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FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

TO FAREWELL

THE HONOURABLE JUSTICE MANSFIELD AM

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE MANSFIELD AM
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE GILMOUR
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE WHITE
THE HONOURABLE JUSTICE CHARLESWORTH

GUESTS OF THE BENCH

THE HONOURABLE MICHAEL BLACK AC QC
THE HONOURABLE CATHERINE BRANSON QC
THE HONOURABLE PAUL FINN

ADELAIDE

9.39 AM, FRIDAY, 1 JULY 2016

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. 
ALLSOP CJ:   Chief Justice French, Justice Keane, Chief Justice Kourakis, Chief Justice Riley, former Chief Justices Black, Doyle and Martin, distinguished guests, colleagues and friends of Justice John Mansfield.  The Court is delighted to welcome former Chief Justice Black and former judges of the Court, the Honourable Catherine Branson and the Honourable Paul Finn onto the bench.  The Honourable John von Doussa is here, but unfortunately may have to leave early, so he chose not to sit on the bench.  Former colleagues, Justice Kiefel and the Honourable Bruce Lander send their apologies.  

May I commence by acknowledging the Kaurna People as the traditional custodians of the land on which we meet today and their elders past and present.  

We gather here to farewell a dear colleague.  Because it is a farewell, it is a sad occasion.  That sadness is ameliorated, however, by the great pleasure brought by sitting once again on the bench with former close colleagues and have present other former close colleagues with us in the courtroom. The sadness is also ameliorated for me by the opportunity it gives me to express publicly my deepest possible thanks to you, Justice Mansfield;  thanks that are both personal and institutional.  

The speakers who will follow me today will no doubt say much of your service to the community, both in and outside the Court.  I would like to focus upon your contribution to and life in the Court.  

You were sworn in on 4 September 1996, a little over a week after your 50th birthday.  Whilst simple arithmetic reveals almost 20 years service to the Court, anyone who knows you and your work at the Court would know that you have contributed 30 to 40 years worth of work to this Court.  

A full appreciation of your contribution to the Court must begin with some understanding of the person you are.  You have a gentle strength made effective by a wonderful sense of humour and a great warmth of personality.  Those traits, together with a determined industriousness and an ever present common sense and modesty, have seen you always make your contribution selflessly and without ever seeking personal credit for anything.

That contribution is one that began in the same year that the individual docket system was introduced into this Court and shortly after the passing of the Native Title Act.  Thus, your 20 years service coincided with two of the most important aspects of the Court’s operation, procedural and substantive.  

I will come to your contribution in your judicial work shortly, but your dedicated service to the committees of the Court has been prodigious.  You have served tirelessly on numerous committees that include the Policy and Planning Committee, the Finance Committee, the Building Committee for the construction of this building, the Admiralty Committee, the South Australian Registry Liaison Committee, the International Development Committee and the Art Collection Advisory Committee.  The work of these committees is integral to the efficient functioning of the Court.  The work is time-consuming if done properly, as you always did it.  May I make particular mention of two committees;  the Finance Committee, which you have chaired, and the International Development Committee.

The Finance Committee provides indispensable advice to the Chief Justice to complement and review the work of the registry and the Registrar in the managing by the Court of its finances.  In an age when the highly successful financial model of the independent judicial institution is, if not under threat, certainly being questioned, the Finance Committee’s work is critical to the operation of the Court.  The astute and painstaking work that you have undertaken in that committee has contributed in a significant way to the reputation of this Court, in particular, in how it deals responsibly with the large sums of money provided by Parliament for the operation of an independent judicial institution.  This confidence is crucial to maintaining the confidence of Parliament in the superiority of the independent self-managed structure of the Court.  You have always understood this.  

You have put your heart and soul into the international work of the Court.  As part of that committee, you have undertaken work in your own time in Vietnam, China and the Pacific.  Special mention must be made of your involvement in the Pacific Judicial Development Program.  This is an important body of work that is funded by the New Zealand Department of Foreign Affairs for which the Court takes responsibility in assisting the Courts of the Pacific improve their operations and governance.  You have been closely involved in it, whilst, at the same time, in your own time, sitting on the Court of Appeal in Vanuatu.  

You also helped begin one of the Court’s most important connections with the Fourth Civil Division of the Supreme People’s Court of China in Admiralty and maritime work.  You and I went to Beijing in 2007 to begin this.  After I left to go to the Court of Appeal, you, together with Justices Rares and Jagot, did hugely important work in developing the relationship between maritime courts in China and this Court as our nation’s specialist and internationally respected Maritime Court.  The degree of trust and exchange of high-level skill between the Fourth Civil Division that deals with maritime law and international commercial arbitration and this Court is a matter of great significance and your part in its development should be remembered.

Your judicial writing has been prodigious and of great importance.  Time does not permit other than reference to some highlights.  You would want me to commence by saying something of your work in Native Title.  That desire is understandable given your contribution in the area.  You began as a Judge not long after the Native Title Act came into force.  Your work in Native Title has seen you write 145 judgments in the area, including 20 Full Court decisions.  Many of these decisions are consent determinations.  That, however, does not lessen their importance, nor does it mean that there was not a prodigious body of work behind such judgments.  Those consent determinations often provide the opportunity to explain to a white and indigenous audience together, through the summarised and agreed views of anthropologists, the stark and confronting aspects of this nation’s history that the judgment in Mabo and the consequential Parliamentary Act in the Native Title Act sought to address in the legal sphere.  You have always understood this.  

