcome you to the Federal Court of Australia.  May it please the Court.

ALLSOP CJ:   Thank you, Mr Blunn.  Dr Collins, President of the Victorian Bar.

DR M. COLLINS QC:   May it please the Court.  I appear on behalf of the Australian Bar Association and the Victorian Bar to congratulate your Honour on your appointment to this Court.  Could I also acknowledge the traditional owners of the land on which we meet, the peoples of the Kulin Nation, and pay my respects to 
their elders past and present.  It’s a particular pleasure for me to address the Court today, for two reasons.  First, your Honour and I took silk on the same day, 22 November 2011, although, if memory serves, my celebrations were a little more raucous than those of your Honour’s, which is not saying much.  Secondly, when at law school, your Honour, your wife Marnie, who is, of course, here today, and my partner Leonard, who is here today, were as thick as thieves.  I can’t speak for Marnie, but I can be confident that you approached your studies at law school – how shall I put it – somewhat more studiously than did Leonard.  

Your Honour was born in Melbourne, growing up in Kew and educated at Xavier College.  Your Honour went on to study law and science at Melbourne University, completing a Bachelor of Laws with Honours and a Bachelor of Science degree in 1985.  As Mr Blunn has said, your science degree was in mathematics and computer programming, the latter well ahead of the times, long before the days of the internet and ubiquitous handheld devices with more computing power than the Apollo 11 command module.  Your love of the law, though, won over, and there are obviously complementarities between the immutable logic of mathematics and skilled computer programming, on the one hand, and, on the other, what are, at least in their finest expositions, the logical discipline of both statutory and judge-made law.  

There is also, however, in your Honour’s case, the matter of familial pedigree, without which perhaps the family garage might have been turned, Steve Jobs-like, into an impromptu assembly line for the antipodean answer to the iPhone.  Your Honour’s grandfather was the late the Honourable Sir Norman John O’Bryan KC, a former Justice of the Supreme Court of Victoria.  Your Honour’s father was the late the Honourable Norman Michael O’Bryan KC, who served as a Justice of the Supreme Court from 1977 to 1992, continuing as a reserve Judge until 2004.  

Your Honour’s brothers, Norman and Stephen, are both silks in active practice at the Victorian Bar, Stephen having served from 2013 to 2017 as the founding Commissioner of IBAC, the Independent Broad-based Anti-corruption Commission.  Your Honour’s sister, Catherine, is Associate to Justice John Digby.  Your Honour’s brother-in-law is Associate Justice Nemeer Mukhtar, the first person appointed as an Associate Justice at the Supreme Court in 2009.  It’s wonderful to see so many of your family here today.  

As I said, it’s quite the legal pedigree and, notably, not just in the practice of the law, but in the service of the Australian community through the acceptance of Judicial appointment, a legacy to which your Honour now adds.  Following your graduation from Melbourne University, your Honour undertook articles at Gillotts in 1986 with John Moyer as your principal.  Gillotts merged with Ellison Hewison & Whitehead and with Minter Simpson & Co to become MinterEllison, where you remained as a solicitor and began to develop your renowned expertise in Competition and Consumer Law.

In 1988, your Honour went to London to further pursue your legal career, spending two years at Simmons & Simmons gaining invaluable experience in European 
Competition Law.  Your Honour returned to Melbourne in 1990 to MinterEllison where you were made a partner in 1992.  

Your Honour was called to the Bar in May 2002 reading with Stewart Anderson, now QC.  Just last Friday, Stewart was appointed by the Governor-General in Council to be a Judge of this Court with effect from 6 May.  As is well-known, the relationship between mentors and readers at the Victorian Bar is among the most precious means by which we foster collegiality and excellence in the practice of the law.  No doubt your Honour has benefited greatly from Stewart’s mentorship over the past 17-odd years.  How wonderful, therefore, that your Honour will have had a few weeks on the Bench by the time he joins you next month.  You will be able to return the favour, teaching him everything there is to know about this job.  

