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FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

FOR THE FAREWELL OF

THE HONOURABLE JUSTICE DOWSETT

PRESIDING JUDGES

The Honourable James Allsop AO, Chief Justice
The Honourable Justice Dowsett AM
The Honourable Justice Greenwood
The Honourable Justice Rares
The Honourable Justice Tracey AM RFD
The Honourable Justice Logan RFD
The Honourable Justice McKerracher
The Honourable Justice Reeves
The Honourable Justice Perram
The Honourable Justice White
The Honourable Justice Derrington
The Honourable Justice Thomas
The Honourable Justice SC Derrington

GUEST OF THE BENCH

The Honourable Jeffrey Spender QC

BRISBANE

4.30 PM, THURSDAY, 26 APRIL 2018

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:   Welcome to this ceremonial sitting of the Court to farewell our colleague, Justice Dowsett.  The judges of the Queensland Registry and myself are joined on the Bench today by a number of other senior judges of the court that have come to honour Justice Dowsett:  Justice Rares, Justice Tracey, Justice McKerracher, Justice Perram, and Justice White.  We’re also joined on the Bench by a former Judge of the Court and our former colleague, the Honourable Jeffrey Spender QC.  Justices Collier and Rangiah are unable to be present today, being on judicial business in Papua New Guinea and Western Australia.  They send their apologies.  

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

Justice Dowsett, I acknowledge the presence here today of members of your family, your many friends and a large contingent of your former associates.  I also acknowledge the presence here today of a number of distinguished guests;  the Governor of Queensland and the former Chief Justice of the Supreme Court of Queensland, his Excellency the Honourable Paul de Jersey AC and Mrs de Jersey;  the Chief Justice of the High Court of Australia, the Honourable Susan Kiefel AC;  the Judges of the High Court,  the Honourable Justice Patrick Keane AC and the Honourable Justice James Edelman;  the Honourable Ian Callinan AC QC;  the President of the Court of Appeal, the Honourable Justice Walter Sofronoff;  the Deputy Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court, the Honourable Will Alstergren;  Judges of the Court of Appeal of Queensland;  Judges of the Supreme Court of Queensland and retired judges of the Supreme Court of Queensland; judges of the Family Court of Australia; Judges of the Federal Circuit Court; judges of the District Court of Queensland; and members of the Magistrates Court of Queensland.

I also note the many apologies received from those who wish to be here today but were unable to be.  These included the Attorney-General of the Commonwealth of Australia, the Honourable Christian Porter MP;  the Chief Justice of Queensland, the Honourable Catherine Holmes;  the Chief Justice of the Family Court, the Honourable John Pascoe AC, CVO;  the former Chief Justice of this Court, the Honourable Michael Black AC;  the Chief Judge of the District Court of Queensland, the Honourable Kerry O’Brien; and also Mrs Gillian Pincus.  We are joined today by members of the Native Title Tribunal and its Registrar, Ms Chris Fewings and I also acknowledge the presence of a number of many Registrars and former Registrars of this Court.

At the Bar table, the member for Brisbane, Mr Trevor Evans MP is representing the Attorney-General;  the Solicitor-General of Queensland, Mr Peter Dunning QC;  Mr Christopher Hughes, Vice-President of the Australia Bar Association;  Mr Sandy Thompson QC, President of the Bar Association of Queensland;  and Mr Ken Taylor, President of the Queensland Law Society.  

Justice Dowsett, the size of the gathering of people here today illustrates the high regard in which you are held by us all.  You have been a judge of this Court for just short of 20 years, having been appointed on 14 September 1998.  If I may put it this way, you have been a stalwart of the Court.  Your appointment in 1998 came after an already distinguished judicial career in the Supreme Court.  You had been a Judge of the Supreme Court of Queensland since 1985 and your appointment at the tender age of 37 was a testament to your skill as a barrister, as was your taking silk after only 10 years at the bar.

The high regard in which you are held by the judges of that Court can be seen by their presence here today.  At your swearing in as a member of the Supreme Court, the then-President of the Bar Association, Mr Callinan, spoke of your large and varied practice that was not confined to any narrow area.  That very same thing can now be said of your work on this Court as well as on the Supreme Court beforehand.  The scope and volume of the work undertaken by this Court has expanded dramatically during your time on the Bench.  Your appointment came a year after the Australian Parliament made the amendments to section 39B of the Judiciary Act 1903 (Cth), transforming this Court into a Court of general federal civil jurisdiction.  The close temporal relationship between those amendments and your appointment is fitting, given the contributions you have made to all aspects of the Court’s broad work from the commercial sphere through migration, native title, industrial, intellectual property - everything.

