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TRANSCRIPT OF PROCEEDINGS

O/N H-1899355
FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

TO WELCOME THE HONOURABLE JUSTICE DOWLING

THE HONOURABLE DEBRA MORTIMER, Chief Justice
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE RANGIAH
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE O’BRYAN
THE HONOURABLE JUSTICE JACKSON
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE McELWAINE
THE HONOURABLE JUSTICE McEVOY
THE HONOURABLE JUSTICE HESPE
THE HONOURABLE JUSTICE BUTTON
THE HONOURABLE JUSTICE NESKOVCIN
THE HONOURABLE JUSTICE DOWLING

MELBOURNE

9.31 AM, FRIDAY, 1 MARCH 2024

Copyright in Transcript is owned by the Commonwealth of Australia.  Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval from the Federal Court of Australia.
MORTIMER CJ:   A very warm welcome to the Court’s second ceremony of this kind this week.  Justice Dowling was sworn in on 9 February this year.  It’s a time of great optimism and energy, to be welcoming two talented new colleagues in one week, and another marathon runner.  The Commonwealth Law Courts building sits on land that is generally recognised as the country of the people of the Eastern Kulin Nation.  Traditionally, the Eastern Kulin Nation extended around Port Phillip and Western Port and up into the Great Dividing Range and the valleys of the Loddon And Goulburn Rivers.  Until all the claims relating to this country under the Native Title Act are resolved, this Court is not able to invite participation by appropriate First Nations representatives in ceremonies such as this.

Nevertheless, the Court still can, and I do pay our respects to the people of the Eastern Kulin Nation and to their ancestors and their elders.  We can, and I do acknowledge the challenges facing the Australian community in our relationship with First Nations peoples, including how First Nations peoples are treated by the justice system.  We’re honoured to be joined today by Justices of the High Court, former Justices of this Court, the Chief Justice of the Federal Circuit and Family Court, many members of Counsel and Solicitors, members of the Academy, and a wide range of our colleagues from Federal and State Courts and Tribunals.  It is a testament to Justice Dowling’s professional standing to see such a distinguished audience here today.

It’s important to acknowledge the presence of Justice Dowling’s family and friends.  His immediate family well understand the demands and challenges of busy professional lives. It’s easy to conceive of days like today as all about Lawyers, when, of course, none of us can achieve much at all without the support and encouragement of those closest to us, many of whom might, to this day, consider we’re all a little bit crazy, to be members of this profession.  Today is as much a day for family and friends as it is for professional colleagues.  Justice Dowling, on behalf of the Judges, the Registrars and all the Staff of the Federal Court, I congratulate you on your appointment, and I’m confident you will serve the Australian community with distinction.  The Attorney-General for the Commonwealth, I invite you to address the Court.

THE HON M. DREYFUS KC MP:   May it please the Court.  First, may I acknowledge the traditional custodians of the land we’re meeting on, and recognise and pay my respects to any Aboriginal and Torres Strait Islander peoples who are here today.  It’s a great privilege to be here to congratulate your Honour on your appointment as a Justice of the Federal Court of Australia, and I would also like to take this time to thank you, on behalf of the Australian Government, for your Honour’s willingness to serve as a Justice of this Court.  The Government extends its best wishes for your career on the Bench.  Your Honour’s appointment to the Federal Court has been warmly welcomed by the Australian legal community, and it is another success in a distinguished career.

That so many of your colleagues in the legal profession are here today is testament to the high regard in which your colleagues hold your Honour.  May I particularly acknowledge the Honourable Justice Michelle Gordon AC – Justice of the High Court of Australia, the Honourable Justice Simon Steward – Justice of the High Court of Australia, the Honourable Chief Justice Will Alstergren AO – Chief Justice of the Federal Circuit and Family Court of Australia, the Honourable Peter Gray AM – former Justice of the Federal Court of Australia, the Honourable Anthony North KC – former Justice of the Federal Court of Australia, the Honourable Shane Marshall AM – former Justice of the Federal Court of Australia, the Honourable Iain Ross AO – former Justice of the Federal Court of Australia, other current and former members of the Judiciary and members of the Legal Profession.