Your Honour is dedicated and determined, but understated, ambitious, shy and retiring.  At the start of the Hayne Royal Commission into Financial Services, many media outlets published Who’s Who style articles about the barristers who had been engaged to represent various parties.  The Sydney Morning Herald described your Honour as a “calm under pressure sort of guy” with an “enviable style and presence in court”, picking up on a survey that had been conducted by Chambers and Partners.  I might say, your Honour came out of that better than a number of others.  I was dismissed in the same article as being best known for my work in defamation law.  Harsh but fair.  Another of our colleagues, who I won’t name but may or may not be sitting too close as to my left at the Bar Table, was described as “tall and tanned.”

In the wide consultation, which invariably takes place in preparation for speeches of this kind, the most consistent themes that were repeated about your Honour were your humility and the meteoric rate at which you have achieved your many accomplishments.  Your Honour’s humility was evident in the approach you adopted in learning the trade of being a good barrister.  Your Honour was a very experienced solicitor and partner when you joined the Bar, but, as a junior, you identified leaders from whom you were keen to learn.  You actively sought them out and you encouraged them deftly to take you under their wings, Alan Archibald QC and Neil Young QC being two of the leaders you particularly admired.

When your Honour’s first drafts were returned to you covered in red pen, something that, in settling drafts, had been your own stock in trade as a senior partner at Minters, you didn’t flinch, instead, taking it in your stride, a life-learner committed to being the best you could be.  In turn, your Honour became sought out by many of the most precocious juniors at the Victorian Bar.  Two of them may have leaked to me a recent email exchange in which they discussed your Honour.  One of them, who may or may not be Caryn van Proctor, had toiled for hours over a research task you had allocated to her.  15 minutes after she emailed it to you, your Honour responded simply, “Caryn, that is excellent.”  Four minutes later, the junior, who may or may not be Ms van Proctor, forwarded your Honour’s email to another junior working on the same matter, who may or may not be Geoffrey Kozminsky.  Two minutes later, he responded:

That’s what dreams are made of.  

Seconds later, the first junior responded:

Straight onto the silk application form.

The email exchange ends one minute later with the second junior earnestly agreeing, “I think so.” 

If studying computer programming in the late ’70s and ’80s was not advanced enough, your Honour sought to take a reader before you had reached the requisite minimum of 10 years’ call at the Bar.  That required approaching The Bar Council for an exemption, which was naturally granted, but Nina Moncrief was to be your Honour’s only reader, as you were appointed silk during her reading period and after only nine years at the Bar, an extraordinary achievement.  

As a barrister and as a silk, your Honour made a name as a preeminent practitioner in Competition and Consumer Law.  Your Honour acted in many notable cases.  One such matter was the Pilbara Rail Access case, which involved applications by Fortescue Metals Group for access to four heavy-haulage railways owned by Rio Tinto and BHP.  Fortescue, a mining company operating in the Pilbara, sought to have the railways declared essential facilities in order to enable it to run its own trains on the lines.  This was very significant litigation in which you were involved for the best part of a decade.  More recently, your Honour, led by Alan Archibald QC, acted for the ANZ Banking Group in the bank fees class action which went to the High Court.  It held that the late payment fees charged by ANZ on credit card accounts were not a penalty or otherwise unconscionable, unjust or unfair under the relevant statutory prohibitions, a significant win for your client.  I will stop there.  One benefit of your Honour’s appointment and Mr Archibald’s recent retirement is that I have picked up the final stages of the brief in that matter.  With some limited exceptions, there’s an ethical prohibition on barristers talking publicly about the cases in which they are to appear.  It would be something of a first and quite a bad look for the President of the Bar to be the subject of disciplinary complaint arising out of something said before the Full Court of the Federal Court in a packed courtroom in the course of a Judicial welcome speech.

Your Honour was appointed a member of the panel appointed by the Commonwealth Government in 2014, along with Professor Ian Harper, Peter Anderson and Sue McCluskey, to conduct a review of Australia’s competition laws and policy.  The Harper Review, as it is now universally known, resulted in the enactment of the Competition and Consumer (Competition Policy Review) Act of 2017.  The Harper Review was a comprehensive blueprint for reform.  Its recommendations were the substantive underpinning of the resultant legislation.  Of particular note were very significant changes made to laws concerning misuse of market power.  