One of the hallmarks of your dealing with this jurisdiction was your skilled case management and your deeply held belief that in this jurisdiction of Native Title, as far as possible, parties should be encouraged towards settlement.  

Your facility as a case manager and as a judge in this area is not so much to be understood by reading a handful of leading judgments; rather, it is to be found in the interstices of judgments great and small and your handling of those cases and of the people before you.  You have a deep understanding of how Aboriginal law and customs operate, of how language of the Aboriginal peoples communicates ideas that inform the subtleties and importance of concepts of connection of people and communities to the land.  You have always understood the deep importance to this nation of the careful and sympathetic application of the legislation.  By “sympathetic” I do not intend to imply a preference for one outcome over another;  I mean the recognition in you, because of the kind of person you are, of the importance of the recognition of incalculable injustices in the past requiring Australia as a whole to recognise its debt to the Aboriginal peoples of this country and to recognise their place as an integral part of the soul of the nation.  This, you understood.  

Your love and sacrifice for this work can be seen in the fact that you have written so many judgments in the area, many of them of seminal importance.  Your analysis of the laws and customs of the Larrakia People of the Darwin area, and the catastrophic impact of sweeping historical circumstances on them, that drew you to the conclusion you reached in that case revealed not only your strength of analysis, but also your empathy for those before you as litigants even though, perhaps especially because, they lost.

Likewise, your and Justice North’s analysis of Aboriginal society in Sampi reveals an intellectual and emotional empathy, with an understanding of the subtle sociological and legal issues involved.  A recent illustration of your deep understanding of indigenous systems of law and custom, that has underpinned all your work in this area, is the judgment concerning the Barngarla People in Croft.  One of your colleagues has remarked that the judgment, in so many ways, is the culmination of your work on connection issues in Native Title.  

One cannot leave this area of native title in a room with the Honourable Paul Finn and Justice John Dowsett on the Bench, and Justice Keane present without mentioning your dissent in the Torres Strait Island Sea Claim, in which Paul Finn as the primary judge, and you in dissent in the Full Court, were vindicated in the High Court.

But one should add, of course, as we all know, the High Court is only necessarily correct because it speaks last.  However, as I have written elsewhere, on the depth and subtlety of Paul Finn’s judgment in this case, and yours was a masterpiece of statutory interpretation.  

You have been here since the beginning of the Native Title work, and you have shaped its jurisprudence with clear and sometimes bold expression of ideas, and you have moulded the character of the Court’s approach to its administration.  

Your work in Competition Law has been prodigious also.  You have authored many important judgments.  Your capacity for work, and your ability to master economics and law were revealed in cases such as the first instance case in NT Power, and the brutish appeals of Baxter Healthcare and C7.

No one should ever underestimate the difficulty of doing one of these large cases, let alone the multiplicity of them that you have done over the years.  Your work on the Australian Competition Tribunal as its Deputy President from 2008 to 2011, and as President from 2011 until this year, has also made a huge contribution in this field.  The work of the tribunal is gruelling, intense, and intellectually demanding.  Decisions such as the recent Australian Energy Regulator decisions, the application by Glencore Coal, and the application for authorisation of Macquarie Generation by AGL reveal the determined industriousness that I first mentioned.  They also reveal a complete mastery of economics and law which is at the heart of this important body of work done by the Court and the Tribunal.

But you have mastered all fields of the Court’s work, whether it be in Shipping and Admiralty, Administrative Law, Constitutional Law, Intellectual Property, Industrial Law, Commercial Law, Company Law, or anything else.  Your work has been of the highest order, if I may respectfully say.  I have been privileged to sit with you on Full Courts since my commencement of life as a judge.  Indeed, my first case on the Court was a Full Court appeal with you.  Over the years, I have had the privilege to observe your thoughtful and careful analysis of statute law and equity, and I have seen the subtlety with which you think, and with which you write.

In addition to your work as a Judge of this Court and the Australian Competition Tribunal, you have been a Presidential Member of the Administrative Appeals Tribunal, an additional judge of the Supreme Courts of the Northern Territory and the Australian Capital Territory, and you have been a part time Aboriginal Land Commissioner.  In 2003 you produced a major work, being the review of part 4 of the Aboriginal Land Rights (Northern Territory) Act required by the Amending Act of 2006.  The report brought in 22 important recommendations.  Some of those recommendations have formed the basis of amendments to the Native Title Act, facilitating more expeditious settlement of consent determinations.

Your energy and dedication to public service will see you, in your so-called retirement, chairing the Independent Nuclear Fuel Cycle Royal Commission Consultation and Response Advisory Board, which has been tasked with overseeing the Nuclear Fuel Cycle Royal Commission Consultation and Response Agency throughout the community consultation process for this subject matter.  Your legendary patience and good humour may be tested; but you were, if I may say so, an inspired choice for what will be an important and not easy task.  

I have not touched on your many activities in the community both before and after becoming a judge, in which you have selflessly given your time and energy, and I anticipate others will speak of these.