May I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you.  Your wife, the Honourable Judge Julie Clayton, of the County Court of Victoria, is here today with your children, Ruby, Nina, Grace and Lily.  We are also joined by your parents, Jean and Ron, and members of your extended family.  I’m told that as a child, your Honour displayed musical talents and delighted audiences with your performances in a number of bands and a musical stage show.  However, we are pleased that your Honour decided to swap a career on the stage for the much more rewarding and entertaining theatrical art of the Law.  Your Honour attended Monash University, and in 1987, graduated with a Bachelor of Arts, and you then went on to complete your Bachelor of Laws in 1989.

Your Honour commenced your career as an Articled Clerk with Purves Clarke Richards, and then as a Solicitor of the same firm, following your Honour’s admission to the Supreme Court of Victoria in 1991.  Your Honour was admitted to legal practice in England and Wales in 1993, and from 1993 to 1994, you worked as a Legal Researcher with the Lord Chancellor’s department in London.  Fortunately for us, your Honour returned to Australia and you were a Solicitor with Maddock, Lonie & Chisholm until 1995.  From 1995 to 1996, your Honour was an Associate to then Justices of this Court, the Honourable Anthony North KC and the late Honourable John Keely QC.

After your Associateships, you resumed practice as a Solicitor at Slater and Gordon.  Your Honour quickly developed a reputation for being careful and diligent in your legal work and advice.  During that time, you met your wife, the Honourable Judge Julie Clayton, whose family had immediately thought that you were destined to be a judge.  How right they were.  In 1999, your Honour was called to the Bar, and in 2017, you took Silk.  At the Bar, your Honour practiced predominately in the areas of Industrial and Employment Law, as well as Administrative, Disciplinary and Discrimination Law.  Your Honour’s dedication to serving the Bar is evident from your time as a member and on the board of directors of the working group for a large cohort of barristers setting up new chambers.

This involved an enormous commitment of time and energy, on top of working in an incredibly busy practice.  Your Honour has appeared in numerous trials and appeals in the Federal Court, the Fair Work Commission and other Courts and Tribunals.  
I’m told that a hallmark of your Honour’s appearances was meticulous preparation – always endeavouring to assist the Court, while also maintaining your characteristic charm and wit.  While at the Bar, your Honour attained a Master of Laws, from the University of Melbourne Law School in 2009.  You were also a Senior Fellow at the University of Melbourne Law School from 2015 to 2019.  Your Honour’s dedication to serving the Bar and supporting equal access to justice for all is evident from your service on various boards between 1999 and 2022.

Some of your roles have included Secretary of the Industrial Bar Association, Member of the Federal Court Employment and Industrial Users Group and a Member of the Victorian Bar Pro Bono Committee.  It’s with great pleasure that I now turn to recognise a few of your Honour’s personal qualities.  Throughout your career, your Honour has been known as extremely hard-working, unfailingly polite, modest and generous with your time and knowledge.  Many members of the Bar have benefited from your wisdom and counsel.  Your Honour supported your colleagues and was never too busy to help, even if that meant staying in chambers well into the night to catch up on your own work.  

Your Honour’s commitment to serving your local community is also evident from your roles in a local football club and as a board member of a not-for-profit arts organisation, which aims to provide art spaces for people who are otherwise shut out of the art world.  These traits hold you in good stead for judicial office.  Your Honour’s passions extend beyond the legal profession and service to the community.  Family is of great importance to your Honour.  As a doting and patient father of four daughters, your Honour regularly partook in their childhood games, such as tea parties, using the fine china that you have moulded yourself from playdough. 