As an advocate, your Honour had the admirable but all too rare ability to distil a case to three or four key points, focusing on the strengths of your client’s case and the weaknesses in the other side’s, prosecuting only those points rather than every matter raised.  Your Honour’s approach was always balanced, remaining open-minded, 
maintaining the ability to see both sides of the matter, traits that will serve your Honour well in your new role.  

Your Honour’s humility and modesty are markers of deeply-held Christian beliefs.  Your Honour is a devout Anglican deeply involved in the Anglican Church in Victoria, having held the position of Chairman of the Episcopal Standards Committee for the Anglican Dioceses of Melbourne, Ballarat and Wangaratta.  That committee was established as the professional standards body for bishops underpinning the governance processes of the Anglican Church.

Your Honour is deeply committed to your family.  Along with your wife of over 30 years, Marnie, and your four sons, Tom, Conor, Liam and Eamon, together you are a great team.  Tom and Conor have settled on careers in the law, with Tom working at MinterEllison and Conor at Arnold Bloch Leibler.  Liam and Eamon are both medical students.  Liam is not here today:  he is spending six months at Oxford University undertaking a research project.  Eamon is in his penultimate year studying medicine at Melbourne University.  Despite being totally outnumbered by boys, Marnie manages all of you, but particularly your Honour.  I’m told that when your Honour had to fly to San Francisco to interview experts for the Visy and Amcor class action defence, at Marnie’s insistence, you had to go out and buy yourself a whole new wardrobe before the trip, so unimpressed was Marnie with your proposed choices.  It would be remiss of me too not to mention your Honour’s support for Marnie as she undertook and successfully completed her PhD thesis, a study of the lived experience of Aboriginal and Torres Strait Islander students in Australian boarding schools.  Together, you and Marnie have a profound commitment to addressing the disadvantages faced by Australia’s first people.  The learnings from Marnie’s PhD thesis are already shaping improvements in educational practices for Australia’s indigenous communities.

Mr Blunn has mentioned Collingwood.  I shall pass over that.  He has also mentioned surfboards.  I shall pass over that.  But for a generally quiet and reserved person, your Honour has chosen one other unexpected hobby.  You’re a very good guitarist, having played in a number of bands with friends, possessed of a deep love for blues and roots music.  But this creative artistic flair seems to have been lost on your wife, Marnie.  Giving evidence as a witness in a recent defamation case brought by a well-known Australian actor, who’s also a close family friend, Marnie said in answer to a question about how you knew the applicant and his wife:

We’ve been privileged to go to many dinner parties at their house and many parties at their house, and for us, coming from a pretty staid, boring professional kind of world – 

Senior Counsel for the applicant cut her off, “Slightly offensive to me,” he said.  Marnie:

Slightly offensive to all the lawyers in the room.  I’m sorry.

Senior Counsel:

Well, your husband is a barrister.

The presiding Judge interjecting:

But realistic.

The Australian community is fortunate that practitioners of your Honour’s experience and talent are prepared to accept appointments to judicial office.  Preparedness to do so is a mark of commitment to public service in the interests of the administration of justice shared by all those who sit on this Court which in no small part furthers Australia’s enviable worldwide reputation as a country wholly committed to the rule of law.  On behalf of the Australian Bar Association and the Victorian Bar, I warmly congratulate your Honour, and I wish you long, satisfying and distinguished service as a Judge of this Court.  May it please the Court.  

ALLSOP CJ:   Thank you, Dr Collins.  Mr Ridgeway, Law Council of Australia.  

MR S. RIDGEWAY:   May it please the Court.  It is an honour and a pleasure to speak on behalf of the Law Council of Australia and the Law Institute of Victoria to welcome the appointment of his Honour Justice Michael O’Bryan to this Court.  In particular, I would like to thank the President of the Law Council of Australia, Mr Arthur Moses SC, who is presently overseas on official duties and sends his apologies for the privilege I have of speaking today.  

Your Honour has had a distinguished career, particularly in competition and consumer law, which your Honour may fondly remember as trade practices law in the old jargon.  As I will elaborate, apart from your Honour’s success as a practitioner, a number of your Honour’s contributions to date in relation to that field of law will be remembered very fondly by fellow practitioners.  