It is best not to be too personal in an address such as this, but I wish to express publicly how grateful I am to you for a number of things.  First, for how you treated me when I came to the Court in 2001.  There were a number of people who looked out for me in those days.  Some of them are here today.  Your and Kate’s warmth of welcome in Adelaide, and your welcome on the Court, the wise guidance that you gave me, and enthusiasm you could always generate in me over the years, and the personal support you have given me over the last three years, have helped make life on this Court the happy experience it has been from the beginning.  You have been a wonderful colleague and friend, and this is a true debt of friendship which I am sure I am not the only one in this room who owes.

Secondly, over the last two years the Court has undergone significant changes.  You, with Justices John Dowsett and Susan Kenny have been my rock of advice and help.  I cannot thank you and them enough for that.  The task has not been easy, but it has always been done with the full support of our colleagues.  Your wise and always critically thoughtful advice and encouragement has made my life much easier in seeing such change effected, and has improved immeasurably the approach that we have adopted.  

I will finish, and let others improve upon this inadequate paean, but let me finish by simply saying this:  Justice Mansfield you are part of the soul, and have helped shape the character, of this Court. You have in word, deed, and effect led it.  When those who come after us do their work, as Bernard of Clairvaux would have said if he were here, “You are one of the giants upon whose shoulders they will stand”.  

On behalf of all the Judges of the Court, I thank you for your friendship and your service, and we all wish you and Kate every happiness and success in the coming years.  

Senator Edwards.

SENATOR S. EDWARDS:   May it please the court.  I am pleased to be in this place to represent the Attorney-General, Senator the Honourable George Brandis QC at the special sitting to farewell your Honour Justice Mansfield.  The very high esteem in which your Honour is held is reflected by the many very eminent members of the judiciary who are in Court here today.  I acknowledge the presence of the Honourable Robert French AC, Chief Justice of the High Court of Australia;  the Honourable Patrick Keane AC, Justice of the High Court of Australia;  the Honourable James Allsop AO, Chief Justice of the Federal Court;  the Honourable Chris Kourakis, Chief Justice of the Supreme Court of South Australia;  Vickie Chapman MP, Shadow Attorney-General of South Australia;  the Honourable Trevor Riley, Chief Justice of the Supreme Court of the Northern Territory;  and current and former members of the Federal, State, and Territory judiciaries.

Can I also acknowledge the presence of your Honour’s family:  your wife Kate, your children Bill, Tom, Gemma, and Annabel, and your grandson James, and your brother Paul, your sister Jane, together with other members of all your extended family.  Your Honour completed your primary and secondary education at St Ignatius College in Norwood, where you were inspired by a number of your teachers to develop a love of learning, love of books, the love of argument and, importantly, discussion.  This was clearly the perfect grounding for the choice of profession and for the trajectory of your Honour’s career.  Your Honour then attended the University of Adelaide, graduating with a Bachelor of Law with honours in 1967.  Your Honour then completed your articles at Kelly & Co and was admitted to practice as a barrister and solicitor of the Supreme Court of South Australia in 1969, and then the Supreme of the Northern Territory in 1971.  In 1969, your Honour joined the firm now known as Piper Alderman, in Adelaide, where you became a partner in 1971. 

Your Honour remained in this partnership for 10 years, building a wide practice as a barrister and a solicitor.  Significantly, in 1979 your Honour joined the independent bar at Hanson Chambers, where you remained for 17 years, being appointed as a Queen’s Counsel for South Australia in 1985, and subsequently in the Northern Territory in 1988.  In 1991, your Honour was appointed counsel assisting the Commissioner of the Royal Commission into the State Bank of South Australia and was subsequently appointed as the Royal Commissioner with the task of completing the report of the Commission’s fourth and final terms of reference.  

While on the Royal Commission, I understand that your Honour was named the winner of a competition run by the barristers and solicitors, as to who would wear the largest number of beige suits.  I suspect you got a run for your money with the then serving Premier Dean Brown.  However, I’m told your Honour’s tendency for beige suits is tempered by a love for wearing socks, charitably described by some around me as bright but more frequently as lairy.  Your early service to the law is marked.  From 1978 to 1990, your Honour served as a council member of the Law Society of South Australia, also holding during that period various executive positions, including that of President from 1988 to 89.  

Your Honour was appointed to the Law Council of Australia in 1987, was elected as an Executive Member from 1990 to 1994, and served as President from 1993 to 1994.  Your Honour also served as an Executive Member of the South Australian Bar Association from 1990 to 1993, and President from 1992 to 1993, and as Chairman of the South Australia Legal Services Commission from 1995 to 1996.  Your Honour was appointed to the bench of the Federal Court on 2 September 1996.  While on the bench, your Honour has been a member of various committees, demonstrating your extensive contribution to the management of the Court, including, since 2002, the Native Title Committee, since 2003, the Finance Committee, and since 2011, the International Development Committee.  

Your Honour also served as Convenor of the Native Title Committee between 2008 and 2015, and Convenor of the Finance Committee between 2012 and 2015.  Your Honour has also served as a member of the Admiralty, Enterprise Bargaining Policy and Planning Committee and Appeals Committee.  And as the Chief Justice has said, it has been a busy time for you.  Between 2003 and April 2016, your Honour was a docket judge for the Northern Territory and for South Australia dealing with Native Title claims under the Native Titles Act of 1993.  This led to your Honour hearing a great number of land claims in the Northern Territory and in South Australia. 