Your Honour’s musical interests include playing guitar, seeing alternative rock bands, and I’m told you own an impressive vinyl collection.  In addition to your musical interests, I’m told your Honour loves to surf and swim.  I’m also told that your Honour is a devoted Western Bulldogs fan, and the 2016 premiership was a real highlight which you enjoy rewatching.  Sadly, as a St. Kilda supporter, I have to wind back the clock to 1966 to share a similar enjoyment.  Your Honour’s appointment to the Federal Court acknowledges your dedication to the law and accomplishments in the legal profession.  And your Honour takes on this judicial office with the best wishes of the Australian legal profession.  It’s trusted you will approach this role with exceptional dedication to the law as you have shown throughout your career.  On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and welcome you to the Federal Court.  May it please the Court.  

MORTIMER CJ:   Thank you, Mr Attorney.  Mr Dunning, President of the Australian Bar Association. 

MR P. DUNNING KC:   Justice Dowling, Chief Justice Mortimer, Justices of the Federal Court, retired judges of this Court, Justices Gordon and Steward of the High Court, Chief Justice Alstergren, 
Justice Niall of the Victorian Court of Appeal, ladies and gentlemen.  It is my privilege and pleasure in equal measure on behalf of Australia’s more than seven thousand barristers, Justice Dowling, to offer our congratulations on your Honour’s well deserved appointment.  The Attorney for the Commonwealth has spoken eloquently to the personal, professional qualities your Honour brings to this task.  It is always a day of pride for the Bar when one of its own, so well deserved, takes an appointment such as this.  And on behalf of all of our members, we offer congratulations.  It is noteworthy on a day like today to acknowledge the sense of public service that comes with your Honour’s commitment to the taking of this Court.  

Your Honour has left a busy and vibrant practice at the Bar with all of the highs and lows that come with that for a task that is distinctly one of public service.  And it is appropriate that it be acknowledged on a day like today.  Part of that public service will be the exercise of this Court’s important jurisdiction in its interactions with First Nation’s people.  And the Chief Justice has today and previously spoken of the interactions of First Nation’s peoples with our justice system.  It’s an important part of what this Court does and judges generally to bring peace in that relationship.  And we acknowledge the personal skills that your Honour will bring to that.  Of course, nobody arrives at a day like today without the love and support of family and friends.  A busy and vibrant, as I have said, practice at the Bar requires much support around you.  Your Honour’s family and friends should be justifiably proud of your appointment today and the success it marks and the career that you are moving from.  

But your Honour is, in every sense, a product of the Victorian Bar.  And today is properly a day for the Victorian Bar who are rightly proud in your Honour’s appointment.  And on that note, I shall wish your Honour well and for a long and happy career on the Court and pass to my friend, Ms Schoff.  

MORTIMER CJ:   Thank you, Mr Dunning.  Ms Schoff, President of the Victorian Bar Association. 

MS G. SCHOFF KC:   May it please the Court.  Indeed, we are proud.  And it is my great pleasure to appear on behalf of the Victorian Bar to welcome your Honour, Justice Dowling, to this honourable Court.  I, too, acknowledge the traditional owners of the land on which we meet, the people of the Kulin Nation.  I pay my respects to their elders, past and present.  Your Honour brings to this Court a wealth of experience in the federal jurisdiction, where you have practiced as a barrister for almost 25 years.  Your appointment also brings you back to the Court where, no doubt, you first heard the call of the Bar.  As we have heard, as a young lawyer, you were employed in this Court, first as the associate to the late, the Honourable John Keely QC, and then to Justice Tony North.  

In 1996, after those associateships, you commenced at Slater & Gordon, where you quickly became a senior associate.  There, you had an interesting and varied practice.  You represented Humphrey B. Bear, in his dispute with an imposter bear.  In 1999, you commenced life as a barrister, reading with Herman Borenstein KC, with whom you were often briefed and have built a great friendship, which as in the best 
traditions of the Bar, has endured, even though you have in recent years often been opposed.  You built an impressive career as a barrister, taking silk in 2017 and establishing yourself as one of the nation’s leading senior counsel in industrial law.  Two cases illustrate your command of this jurisdiction.  The first related to a matter in which employers were hoping to cut weekend and holiday penalty rates for hospitality employees. 