In addition, you have been a tireless contributor above and beyond the call of duty to the administration of the Court, which has benefited greatly from your dedication and leadership in the areas on which you have taken responsibility.  Such contributions are essential for the Court’s efficient and effective functioning.  As Chief Justice, I have greatly appreciated your wise counsel, insight and experience when I have needed to discuss matters of concern, whether as a national consulting judge in the last four years or just unofficially.  You also served with great distinction for two years as one of the national appeals coordinating Judges after the reforms to our national appeal structure which were undertaken in 2016.

I personally thank you for your work in helping make that system a success.  You have been an integral and active member of numerous Judge’s committees throughout your time on the Court, including the National Practice Committee;  Electronic Court File Committee;  the Rules Committee;  Criminal Procedure Committee;  Policy and Planning;  Native Title;  Corporations;  Bankruptcy;  Intellectual Technology;  Admiralty Appeals;  Judicial Education;  and the Finance Committee.  I would also like to acknowledge the unofficial role you have played as a senior Judge of the Federal Court in Queensland and particularly the steps that you have taken towards maintaining relationships with our judicial colleagues in this State. 

The cordial relationship between the Supreme Courts of this country and the Federal Court is now a clear manifestation of the existence of a true institution of an integrated judiciary in this country and it is the work of people such as yourself who brought that about.  Your  contribution to the development of this Court as a truly national Court, particularly through your willingness to hear matters across Australia from Queensland to Tasmania, from Perth to Sydney, has been – and should be – recognised.  

Your judgments have always displayed your breadth and depth of experience and legal knowledge.  They are marked by a command of legal principle, a capacity for clarity and succinct expression and they are underpinned fundamentally by your strong and overriding sense of justice.

They also reflect an unerring ability to discern the real issue before the Court.  As I alluded to earlier, your judgments span the work of a Court and include matters relating to all areas of the Court’s work.  In the Full Court, you have sat on some of the most significant commercial litigation that has come to this court during the time you have been here:  the Seven Network v News, Sydneywide Distributors v Red Bull, the Australian Competition and Consumer Commission v PT Garuda;  Samsung v Apple;  and Brookfield Multiplex v International Litigation Funding Partners are mere examples.  

The first instance matters that you have presided over have been similarly precedential.  Your judgment in Aksu v Minister for Immigration was one of the earliest cases to consider section 501 of the Migration Act 1958 (Cth), a provision that has since become a major focus of the Court’s migration jurisprudence in the original jurisdiction.  In your reasons, you explored the scope of the Minister’s discretion under section 501, a provision under which convicted criminals are often deported, and ultimately concluded that a Minister’s adoption of the direction as binding upon him had the result that the Minister had inappropriately fettered his own broad discretion.  Your reasons demonstrate your understanding of the nature and limits of public and executive power and an appreciation of the Court’s role and limits in reviewing its exercise.

In Temple v Powell, in 2008, you provided a cogent illustration of the fixing of civil penalties in the industrial sphere and the principles relevant to the exercise of that power.  I should also mention the case of the ACCC v Danoz Direct, a misleading and deceptive conduct case involving an interestingly named product, known as the Abtronic, that would sold through those infomercials that apparently appear so commonly on morning and early morning television.  Not only did your judgment deal with the substantial evidentiary material, but it also provided guidance as to the framing of relief in such a case, and particularly with respect to declarations and compliance programs.

The matters in your docket have also been sensitive in nature.  In one of your final cases, ASIC v Cassimatis, you determined that pecuniary penalties required to be paid by the directors of Storm Financial.  Much earlier in your time in the Court you were asked to deal with an appeal from the AAT in the Brisbane Airport Corporation v Wright, in which the Member for Griffith at the time was a respondent and, again, more recently, you dealt with the well-known case involving section 18C of the Racial Discrimination Act 1975 (Cth), Prior v Wood.