Your specialist knowledge in this area led to your appointment as the Aboriginal Land Commissioner in 2011, an appointment that is still ongoing.  Your Honour has written many significant Native Title judgments, including De Rose v South Australia (2013), Nicholls v South Australia (2015), and Croft v South Australia (2015).  As well as for these and many other decisions, your Honour is well known for your very old and wrinkled Akubra hat, which you wear when on country for Native Title hearings.  I’m told that a new hat was purchased for you, which you refused to wear.  More importantly, in the exercise of this jurisdiction, your Honour is known for connecting well with the people on country, and your colleagues have related that it would not be unusual to see you sitting by a riverbank, and another informal setting as any situation required, to hear your evidence.  

Your Honour also holds many additional appointments:  since 2007, Judge of the Court of Appeal, Vanuatu, since 2008;  Additional Judge of the Supreme Court of the Australian Capital Territory;  from 2008 to 2011, Deputy President of the Australian Competition Tribunal;  since 2009 of June, Additional Judge of the Supreme Court of the Northern Territory;  from November 2010 to November 2015, Deputy President of the Administrative Appeals Tribunal;  since 2011, Presidential Member of the Administrative Appeals Tribunal, and until 1 July 2016 – today – President of the Australian Competition Tribunal.  

As President of Australian Competition Tribunal, your Honour has heard the first application for merger authorisation by the Australian Competition Tribunal and the first applications in New South Wales and the Australian Capital Territory under section 71B of the National Electricity Law, following significant amendments made in 2013.  In 2009, your Honour was awarded a Member of the Order of Australia in the Queen’s Birthday Honours for service to the law and to the judiciary, to a range of professional associations and to the arts community of South Australia.  Your Honour has been also closely involved in the work of the Pacific Judicial Development Program, that aims to strengthen the capacity of the courts and judges of 14 Pacific countries.  

As Judge of the Court of Appeal in Vanuatu since 2007, your Honour has also contributed directly to the development of the law in the Pacific.  Outside the law, and with regard to your family, and despite the many professional and judicial obligations, I’m happy to say that your Honour has somehow found time to pursue a great range of other interests.  Your Honour has been a valuable contributor to the University of South Australia, holding positions as a member of the university’s School of Law Advisory Board from 2007 to 2013, and since 2013 as its Chairman.  Your Honour collects Aboriginal works of art, especially Central Desert works, as well as rare and historical books, some of which you have generously given to the Federal Court. 

You’ve also held positions variously as a Member of the Art Gallery Board of South Australia and a member and Chairman of the Art Gallery of South Australia Foundation.  As Chairman of the Foundation, your Honour oversaw the acquisition of over 1000 works of art valued at approximately $40 million.  This included some of the very special works, including one of the great works of the gallery’s collection by J.M.W. Turner, Scarborough Town and Castle, circa 1810.  You also gifted two Aboriginal works to the gallery and have, together with your wife Kate, continued to be very involved and supportive of that gallery.  Your Honour is also a passionate supporter of the Norwood Football Club. 

Your Honour, I am told, has a very close-knit family of which you are very proud; your wife, Kate, and your four children and your four grandchildren.  I am told that in retirement your Honour is looking forward to gardening and, in particular, a competition that you are planning with your eldest son, Bill, to see who can grow the best tomatoes.  With no disrespect to Bill, the commitment evidenced by your Honour’s career to date will make you a formidable opponent.  Finally, your Honour, might I say on behalf of the Government and the people of Australia that your service to the community in the law and in so many other spheres is of the highest eminence and greatly deserving of our thanks.  This has, indeed, been a life filled, lived to the full and there is, I greatly trust, much more of it to come.  We wish you the greatest happiness in your retirement.  May it please the Court.

ALLSOP CJ:   Thank you, Senator Edwards.  Mr O’Sullivan.

MR P. O’SULLIVAN QC:   May it please the Court.  On behalf of the South Australian Bar and all of the Australian bars, I rise to congratulate your Honour on an outstanding legal career and to offer the Australian bars’ thanks for your contribution over many years in practice at the bar and on the Bench.  As we’ve heard, prior to your Honour’s appointment as a Justice of this Court in September 1996, you made a significant contribution to the profession serving in a number of positions.  That contribution, albeit in different ways, has continued after your appointment.  It’s often said that some things change and some things remain the same.  At a sitting of the Full Court of this Court to welcome to your Honour on your appointment in September 1996 reference was made by the then President of the Law Council of Australia Mr Michael Phelps to the tireless efforts you had made as President of the Law Council of Australia in relation to a number of issues, including Legal Aid funding, a blueprint for a national profession and I might add that you are generally regarded as the father of the national profession, and the role of women in the law.

20 years later current issues that confront the Australian Bar Association are legal aid funding, the role of women in the law.  Thankfully, the bar has, for all intents and purposes and by any practical measure, moved towards a national profession with its members appearing in jurisdictions throughout Australia and the bar associations of each State and Territory having common rules, but the journey is not complete and more work is required.  Reference was also made during the presentation of your commission to the criteria for judicial appointments.  A recently published paper at the time observed that the following criteria needed to be considered:  legal skills, personal qualities, advocacy skills, impartiality, practicality, common sense, wisdom, cultural sensitivity, gender sensitivity, breadth of vision, understanding of the community’s aspirations and objectives, oral and written communication skills, a capacity to uphold the rule of law and act in an independent manner, and organisational and administrative skills.  It could be said with absolute confidence that your Honour has displayed all of those qualities during your time on the Bench, which is perhaps just as well because you authored the paper.