Acting for the United Workers Union, and with Kate Burke as your junior, you set about corralling over 100 witnesses over more than 40 hearing days before the Full Bench of the Fair Work Commission.  Witnesses included not just employees and bosses, but also psychologists, labour economists and many other types of experts.  You managed to straddle employment law as well as exploring the more philosophical territories, such as the value of time off and the sanctity of weekends, ultimately avoiding significant cuts to the rates of those workers you represented.  The bitter irony, recalls Ms Burke, is that to secure that outcome, you worked every weekend, reading about how working nights and weekends will ruin your physical health, your mental health, your equilibrium and your marriage.  

Fortunately, your Honour survived the case unscathed.  The other more recent case was a class action involving the unpaid overtime of junior doctors.  With Kate Burke and Liz Brumby as your juniors, you successfully persuaded the Federal Court that a Melbourne hospital had underpaid junior doctors over six years, paving the way for further class actions estimated to be worth $250 million in unpaid overtime.  You have also frequently appeared before this Court’s Full Court, including to argue for right of entry provisions to worksites for union officials and matters to do with redundancy entitlements.  Your juniors describe you as a patient and generous leader, who has always taken the time to talk through the case and its strategy.  As a barrister you have always been detailed, patient and thorough.  

But your polite and charming manner can disguise a steeliness, that causes witnesses to concede point after point under cross-examination.  As one solicitor put it after encountering your work, “that was like watching a cobra hypnotise a mouse”.  You have mentored four readers, James Hooper, Siobhan Kelly, Craig Rossey, and Jassir Bakri.  You have always done everything you can to teach and help them.  You have also been a much loved colleague and mentor to those in chambers on the thirteenth floor of Castan, and before that, in Melbourne Chambers.  You are a founding member and former president of the Industrial Bar Association, where you have made many fond friendships over the years.  And you have meanwhile found time to serve on many Victorian Bar committees, as a senior fellow at the University of Melbourne’s law school, and you were also a member of the Federal Court of Australia’s employment and industrial relations national practice area user group. 

As we have heard, music has always been important to you.  As a school boy, you loved the sounds of the Sunny Boys, Painters and Dockers, Huxton Creepers and TISM.  You soon began playing an electric guitar and formed a group known as Biggie Rat and the Itchy Brothers.  At Slater & Gordon, with Professor John Howe and others, you formed another band called the Spud Boys.  And although not strictly a band, you are a member of a group of friends and live music enthusiasts who go to 
gigs and call themselves the Rock Crew.  You have continued to play your electric guitar, a Johnny Marr Fender Jaguar, according to your Industrial Bar colleague and friend, Malcolm Harding SC, who maintains your love of underground 80s music, including The Smiths, remains strong.  

This you share with your partner of 26 years, her Honour Judge Julie Clayton of the County Court, and your four daughters, Ruby, Nina, Grace and Lily.  Your family, including your parents, who are all in Court today, must be extremely proud of you.  We trust your new role will not curtail your many outdoor endeavours, which include swimming at Fitzroy Pool, competing in ocean swims, surfing and cycling, and following the exploits of your beloved Western Bulldogs, with long time friend and collaborator, Hayden Stephens.  Your Honour’s calm, considered, courteous and careful approach will see you thrive as a judge of this Court.  On behalf of the Victorian Bar, I wish your Honour a long and distinguished service as a judge of this Court.  May it please the Court. 

MORTIMER CJ:   Thank you, Ms Schoff.  Mr Hibbins, president of the Law Institute of Victoria and representing the Law Council of Australia.  