But first, to hark back, your Honour was first admitted to practice in 1987, practised as a Solicitor in London from 1988 to 1990 but became a partner of MinterEllison back in Australia in 1992.  If these dates are correct and my arithmetic has not failed me, then your Honour became a partner of MinterEllison in what sounds like record time.  Certainly it was early in your Honour’s career that your Honour became known as one of the leading practitioners in competition and consumer law in Australia.  This was also reflected in your Honour’s very early acceptance as a member of the Trade Practices Committee of the Business Law Section of the Law Council of Australia.  

With apologies, your Honours, I have not been able to establish when your Honour was invited to join that committee, the largest and most active of the committees of the Business Law Section, but it must have been the early to mid-nineties, as by the late nineties your Honour was appointed National Chairman of the Committee.  This was another notably early milestone, as the Chairman’s role is regarded by senior practitioners in the field as important and prestigious.

The absence of records, again, does not permit me to be specific about the dates when your Honour served in the Chairman role, but the memories of fellow members about the extent and quality of your contribution are undiminished.  Your Honour’s reputation as a tireless worker was by then well established.  That contribution continued, largely unabated, after the end of your term as Chairman.  You remained a key figure and contributor to the policy, liaison and reform work of the Committee for more than decade afterwards.  Your Honour’s influence in this area over the years is well recognised, notwithstanding your inclination towards personal understatement.

Your Honour has also been a speaker and moderator on many occasions at the leading Competition and Consumer Law conferences, to use the modern prosaic terminology.  This included the annual workshop of the Law Council’s Competition and Consumer Committee, as it is now known:  the main event on the Trade Practices Law calendar.  I understand that in more recent years, when approached to speak at these conferences, your Honour was apt to say, with trademark modesty, words to the effect of, “I think people have heard enough from me.”  Fortunately, we can now look forward to an enforced period of detailed deliberation and comment from your Honour. 

A number of major corporations were disappointed when your Honour was called to the Bar in 2002, but your constant engagement in many of the leading Competition and Consumer Law matters reflected the pleasure of Solicitors and Senior Counsel having access to your knowledge and expertise in the role of Junior Counsel.  Your Honour’s involvement in the landmark matters continued apace, albeit at another level, following your Honour’s appointment as Senior Counsel in 2011.  

Turning briefly away from your Honour’s professional expertise, I understand that your Honour has had some skill and ability as a runner.  Some years ago, in the course of your Honour’s involvement in a hearing in Perth, you went for a run around the foreshores of the Swan River with an executive of the client mining company, a person with an engineering background who had some prowess himself as a runner.  With the competitive instincts of these two participants, the run turned into a bit of a race.  I believe that the client was left behind near the end of the run and was later heard to have remarked that he did not think a lawyer would be able to run that fast.  Now, there was no instructing solicitor present during this counsel-client interaction, but I expect that the only client instruction that might have been given was, “Please slow down.”  

Arguably, your Honour’s greatest contribution to competition law so far came with your membership of the panel appointed by the Federal Government in 2014 to conduct the Competition Policy Review, now commonly known as the Harper Review.  The review dealt with a number of matters of executive policy as well as reform of competition law.  However, Professor Harper, the Chairman of the review panel, freely volunteers to those that ask that those parts of the recommendation in the final report that dealt with legal matters were largely attributable to your Honour.  

Notably, most of the recommendations about reform of the legislation were subsequently accepted by the Government and have been enacted – admittedly, not all precisely in the terms recommended by the panel.  Some parts of the recommendations and reforms have also attracted significant controversy.  Nevertheless, it is widely recognised that the review was one of the most thorough, principled, decisive and practical reviews of competition law that has been undertaken.  Even the apparently less significant changes were met with some pleasure.  Solicitors and their corporate clients rejoiced in your Honour’s success, where many before had failed, in convincing the Government to remove the “per se” third line forcing prohibitions from the Act.  