A number of former judges and practitioners who have known you for many years say that the qualities that typify you are self-evident and what you see is what you get;  a person of the highest integrity, intelligent, fair and utterly selfless.  I might add to those qualities that it has been the experience of counsel appearing before you that they were invariably treated with courtesy and polite but firm patience.  If I may, I recall as a young practitioner briefing the then John Mansfield of counsel.  Things were slightly different then.  I cannot recall if you had a beard, but certainly neither of us have the current grey highlights that we now both sport.  In any event, your ability to distil complex issues into a series of clear and simple propositions was a highlight of working with you and an object lesson in legal analysis.  I recall thinking, “Is it really that simple?”  As I say, some thing remain the same;  later, when appearing before you as counsel, there was a certain déjà vu as my carefully crafted arguments were distilled by you into a series of propositions which seemed to be compelling even if not entirely in accordance with my case theory.

Put simply, your approach both as counsel and on the Bench to legal analysis provides an invaluable lesson and one which has benefited many counsel as they progress to the bar.  On that basis alone your contribution to the bar has been beyond measure.  I mentioned earlier that you have continued with your contribution to the profession whilst on the Bench.  That has manifested itself with your longstanding interest in the South Pacific and helping train lawyers to improve standards of legal practice as well as developing legal education in that region.  Your involvement in the local legal profession in the South Pacific has been essential to the delivery of continuing legal education and the creation of training opportunities for the profession.  In 2013 you were asked to help guide the first conference of the South Pacific Lawyers’ Association in Port Vila which you duly did, providing advice and necessary introductions and encouragement.  Indeed, you gave the first session at the conference, speaking on the topic Commercial Trade;  What Happens When You Litigate?  

The conference was a huge success with a number of South Pacific lawyers attending and relationships forged that helped the South Pacific Lawyers’ Association become the united body it is today.  Your Honour’s work ethic is well known.  A database search of the last five years has revealed some 500 cases to which your Honour has been involved, ranging across a number of topics, including, of course, Native Title.  Following on from your interest in Native Title work, your Honour is currently the Aboriginal Land Commissioner for the Northern Territory and that work will continue, no doubt, with the well-travelled akubra.  You’ve always been very generous with your time and you take an interest in people.  Tony McAvoy SC, the first indigenous Australian to be appointed Senior Counsel, was appearing before your Honour in a Native Title claim involving the Barngarla People of the Eyre Peninsula shortly after he took silk.  He reports that he was completely overwhelmed by your Honour when you stopped the proceedings and offered his and the Court’s congratulations to him on his achievement.  So touched was he that he has travelled today to be present at the hearing.

You make it your business to keep in regular contact with all of your past associates and, indeed, as we know, one has now joined you on the Bench as a Justice of this Court, Justice Charlesworth.  It is said that you never forget a birthday or a special occasion and you’re extremely supportive of the staff with whom you work.  

Consistent with your tireless energy, a quiet retirement doesn’t appear to be on the cards.  I expect that will not come as a surprise to your wife, Kate.  Nonetheless, it may give you some time for the other apples of your eye;  your children and, of course, your grandchildren, James, Edward, Nicholas and Charles.  It may be that your retirement gives you more time now to read and collect the antiquarian books in which you are so interested.  You have a love of poetry and I’m informed that you enjoy challenging your legal associates on the origins of various obscure lines with some famous and not so famous pieces of poetry.  Now, notwithstanding all of our training as barristers, sometimes we simply can’t resist the obvious and I conclude as follows:  two roads diverged in a wood and I, I took the one less travelled by and that has made all the difference.

Now, you will recognise these lines from the Road Not Taken by Robert Frost.  In reality, neither road was well travelled.  It was just a choice that had to be made and Frost was dealing with the wisdom of hindsight.  You have made your own road and we have all benefited from it.  It is a road, I have no doubt, you will continue to tread.  Once again, I offer my congratulations on behalf of all of the Australian bars.  We thank your Honour for your contribution to the profession at all levels and wish you all the best in your retirement.  May it please the Court.

ALLSOP CJ:   Thank you, Mr O’Sullivan.  Mr Caruso.

MR D. CARUSO:   May it please the Court.  On behalf of the Law Society of South Australia and the Law Council of Australia, it is a privilege to offer the gratitude of the Australian legal profession to your Honour, Justice Mansfield, on your retirement from this Honourable Court.  The Law Council of Australia is the national body representing the 66,000 legal professionals in this country.  Its membership is comprised of the constituent law societies and bar associations of each State and mainland Territory, together with law firms Australia, or the big, friendly giant as they are more emphatically known.  The President of the Law Council, Mr Stuart Clark AM, conveys his congratulations to your Honour on the path you chose and trod with success throughout your service to the law.  I acknowledge the Kaurna People as the traditional custodians of the land on which we convene and offer my respects to their elders, past and present.  The Australian legal profession is increasingly recognising the need to provide better justice to our first peoples, a key element of which is the inclusion of Aboriginal and Torres Strait Islander people in the profession, from junior intake to senior promotion.