MR M. HIBBINS:   May it please the Court.  I, too, acknowledge the traditional custodians of the land that we gather on today, the people of the Kulin Nation.  And more particularly, the peoples of the Eastern Kulin Nation.  And I pay my respect to elders past, present and emerging.  I appear this morning on behalf of the Law Council of Australia and the Law Institute of Victoria, representing the solicitors of this State to welcome your Honour as a judge of this Court.  Greg McIntyre, president of the Law Council, regrets that he is unable to attend today, but he sends his congratulations on your appointment and wishes you all the best in the new role.  Nonetheless, it is my great pleasure to appear before this Court today to welcome your Honour.  

Your Honour has had a long and distinguished career as a barrister since being called to the Bar in 1999 and being appointed a senior counsel in 2017.  As we have heard, you began your legal career in 1991, having been admitted to practice as a solicitor in the Supreme Court of Victoria after studying arts and law at Monash University.  You completed your articles at Purves Clarke Richards, which has since become Gadens.  And in 2009, you attained a Master of Laws from the University of Melbourne.  You continued to practice, predominantly in the areas of industrial and employment law, and related areas of administrative, disciplinary and discrimination law.  Last year, you were ranked as a leading employment lawyer and recommended workplace health and safety barrister in Doyles Guide, having appeared regularly in this Court, as well as the Fair Work Commission and in other courts and tribunals around the country. 

You somehow, amongst all of this, found time to teach labour standards under the Fair Work Act as a senior fellow at the University of Melbourne law school.  And to also serve as the former president of the Industrial Bar Association.  Everyone is extremely happy for you and hardly surprised at your appointment, but everyone is also sad to lose you from the Bar, as we have just heard now.  Your appointment is 
what one solicitor describes as a hooray boo situation.  One word comes up repeatedly with those that we spoke to: calm.  Your friend, fellow surfer and director of Hayden Stephens & Associates, Hayden Stephens, who you met at university, says you quickly developed a reputation for being careful and diligent in your legal work and advice.  

Hayden says you’re a consummate professional and you are often surprised when others are not as disciplined as you might expect.  When you joined Slater & Gordon in the mid-1990s, you quickly earned the respect of both sides of the fence, from union leaders and their opponents.  It was at Slater & Gordon that you met your wife and now county court judge, her Honour Julie Clayton.  She believes you have the right temperament and attributes for a judge: modest, polite and an excellent lawyer.  Head of industrial law at Gordon Legal, Marcus Clayton, no relation to Julie, agrees.  He says, “your Honour is a really good bloke.  Polite, but also strong and firm in your legal advice”.  You are more cunning than is apparent from your demeanour, according to Marcus.  He adds that your departure is a great loss to the Industrial Bar, having briefed you on many matters over the years, including quite recently on intra-union disputes, which require your specialist skills. 

You travelled extensively in your national practice.  Luke Tiley, a principal at Hall Payne Lawyers, an accredited specialist in workplace relations law, contributed to your interstate travel.  The first time you went to Hall Payne’s Brisbane premises, the whole office was impressed with your thin ties and faux-musician aesthetic.  He says, no barrister, even as a junior counsel, has ever made him work so hard.  Silks always want to work with you because you have left no stone unturned, talking to every witness and researching every legal point.  As a result, the solicitors who briefed you were exhausted, but also left with total confidence in your preparation for trial.  The words calm and hard working come up again when we spoke to Gordon Legal partner, Andrew Grech, who also welcomes your excellent appointment.  

Having first worked with you 25 years ago at Slater & Gordon, he has briefed you extensively in class actions over the last few years and says you are a terrific lawyer and person.  Your Honour is known to allow juniors and instructing solicitors to make their contributions heard and their ideas are better when you let them flourish.  Andrew is apparently intimidated as much by the quality of your intellect as by the quality of your vinyl LP collection.  We understand and we have heard that you aspire to surf more and play better music, but according to Andrew, your skills as a lawyer more than make up for any perceived deficiencies in these areas.  You are known to be most generous in sharing your knowledge and experience with those around you.  Again, always calm, measured and articulate.  