Given your experience at the Bar and on the Supreme Court, you have also been able to contribute to other jurisdictions, particularly through your services as an additional Judge of the Supreme Court of the Australian Capital Territory.  Such work included traditional criminal law work, to which you were so well suited, given your contributions to the jurisprudence in Queensland in criminal law.

Native title matters have also been a particularly significant component of your work.  Native title is perhaps the most unique of all the areas over which this Court has exclusive jurisdiction, for it involves this Court recognising, through the powers given to it under statute, title that has been in existence through the customs and traditions of traditional owners for millennia.  As the Native Title Case Management Judge in Queensland you adopted an approach to the Court’s management of such matters that ensured that the wishes of traditional owners, not just their lawyers, were heard and respected.  You travelled across the state conducting regional callovers to enable this to occur.  It has been suggested to me that this approach stemmed from your strong personal sense of justice, your desire to ensure that the Court delivers justice according to law.  With that suggestion, I wholeheartedly agree.  And this demonstrates what all those who know you appreciate, that your deep learning in the law extends beyond a comprehensive knowledge of its rules and principles to an understanding that the law is underpinned by people and values and that is people that the law is about.

In the Waanyi case, which involved a claim by those people over lands near the Gulf of Carpentaria, you expressed the principle that the composition of a native title claim group is determined in accordance with traditional law and custom.  Jurisprudentially, that decision was significant for that principle, however, this reasoning also demonstrated your deep appreciation for Indigenous culture and custom and of Indigenous people, which is the entire basis of this jurisdiction.  

In the case of the Quandamooka people of North Stradbroke Island by way of two consent determinations you recognised exclusive and nonexclusive Native Title rights over parts of both the land and waters around that island.  Your judgment commenced with a history of European settlement of Morton Bay and on Stradbroke Island and its consequences for the Quandamooka people.

You also recorded the members of the families who form part of the claim group and their own history and connection to the land, showing once again your regard for the human features that are inherent in recognition of Native Title.  At paragraph 21 of that judgment you wrote:

I have not come here today to give anything to the Quandamooka people.  These orders give them nothing.  Rather, I come on behalf of of all Australian people to recognise their existing rights and interests which rights and interests have their roots in times before 1788, only some of which have survived European settlement.  Those surviving rights and interests I now acknowledge.  In doing so I bind all people for all time.

That passage together with your other contributions to Native Title jurisprudence demonstrates, if I may respectfully say, the appropriateness of your recent appointment as the President of the National Native Title Tribunal as President to commence tomorrow.  

In 1989 a decision was made by the Australian Parliament to transform this Court into one that was self-administered, as the High Court had been since 1979.  If I may say so, it was bold, visionary and courageous.  It was the product of the cooperation of Sir Nigel Bowen and the then Attorney-General the Honourable Lionel Bowen.  It was and is a model of judicial administration that has great potential advantages for the public in the administration of justice.  However, it was and is a model that by itself does not produce success.  For its success as a model of efficient and effective judicial control of the institutional delivery of the judicial power of the Commonwealth great demands it placed on the Judges of the Court and upon the Chief Justice to manage and administer a large modern public institution.  The Chief Justice and the principal registrar and chief executive officer need dedicated, loyal, independent-minded and fearless advice from experienced colleagues.  It is vital that this advice be directed to the value-driven interests of the Court as a separate arm of government serving the people of Australia and not only to the interests of incumbent Judges.  You have always understood this.  You have always given dedicated, loyal, independent-minded and fearless advice to me and to Warwick Soden framed by your perception of the interests of the people of Australia in the stable, strong, independent and accountable functioning of this Court with a recognition that what Judges need to fulfil their function in that enterprise is not a personal entitlement but an institutional feature of necessity.  I know that I can speak on behalf of the Honourable Michael Black and the Honourable Patrick Keane in thanking you for the role you have played at our sides in the life of this Court.  

Speaking for myself, I wish to thank you for your support, advice and enthusiasm in the work of the last few years and the changes to the Court operations that have not always been easy but have always been intense and time consuming.  Whatever has been achieved has been your achievement as much as that of anyone else.  Thank you for your service to this Court, to the nation and to the people of Australia, and thank you for your friendship.  We are all sorry to see you leave this bench, but it is a matter of remark that you will continue to serve Australia in your new role as the Native Title Tribunal President.  This is important and challenging work.  Your appointment befits someone of your expertise, values and integrity and will take the Tribunal forward with its deeply important work.  