Your Honour has long recognised and worked towards this important goal for our society.  It is evidenced by your acknowledgment of Mr McAvoy SC and confirmed by the people and lawyers of the Northern Territory who tell me they consider you an honorary Northern Territorian.  Your Honour has served with three Chief Justices and all of their Honours are present today.  The first in your tenure, The Honourable Michael Black AC, lauded you as a jurist of particular capacity and capability who was also a wonderful team player for the Court and could always be relied on to kick goals;  true to at least previous years of Norwood form.  Mr O’Sullivan’s reference to your being the father in the national profession framework accords with the transformation you led as President of the Law Council over 1993 and 1994.  Your Honour steered the council in the formulation of the document entitled Blueprint for the Structure of the Legal Profession.  This master plan not only viewed but positioned the place of the law in the national economy.  It was drawn at a difficult time, with the Trade Practices Commission circling and the profession needing the strong leadership your Honour provided.  The blueprint remains a valuable and referenced work by the Law Council and its constituents in the continuing discussion of state and territory presidents towards a national profession. 

The strategic direction for national reform your Honour guided in Australia has been complemented by a commitment to forging relationships with international and regional partners throughout your time in practice and on the bench.  Your Honour contributed to the agreement of a memorandum of understanding with the China Law Society, and has been a member and councillor of LAWASIA.  Your Honour has placed importance on capacity-building within the South Pacific and South East Asia through training and education.  This serves as a lesson to those that follow in your footsteps in recognising mutuality and education as the keys to strengthening regional partnerships. 

You were the first Law Council President to attend a meeting of the Presidents of Law Associations in Asia.  This collective of the acronym POLA began in 1990.  Australia was not included in commencement as Australia was not considered to be part of Asia.  I am not sure which of the judicial qualities, as recorded in your published paper, you employed at the POLA meeting;  no doubt a tantalising mixture of them all, because Australia was admitted to POLA immediately following your attendance in 1994 and we have been there ever since.  Your Honour’s service to those who seek justice but come with shallow pockets is the hallmark and inspiration of your career. 

You chaired the South Australian Legal Services Commission prior to your judicial appointment, and the National Legal Aid Advisory Committee in 1992, having been a longstanding member of the committee.  As a practitioner, your Honour rapped and sometimes banged on the door for additional government funding for Legal Aid and community-based legal services.  That noise at the door has continued, and in the lead up to tomorrow is no doubt ringing in the ear of the honourable Senator and his colleagues.  Your Honour’s commitment to education has been to the continuing benefit of the profession, as you have regularly agreed to address our development forums.  

Your Honour has been particularly supportive of trade practices workshops.  You presented three speeches at workshops in 2008.  Two delivered in May of 2008 provided an expert review of the 1974 Act, and those in attendance risked wrist sprain to assiduously note down each word.  Your final address that year was delivered to the 19th annual workshop of the Competition Law and Policy Institute of New Zealand.  It gleaned even more further amongst the profession, being a presentation entitled Professional Men:  They Have No Cares.  Whatever Happens, 
They Get Theirs.  The service your Honour has given to the Law Society of South Australia is unsurpassed.  Your membership commenced on 31 March 1969.  

You served 12 committees over 20 years, including Chair of the Third Party Premiums Committee in the lead-up to your 1988/89 presidency.  As a Justice of this Court, your Honour continued to support the society be leading the development and expectations of young practitioners as Chair of the Society’s GDLP Education Committee.  In 2009, upon your recognition as a Member of the Order of Australia, your Honour remarked that the most enjoyable aspect of your legal career was involvement in the quality of legal education.  In 2011, the Society sought to show our respect and admiration for your commitment to the law, those who practice it and those who seek its fair application, by awarding you the Brian Withers Award.  And I note the Honourable Brian Withers is present today. 

It is the Society’s pinnacle award for outstanding service to the legal profession.  The writing comprised in your Honour’s judgments reveals a technician of legal analysis, without sacrifice of accessible phrasing, and even a flair for language.  This mastery of the written word is traceable to your Honour’s passion for rare books, interleafed by, I am told, a guilty pleasure for gossip magazines.  As your Honour now rummages in chambers for the classic books and juicy magazines to relocate to your Honour’s home study, you may come across a 2004 edition of the Law Society Bulletin in which your Honour reflected on the issues during your 1988 to 89 presidency.  

The key event you recalled was withdrawal of funding for a Federal Court building in Adelaide.  Fifteen years later, this courthouse, which remembers Dame Roma, was constructed.  For the South Australian state profession who gather today to appreciate your Honour’s career, we hope that our last day in courts across the road will also be in newly constructed premises befitting the efficiency of courts to the conscience, health and prosperity of the people.  Although if they are constructed before our law day, we will not object.  Your honour has been a local, national and international leader for the legal profession of Australia.  

Your contribution is held with pride, affection and admiration by the profession of your home state.  On behalf of the Australian and South Australian legal professions, it is a privilege to recognise the legacy your Honour leaves and the grace and humility with which it was built.  May it please the court.  

ALLSOP CJ:   Thank you, Mr Caruso.  Justice Mansfield. 

MANSFIELD J:   Thank you, Chief Justice, and thank you for your words, and from Senator Edwards, Mr O’Sullivan and Mr Caruso.  They’re very kind, they’re very flattering, but in my own view, of course, they’re inaccurate.  I shall take the transcript with me in my judicial retirement, and when I feel a bit low I will read them again, and I hope I will persuade myself that they were true, and then I will strut around for a day or so.  When a judge is retiring and the possibility of such a 
sitting as this is thought about, the main thing you think about is the risk about whether anyone will turn up.  It would be very embarrassing if no one did. 