And it would be remiss of me not to mention the one area of your life where you are not always so calm.  When it comes to the Footscray Football Club, the mighty Bulldogs.  I gather, and we have heard, this is a passion and an integral part of your family life, emanating from your parents who are both here today.  Your maternal grandfather was treasurer for Footscray when it won its first premiership in 1954.  And your father adopted the club when he worked at the Newport railyards.  I have it 
on good authority that your eldest daughter, Ruby, was born a Bulldog and has a certificate to prove it.  According to Hayden Stephens, you are often seen at Lorne Point, paddling your loyal McTavish surfboard, adorned with the Bulldogs’ colours, awaiting the next wave.  Everyone agrees that yours is a truly great appointment;  a testament to your intelligence and generosity towards colleagues, friends and across the legal community. 

We thank you for your service to our community, we wish you a long and satisfying career as a justice of this Court, and we wish all the best to you and your family for this next chapter in your life in the law.  May it please the Court. 

MORTIMER CJ:   Thank you, Ms Hibbins. Justice Dowling, I invite you to reply. 

DOWLING J:   Thank you, Chief Justice.  Justice Gordon, Justice Steward of the High Court, Chief Justice Alstergren, current and former judges of this Court and other courts, distinguished guests, members of the profession, family and friends.  

I also acknowledge the traditional owners and custodians of the land on which we meet, the peoples of the Kulin Nation.  I pay my respects to their elders past and present.  I extend those respects to all Aboriginal and Torres Strait Islander people.  

Thank you, Mr Attorney, for your generous remarks and for the confidence you have placed in me with this appointment.  I am very grateful for your attendance today.  

Ms Schoff, Mr Dunning and Mr Hibbins, thank you for your kind words and for shouldering the burden of two welcomes in three days.  And thank you to your sources for their balance of exaggeration and discretion.  

A heartfelt thank you to the Chief Justice and the judges of this Court for your kind welcome.  My new colleagues have already provided thoughtful advice, personal welcomes, morning teas, lunches and even a guided tour of this building’s mysterious and secret locations.  I have been touched by your warmth and generosity.  

Thank you also to Dimitra Argyros for your tireless efforts in organising today.  

My grandfather, Sydney Dowling, worked all his life as a linesman for the Post Master General.  He lived in Mildura, near the banks of the Murray.  He and my grandmother, Florence, had five children.  The youngest was my father, Ron.  Dad left home and high school at 16.  He travelled from Mildura to Newport and commenced an apprenticeship as a fitter with the Victorian Railways.  He tells me he was a very homesick 16-year-old boy.  He spent the next 45 years working for the railways as a fitter.  

My mother, Jean, is the youngest daughter of a blacksmith.  Her mother, my grandmother, worked in the family’s Yarraville butcher shop.  Mum also left school at 16.  She went to work for the ANZ Bank.  

When mum was pregnant with my sister, Karen, dad put her on the back of his motorbike and drove her from Newport to Mount Waverley in the Melbourne’s southeast.  Mum’s doctor strongly suggested that a pregnant woman should not be on the back of a motorbike.  My sister came out fine.  Mum and dad built a home in Mount Waverley where I was raised and they still live.  

My parents are from a generation when you don’t often tell your children you love them, but they did not need to.  My sister and I always felt loved and supported.  They showed us the importance and value of hard work.  Dad left home every morning at 5 am to travel to Newport. When I was little, he would kiss my half-awake head before he left.  Mum also worked whilst taking care of everything and everyone at home.  

My parents also taught me that it was important to judge people by their actions, rather than their title.  They taught me to be careful before passing judgment.  They taught me to help people if I can.  

It is that family history and those lessons that eventually lead me to my practice in industrial and employment law and lead me to understand and appreciate the significance of access to justice.  