In conclusion, the hallmarks of your Honour’s career to date have been great expertise, tireless dedication and wise counsel.  Your Honour is also renowned, particularly among your friends and colleagues in the Law Council and the Trade Practices community more generally, for unfailing courtesy, diplomacy and good humour.  We look forward to the great things that will be achieved when your Honour brings these qualities to bear as a Judge of this honourable Court.  You have our heartiest congratulations and warmest wishes.  May it please the Court.

ALLSOP CJ:   Thank you, Mr Ridgeway.  Justice O’Bryan.

O’BRYAN J:   Thank you, Chief Justice, distinguished guests and friends.  Thank you for giving up your valuable time to attend this welcome this morning.  I am honoured to have you all here.  

Mr Blunn, Dr Collins, Mr Ridgeway, I am personally delighted that each of you were able to appear and address the Court today.  Our professional lives go back many years.  Mr Blunn has instructed me on many cases, particularly for the ACCC.  Matthew, it has always been a pleasure working with you, and you serve and represent the Australian Government Solicitor with very great distinction.  As is common at the Bar, Dr Collins and I have been opponents in our professional lives but enjoy a close personal friendship.  Dr Collins has never refused a difficult brief and, as displayed today, can make a losing brief appear quite attractive.  Mr Ridgeway and I have also shared a long journey practising in the field of competition law, and he has also instructed me in a number of cases.  Mr Ridgeway is a very fine after-dinner speaker,, where stories become taller with the retelling –a skill that he displayed today.  

I am particularly delighted that so many members of my rather large family could be here today.  May I first acknowledge my mother, Margaret O’Bryan, who is as familiar with a courtroom, I think, as any person present here today.  When Mum and Dad began dating in 1949, my grandfather had already served on the Bench for 10 years and was to continue to serve for another 16 years after that.  Mum has journeyed alongside my father’s career at the Bar and then on the Bench and also the careers of three of her sons at the Bar.  Mum even served as Dad’s Associate for a few years.  I think she has fulfilled the requirements for an honorary law degree.

All five of my brothers and sisters are here today.  Only two of them, Jenny and Rob, had the wit and imagination to find careers beyond the Law Courts.  My sister Cath has been managing various Justices of the Supreme Court since 1986.  She now has the Honourable Justice Digby in her care.  My brothers Norman and Stephen require no introduction to this audience.

I cannot say that I grew up through a school of hard knocks.  Like Christopher Pyne, I don’t have a log cabin story, although my outdoor activities extend a little further than picking the odd lemon for the gin and tonic.  Life in a large Catholic family of predominantly Irish heritage tends to be robust.  It breeds resilience and provides potent incentives against taking yourself too seriously.  And the same is true of a family of four sons.  My wife Marnie and three of my four children, Tom, Conor and Éamon, are here today.  And as you’ve heard, my fourth son is currently studying in England.  I was hoping he might be present by Skype, but I think technology has probably failed us.  My sons keep me exercised both intellectually and physically.  I’m immensely proud of each of them.  These days they mostly win the sporting contests.  But I won’t yet concede defeat on the intellectual front, whatever the record may show.  

Marnie and I met at Melbourne Law School, a good foundation for any marriage.  On our engagement, the late John Phillips, at that time a Justice of the Supreme Court, wrote to Marnie and me commending the practice of lawyers marrying lawyers in order to prevent outsiders penetrating the mystique of the profession and learning our secrets.  During our first year in legal practice, we enjoyed a weekly ritual of dinner at Pellegrini’s followed by a few hours at Fitzroy Legal Service under the tutelage of John Faine.  Quintessentially Melbourne.

Marnie had the abilities and heart to leave commercial legal practice behind and dedicate her career to education, in recent years working to advance educational opportunities and outcomes for Indigenous youth.  It’s vitally important work.  She’s the centre of our family life and the reason I am here today.  I’m also particularly pleased to have many members of Marnie’s family here today as well:  her mother Jacqueline and her brothers John and Peter.  

My parents have always surrounded themselves with friends who have been dedicated to public service.  I’m honoured that the former Premier of Victoria, the Honourable John Cain, and his wife Nancye, were able to attend today.  John and Nancye have been very close personal friends of my parents.  Indeed, Mum tells me that her first date with Dad was at John’s home.  Dad and John continued playing tennis together long past the time that Dad had any mobility whatsoever on the tennis court.  I’m also honoured that the former County Court Judge, the Honourable Eugene Cullity, and his wife Shirley were also able to attend today.  Again, the Cullitys have been very close personal friends of my parents.