Mr Evans, Member for Brisbane representing the Attorney-General.

MR T. EVANS MP:   May it please the court.  May I begin by acknowledging the people of the Turrbal region, the traditional custodians of the Brisbane area, and pay my respects to all of Australia's Indigenous peoples.  It's a great honour to be here today on behalf of the Government and the people of Australia to celebrate the career of the Honourable Justice John Dowsett AM.  Today we recognise your Honour's contributions to the legal profession and the Australian community over 32 years on the bench.  

This encompasses over 13 years on the bench of the Supreme Court of Queensland and more than 19 years as a Judge of this Court.  Your Honour has also served as an additional Judge of the Supreme Court of the Australian Capital Territory since 2004.  The Attorney-General, the Honourable Christian Porter MP regrets that his ministerial commitments prevent him from being here today.  He asks that I convey the Government's sincere appreciation for your Honour's contributions to this Court and pass on his best wishes for your upcoming term as President of the National Native Title Tribunal.  

The high regard in which your Honour is held is demonstrated by the large number of esteemed guests that are present here today.  These include his excellency the Honourable Paul de Jersey AC, Governor of Queensland;  the Honourable Susan Kiefel AC, Chief Justice of Australia;  the Honourable Patrick Keane AC, Justice of the High Court of Australia;  the Honourable James Edelman, Justice of the High Court of Australia;  the Honourable Ian Callinan AC QC, former Justice of the High Court of Australia;  the Honourable Justice William Alstergren, Chief Judge of the Federal Circuit Court of Australia;  the Honourable Walter Sofronoff, President of the Queensland Court of Appeal;  other current and former members of the judiciary and members of the legal profession.

May I also acknowledge the presence of your family, including your sister, Judy, and brother, Grant, who proudly share this occasion with you.  A full exposition of your Honour’s achievements would occupy more than my allotted time permits today.  Therefore, I will focus on a number of key qualities and experiences that have marked your distinguished career.  I’m told your Honour’s time at the Brisbane Grammar School had a significant influence on your life.  You excelled as a student.  Alongside serving as debating captain you were also involved in public speaking and the school’s cadet corps, managed sporting teams and were part of the ..... club.

It was clear to all that your sharp intellect would take you to great heights.  Your Honour completed the Bachelor of Arts and Bachelor of Law with Honours at the University of Queensland.  While completing your law degree your Honour served at the Queensland University regiment and army reserve unit affiliated with the university.  Over the course of your military career you rose to the rank of army reserve company commander.  Your Honour has been described as being an intelligent, thoughtful and wise leader.  I understand you could draw the best out of people with your easy charm, considerate manner and expert knowledge of whatever subject you were addressing.

You encouraged individuals to reach their potential through your guidance and mentorship.  At a time such as this it’s appropriate to reflect upon your Honour’s accomplishments in the legal profession.  Your Honour was called to the bar in 1972, having undertaken two years of articles with Feez Ruthning.  It has been noted that you particularly relished the adversarial aspect of the work of a barrister.  This has led one of your colleagues to describe you as the Australian Bar’s leading example of the happy warrior.  Your prodigious talent resulted in you taking silk in 1982 at the age of 34 after almost 10 years at the bar.

Just three years later at the tender age of 37 years your Honour was appointed to the Supreme Court of Queensland on 29 July 1985.  At your swearing in then Chief Justice Sir Dormer Andrews observed that you were born on 27 April 1948, and noted that, “From my point of view that is a rather recent event.”  Your Honour was appointed to this court on 14 September 1998.  One of your Honour’s most significant contributions to this court, I understand, was the efficient management and resolution of Native Title cases.  Much of the court’s success in dealing with these cases fairly and efficiently has been attributed to your Honour’s managerial and organisational skills, and your deep commitment to justice.

It’s fitting then that upon your retirement from the bench you will take up the role of president of the National Native Title Tribunal.  Alongside Native Title law I understand that your Honour has been influential in the development of a broad array of areas of jurisprudence.  These include corporation law, competition law, intellectual property, especially patents, tax law, and this court’s criminal jurisdiction and cartel offences.  While your Honour is renowned for your legal prowess I understand that your legacy beyond the courtroom may be even more indelible.  Your Honour took the judicial oath, judicial independence and the court’s interests very seriously, and fiercely resisted any threat to erode them.