Thank you mum and dad.  Thank you for your love and support and the values you taught me.  I am confident they will help me with the new challenges I am about to face.  Of course, now that I have a title, we could rework that lesson about judging people based on their title.  Thank you also to my sister Karen and my nephew, Ben, for being here today and for all your love. 

Julie and I were recently in Ireland and we bought each of our four daughters a claddagh ring.  That is an Irish ring with a symbol of two hands around a heart, topped by a crown.  They are all wearing them today, despite our fears that there would be eyes rolled at the suggestion.  The hands represent friendship, the heart love, and the crown loyalty.  I have been fortunate that those three things, friendship, love and loyalty, have been constants in all my time as a lawyer.  

Firstly, the friendship and loyalty of a number of mentors and colleagues.  I had the good fortune in 1995 to be the associate to Justice Tony North in this Court, who I am grateful is here today.  He not only demonstrated to me the strength to make difficult decisions, but also the importance of fairness.  Fairness not only in the outcome, but also in the process.  Tony’s example will be ever-present in my new role, as will his old industrial reports, which I’m planning to quietly move out of the Court hallway and into my chambers.  

Immediately before going to the Bar, I worked at Slater & Gordon.  It was an exciting time at Slater & Gordon.  Class actions were emerging, and there was a lot of important public interest litigation.  I’m grateful to Peter Gordon, Andrew Grech, Josh Bornstein and Kate Hawkins during that period, but also since, not only for their demonstration of courage and cunning but also for their demonstration of compassion.  

As you have heard, as a reader, my mentor was Herman Borenstein.  When I approached him about that role, he explained that he had been assiduously cultivating a grumpy persona so that no one would ask him to be a mentor.  I already knew, as I expect many here today know, that the grumpiness is very much a façade.  He is kind-hearted and generous.  For most of my early years as a barrister I, and many junior barristers, would ask, “What would Herman do?”  If you knew the answer to that question, it was inevitably the best decision for your case and your client.  In more recent years, Herman and I have been regularly opposed.  By this time, I thought, mostly naively, that I knew what Herman would do.  But I continued to learn from him as an opponent.  I thank him for 25 years of guidance, support and friendship. Lastly on mentors, I thank Warren Friend KC for his fine example to me as a barrister and as a leader, to Eugene White for being a constant sounding board and friend, and to Rachel Doyle for her friendship and leadership at the Industrial Bar and the Bar more generally.  

My mentors demonstrated to me that industrial law is fundamentally about human stories, about working and living conditions.  From any perspective, it requires compassion, empathy and sometimes a recognition of systemic social issues.  It is true that sometimes the human story comes in the form of a six-foot bear with a waistcoat and no pants.  We all have challenging clients. Humphrey was not my last.  But I always search for the human story.

Together with mentors, I have had many excellent role models.  This Court, and especially but not exclusively its Victorian registry, has a proud and strong tradition of industrial judges.  Here today are former Justices Peter Gray, Shane Marshall, Tony North and Ian Ross.  I am also very, very pleased to be sitting with Justice Mordy Bromberg.  There are many others, including Justice Donnell Ryan, Chris Jessup and Richard Tracey.  Justice Bromberg, in the ceremonial sitting to mark his appointment as President of the Australian Law Reform Commission, remarked that he stood on the shoulders of those that went before him.  I will endeavour to stand on the shoulders of the shoulders, as precarious as that sounds.  

A new judge must wait for their robes to be made, and in the meantime, they are given robes left behind by other judges.  I am fortunate today to be wearing the robes of the Honourable Peter Gray.  They are well-worn.  The hem has come down, perhaps pulled out in frustration caused by some counsel.  And the shoulders are too big for me, literally and figuratively.  I am proud to wear them.  

Together with mentors and role models, I have been fortunate to have had the friendship and loyalty of several outstanding junior counsel.  I will mention just a few.  