As you’ve heard, I entered the Melbourne Law School as a student of mathematics.  My English grammar and writing skills were severely undeveloped, earning me a D in HSC English.  Fortunately, I did a little bit better in pure and applied maths and 
physics.  And I benefited from what must have been very lax entry standards to the law school in those days.  I owe a considerable debt of gratitude to my brother Norman who, over many years, corrected my law assignments, solicitor’s letters and court submissions.

I practised as a solicitor for some 16 years.  I was extremely fortunate to be tutored and mentored by John Steven, who is present today and, indeed, remains a partner at MinterEllison practising in corporate law, his 40th year at the firm.  Despite disguising his character behind layers of irreverent humour, John has unfailing instincts for right and wrong conduct as a lawyer and the strength of character to ensure that the right course is always followed.  Such convictions made MinterEllison a very fulfilling place to work.  

Despite two brothers at the Victorian Bar, I ultimately felt called to do the same. In my time at the Bar I was very fortunate to have two outstanding mentors:  Neil Young QC and Alan Archibald QC.  I’m delighted that Neil was able to attend today.  Neil taught me the value of meticulous preparation and organisation.  I copied Neil’s method and endeavoured to make it my own.  Unfortunately, Alan was unable to attend today, but I will acknowledge publicly what I’ve said to him privately.  Alan taught me to have the courage to select the best point, put the argument with simplicity and brevity and not trouble the Court with lesser points.  It was an excellent model to follow, although courage may have failed me from time to time.  Since taking silk, I’ve had many juniors.  Some taught me a little law.  All identified shortcomings in arguments I was proposing to advance.  I’m very grateful for all the assistance I received, and I now make a public apology for all of my excessive alterations to your draft submissions.  You will all be very welcome in my Court, although I may still correct your submissions.  

Finally, I would like to thank the past and present Judges of this Court for the gracious manner in which they’ve received my submissions over the years.  Some cases went better than others.  Some cases were better than others.  But with very few exceptions, in my experience, trials in this Court are conducted efficiently and with good grace.  I’m delighted to have the opportunity to serve the community as a Judge of this Court.  It’s a Court of broad jurisdiction spanning many aspects of commercial law, corporate law, competition and consumer law, taxation law, intellectual property law, through to laws having significant social implications, including industrial relations, migration law and native title.  

Across all fields, in my experience, the Court is dedicated to determining disputes justly, efficiently and with respect for all litigants and all practitioners.  No doubt that’s achieved through the careful oversight by the Chief Justice.  Father Frank Brennan SJ, who was unable to attend today, kindly sent me a copy of a speech that his father, the Honourable Sir Gerard Brennan, gave two years ago to mark the 40th anniversary of this Court.  Sir Gerard recounted an event he remembered, sitting on a Full Court with Justices Deane and Fisher, when, picking up Sir Gerard’s words:

The Chief Judge unostentatiously made his entrance into the public gallery.  I had not known a Chief Justice to visit a sitting Court before, and I wondered whether we should acknowledge his presence.  After hurried and quiet consultation, we decided not to do so.  After all, he was merely doing the rounds to see whether his Judges were able to do the job.

I don’t know whether the present Chief Justice’s oversight extends to courtroom visits from time to time.  

I don’t recall my father’s welcome to the Supreme Court in 1977.  My sister Cath recently sent me a copy of the speech Dad gave at his welcome.  I must have attended because Dad referred to his younger children being present, commenting that he had successfully traded a morning out of school for a haircut.  At the conclusion of his speech, Dad quoted from my grandfather’s retirement speech that had been given some 10 years before, in which my grandfather had remarked that the best qualities in a Judge are kindliness and industry.  Like my father before me, I shall try myself to follow that rule.  

Thank you all again for being present today.  I hope to see many of you in my Court from time to time.

ALLSOP CJ:   The Court will now adjourn.

____________________