I was comforted by John von Doussa, who is sitting over there today, as the Chief Justice noted, not as a form of protest.  But he told me not to worry, and he reminded me of Yogi Berra.  Yogi Berra, you might know, is an American baseball coach who was famous for the expression, “It was déjà vu all over again.”  Another of his comforting quotes is this:  “I always go to other people’s funerals to make sure they come to mine.”  That doesn’t quite apply but I think you get the gist.  Anyway, it gave me enough confidence to ask the Chief Justice for the privilege of an occasion such as this, and I’m very glad that he did.  I do very sincerely thank you all for coming.  It means a great for me. 

I’m especially pleased that the Chief Justice of Australia, Chief Justice French, and Justice Keane of the High Court, and formerly Chief Justice of this Court, have done so.  And Justice Keane is here.  It is an honour I shall treasure.  I also thank Chief Justice Riley of the Supreme Court of the Northern Territory, at least for a few more days, and Chief Justice Kourakis of the Supreme Court of their attendance, and many other judicial colleagues.  

There are of course many others I would like specifically to mention, but this shouldn’t be a litany of those present, so I hope you will excuse me if I stop at that.  Apart from anything else, one of the Judges on the Bench here as we were coming in said, “I hope it doesn’t take an hour.”  And we’re not doing too well.  I know some of you have come from overseas, and some have cut short holidays overseas, to be here.  How much I appreciate you doing so.  I mention especially my daughter Gemma and her partner Andy, who both came from New York for this morning’s sitting, and that’s a nice segue into my family.

The late Maurice O’Loughlin, a wonderful friend and confidante, and an excellent Judge of this Court, didn’t have a farewell sitting because he was concerned that he might become too emotional around his family, and I want to avoid becoming too emotional because it can slow down, in an embarrassing way, the session today.  I couldn’t afford that extra time because John von Doussa might have to leave early, but I am very grateful mention has been made of my family in your remarks.  My beautiful Kate, who as you know is my partner and my best friend.  She has supported me through the whole of my career, and she knows how much I appreciate what she has done.

And yes, we will now be having morning coffee together, and we will go out to lunch together, and visit galleries together, and even half price Tuesday matinees.  And I want to mention my family as well.  Annabelle with James and Nicholas, they’re the wriggly ones.  Bill and Isabelle, with Edward and Charlie.  Gemma and Andy.  And our nearly 35 year old baby, Tom.  I’m immensely proud of each of them for being such fine people, for what they have achieved largely through Kate’s parenting, while I followed my career for almost forty, or forty or fifty years, and almost the last 20 years a Judge of this Court.  The proverb says that you can know a man by the company he keeps.

I am very proud to adopt that proverb today.  On my Bench, with my fellow Judges, is one of the former Chief Justices of this Court, the Honourable Michael Black.  And I have mentioned Justice Keane, and of course our present Chief Justice.  Over nearly 20 years in this Court, I have had the privilege of serving under those three men, three of the four Chief Justices of this Court, because Sir Nigel Bowen, the first Chief Justice, had died some years before my appointment.  It has been a remarkable experience.  Each of them has contributed immensely to the quality of the work of the Court, and to its reputation.  As has been mentioned the administrative and political skills of one of them, Michael Black, is illustrated by the building we are in today, and this superb courtroom.

It’s a credit to his persuasiveness, and his leadership, that he was able to achieve the construction of this Commonwealth Law Courts building in Adelaide after so many years of frustrated hopes and expectations.  We celebrated our 10 year anniversary in this building last year.  Each of our Chief Justices has fostered a very strong sense of collegiality in the Court, so that without exception I can say I have worked with eminent, industrious, stimulating, and gracious judges throughout the whole of Australia, always supportive, always helpful, and always enjoyable company.  I think the erudition of the Court speaks for itself.

It would be inappropriate to single out other Judges from our Court.  Many of them have become good friends, including a number of who have retired.  But it is not inappropriate to remind you all of the particular qualities of Bob Fisher, now sadly deceased, and the first South Australian appointed to the Federal Court of Australia.  For many years, he was a mentor to me while I was at the bar, and he gave me far more robust guidance when I was counsel appearing before him.  I’m delighted that each of the judges with whom I have sat in South Australia on a long term basis are present with me in Court, save for Maurice O’Loughlin, and Bruce Lander who is overseas.  They know the respect I hold them in.

John von Doussa, Cathy Branson, and Paul Finn too, were quite exceptional judges, and their presence today is also something I shall treasure.  As you can probably gather I have never regretted, for one moment, the opportunity to serve as a Judge of this Court.  Quite apart from the quality of the judges with whom I’ve worked, the work itself has been confronting, stimulating, and challenging, and it is very important work.  I want to mention one aspect of the Court’s work.

The Chief Justice has spoken a lot about the Native Title work I have done.  I won’t repeat any of that.  But I have been very fortunate to have done a lot of that work, particularly in South Australia and the Northern Territory.  I have observed, to the great credit of the Australian community, a very significant attitude change on the part of the wider Australian community towards indigenous Australians.  It would not be unfair to say that, amongst some sections of our community, there was considerable consternation when the Native Title Act was first introduced in 1993.  It is now commonplace for determinations by consent to be made recognising the traditional rights and interests of indigenous Australians in their country, where it is appropriate to do so.