Charles Massey from the Queensland Bar, thank you for your careful and always astute insights in our many cases together, for your hard work and patience.  We only ever disagreed about what font to use.  I look forward to reading your submissions, but I won’t read anything in Baskerville Old Face font.  

Kate Burke and I worked on several long cases together.  You were always hard working, always the most organised member of the team, and always wise.  Forgive me for removing all of your adjectives from our submissions.  

Chris Tran, you always made my job both easy and hard:  easy because your preparation and submissions were outstanding, hard because it was sometimes difficult to find a way to improve them.  

Thank you also to Malcolm Harding SC, Pat Doyle SC, Toby Borgeest, Siobhan Kelly, Yasser Bakri, Jim Hartley, Ben Bromberg, Liz Brumby and Declan Murphy for your thorough and excellent work in our cases together.  

Thank you also to my readers James Hooper, Siobhan Kelly, Yasser Bakri and Craig Rossi, each of whom put up with my bike gear, my swim gear, my swearing, my chocolate addiction with grace and good humour.  

I’ve also learned much from my regular opponents.  I’m grateful that many of them are here today.  A good opponent makes a case more efficient and easier to endure.  Thank you especially to Senior Counsel Stewart Wood, Paul O’Grady, Chris O’Grady, Richard Dalton, Jenny Firkin and Matthew Follett. Our cases together were nearly always efficient and easy to endure.  If they weren’t, it was likely the judge’s fault.

I have had many loyal clients and loyal instructors.  I will see and thank each of you personally.  To the instructors, thank you for your trust in me.  I always appreciated the hugely valuable role you played in our cases together.  To my clerks John Kelly and now Andrew Turner, heading the always accommodating and professional team at Foley’s, thank you.  

To the friendship and love of my family and friends, I am fortunate to have here friends from school and all the time since.  Thank you to each of the Book Group, the Rock Crew, Spensley Street Parents and the Footscray Football Tragics.  

I will greatly miss the company of my chambers friends.  A special mention to the longstanding ones:  Lachlan Armstrong KC, Eugene White and Cassie Serpell.  To all my chambers friends who are in the midst of heading to new chambers, I wish them the very best.  Perhaps the Dowling Conference Room with a small portrait might be appropriate.  Or a large portrait.  Just a thought.  

Thank you to Hayden Stephens and Tosca Looby for all that we have been through since and during the 1997 preliminary final, and for the surfing trips that involved more fine dining than surfing.  To Helen Sawczak and Richard Niall for the years of friendship and guidance since we did our articles together over 30 years ago.  To Kim Wall, who is now more family than friend, thank you for all of the care and love you provide to our household.  

My partner Julie, or Judge Julie as she is often referred to.  Julie has promised me that being a judge is the best job ever.  I know who to blame if it is not.  What I have learned from Julie’s many, many years of unfailing love and support is that if there are moments when it is not the best job ever, I will have your strength and sometimes a healthy reminder to get over myself.  Thank you for all your love.  

To my four daughters, I am enormously proud of you, even though you have so far ignored our subtle hints about becoming lawyers.  Ruby, I am inspired by your courage;  Nina, by your empathy and understanding;  Grace, by your big heart;  and Lily, by your persistence and determination.  You are all fierce.  Thank you for keeping me in my place.  You will always have my support and love.  

It is my particularly good fortune to be permitted to start a new career.  I am very much looking forward to the challenge.  It is a great honour to serve on this Court.  I will do all I can to repay the confidence placed in me.  I will call on the lessons from my parents, hard work, care in passing judgment and treating everyone equally.

To the profession, I will remember the burdens of private practice, and the difficulty in balancing work and life outside of work.  I will rely on the profession and I will always be grateful for its assistance.  

This Court has always felt like my home ground.  I am very grateful that it is now my home.  Thank you.

MORTIMER CJ:   Thank you, Justice Dowling.  The Court will now adjourn.

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