In fact, over the last 10 years or so, the holders of native title have been recognised in almost all of South Australia, north of Port Augusta and extending to the Western Australian border, as well as in some areas closer to the more populated parts of the State.  That has been supported, as the consent determinations show, by those who have interests in that land.  Pastoralists, local government, mining interests, and others, and they attend the consent determinations and share the joy of them.  It is a wonderful advance.  If I may reminisce a little, from the decision which was made in the Gove Land Rights case in 1970 which said that indigenous rights and land were not recognised under Australian law to the present time, we have changed as a community immensely.

When we as Australians are overseas, or when we see an event of significance to the indigenous community within Australia, we’re proud of that heritage, and we’re proud of being part of that heritage.  We share the pleasure of it being recognised both in Australia and throughout the rest of the world as the world’s oldest, and a very sophisticated culture.  The Court has played a very significant role in ensuring that the claims for the recognition of indigenous should be addressed by encouraging the case management skills of the Judges and Registrars of the Court, and ensuring that claims do progress to hearing, now mostly by consent.

I have to say that that procedural progress has been ably supported by those representing indigenous Australians, and by those representing the States and the Northern Territory.  It has been an immense task, with objectives which should be lauded by all.  One thing I have learned from the indigenous people I have dealt with is a better understanding of the very special relationship that they have with their country and the very sophisticated traditional laws and customs under which their societies operate.  Most Australians will not have had that opportunity, certainly not the opportunity I have had to appreciate those things and the opportunity to see to a degree the country through their eyes.  It has been a very great privilege.  I want to remark upon what I have almost invariably found to be the commitment and effort and reliability and the quality of the many counsel who have appeared in the cases before me over the last 20 years.  If I was ever in doubt about the utility of counsel in refining issues in a case, focusing the submissions and facilitating the quality of the ultimate judgment, my experience over that time has dissipated that doubt.  I’m grateful to the many counsel who have performed that role with great distinction.  Many of you are here today.  I would like to thank them all.  

Their role in the speedy administration of justice is a critical one and I recognise that counsel do not work in a vacuum and behind counsel there are solicitors who equally contribute to the efficiency, effectiveness and quality of the Court, justice which the Courts deliver.  They do so often in a very selfless way and at considerable personal cost.  They, too, deserve commendation.  Before I conclude, Chief Justice, I would like to make a few particular remarks directed to you or about you.  That is not simply because I regard you as a close friend and I am sure we will continue that friendship in the future.  We came onto the Court within a few years of each other, but I have seen in the last several years, as you have acted as Chief Justice of the Court, your commitment to the efficient administration of justice in Australia and the quality of its delivery through our Court.  It is visionary.  It focuses on the delivery of justice to all.  It is wise and it is international in perspective.  I am very grateful for the opportunity to have worked in a Court with you as my Chief Justice and I have every confidence that the Court under your leadership will continue to be a very significant Court in the delivery of justice in Australia and in supporting jurisdictions outside Australia whose resources and experience is less than our own.

There is another family I should mention.  It has given me great pleasure and great support during my time as a judge.  It is my chamber’s family.  My executive assistant Anne Gorgula and my associates assembled here today, some from Hong Kong, some from London, from the various States of Australia, constitute that family.  The chambers of a judge operates as a small team of three.  The oil in our chambers that made it work is Anne and the intellectual stimulus of the chambers is that of the brilliant young and now not-so-young lawyers who shared a year of their lives with me.  I cannot speak too strongly of the pleasure that I have invariably had with the team of three each year of my judicial life.  It has been fantastic.  Each of my associates has progressed on a great life path, not all in the law, with a special mix of talents and interests which they have had.  I’m absolutely delighted that they are here today, all but three of them who are here in spirit, but could not attend, one because she has just had another child, but they are here to see me off.  

We will keep in touch.  Anne and I have many chambers children and a few chambers grandchildren.  I need not say how much I have relied on Anne.  Her commitment, her skill, her calmness under pressure and her lovely personality;  what a blessing to have had to work in that environment.  In the wider Court family each of the South Australian Registrars I have worked with and all of the chambers’ teams on level 11 – the registry teams, the librarians and the Court officers – could not have been more committed or professional in what they do.  In South Australia we are very proud of our registry team.  They are all extremely important elements of the Court’s proper functioning.  And down on my right I want to mention Warwick Soden, the Registrar during my time as a Judge.  I spent a little time on Court committees, as you have heard, so had a bit to do with him over the years.  His counsel and wisdom, his expertise and his company have been very valued.  Well, this is the last time any of you will have to listen to me in respectful silence.  It is now the end.  Over the weekend I had my attention drawn to a bleak description of reaching this stage in life, this statutory senility.  The quote is this:

The invisible turning point where we stop respecting the old and begin punishing them for existing.

As with others who have reached the statutory age of retirement in our Court and elsewhere, I am confident that that is not the future for me, at least not yet.  I shall rage against the dying of the light, including by maintaining and enhancing my dealings with my friends within and outside the law, by coffees and lunches with Kate and perhaps by a few other activities with and without acronyms as well.  Thank you for your attendance today.

ALLSOP CJ:   The Court will now adjourn.

ADJOURNED	[10.42 am]