I’m told that your Honour has also been a valued adviser to each of the chief justices of the court whom you have served.  The contribution to the development and role of specialist panels and national practices areas of this court, as well as the court’s engagement with government, have been particularly noted.  Perhaps your most enduring legacy will be the scores of barristers, solicitors, judicial officers, academics and law students that you’ve developed over four decades.  Your Honour was one of the originators of the simulated opposed action plans or SOAPS.  Teams of young lawyers conduct simulated litigation over a period of three days under the guidance of senior practitioners and moderated by your Honour.

Your Honour was also a member of the working group that led to the establishment of the National Judicial College of Australia.  You later served on its governing council and were instrumental in devising various training programs for judges and magistrates.  Additionally, your Honour served on the Priestley committee, prescribing academic standards for admission to the profession.  Few have made a greater contribution to the education and training of the nation’s students, practitioners and judicial officers than your Honour.  Your Honour’s colleagues, family and friends have commented that your integrity, honesty and loyalty are central to who you are.

You’re noted to have exhibited tireless professionalism, moral courage and an abiding commitment to fairness in your career and life.  Your Honour’s unflagging earnestness and determination was well noted.  I understand that one never receives anything less than your full attention.

Your Honour is said to have quick and inquiring mind, a keen wit, a spontaneous and enthusiastic approach to life and an enduring loyalty and generosity to family and friends.  Your Honour is known as a family man, in particular, I’m told that you cherish your six nieces and your nephew, an emotion that is much reciprocated.  

Your Honour has continued your association with your alma mater, Brisbane Grammar School, as a long-serving member of the school’s board.  Your Honour was named a member of the Order of Australia on 11 June 2012 for service to the law and to the judiciary, to professional associations and to legal education in the area of litigation and dispute resolution.  

As to your Honour’s hobbies and talents outside of the law, I understand that you have a passion for travel, with Europe being a favoured destination.  I am told that your travels have had a significant impact on you, your understanding of right and wrong, and appreciation for the beauty of this world.  Many of my sources have paid testament to your Honour’s self-taught cooking skills, your lavish dinner parties and family Christmas dinners are legendary, with an abundance of leftovers.  You are not known to do anything on a small scale.  Your Honour, I understand, also loves music and theatre.  I am told you’re frequently given to enthusiastic renditions of your favourite songs, especially “Skimble Shanks the Railway Cat”, from Andrew Lloyd Webber’s Cats, and “Rock and Roll Dreams”, by Jim Steinman.  

On occasions such as these, one inevitably turns to the question of what comes next.  As I have already noted, your Honour will shortly take up the role of President of the National Native Title Tribunal.  I understand that your Honour will also continue to guide and mentor academic staff and students as an Adjunct Professor of the Law School of the University of Queensland.  

In concluding, your Honour, it has been a privilege to be here today to celebrate your remarkable career and longstanding contribution to the community and the profession as a judge of two superior Courts from 1985 to 2018.  On behalf of the Attorney-General, the Australian Government, and the Australian people, I want to thank you for your years of dedicated service.  Your Honour’s integrity and collegiality mark you out as a great Judge, who has served your country, its citizens, and the legal profession with distinction.  I extend to you my sincere best wishes in all of your future endeavours.  May it please the Court.

ALLSOP CJ:   Thank you, Mr Evans.  Mr Hughes, Vice President of the Australian Bar Association.

MR C. HUGHES QC:  May it please the Court, Chief Justice Allsop, Justices of this Court both past and present, Your Excellency and Mrs De Jersey, Chief Justice Kiefel and Justices Keane and Edelman of the High Court of Australia, Judges and Members, both past and present of other courts and tribunals, both Commonwealth and State, including, of course, the numerous Supreme Court and Family Court justices present, amongst them, Chief Justice Alstergren, also Chief Judge of the Federal Circuit Court and the President of the Queensland Court of Appeal, my learned friend, Mr Thompson, Mr Taylor and Mr Evans, distinguished guests, family members, ladies and gentlemen.  On behalf of the Australian Bar Association and the barristers of the Commonwealth of Australia I’m delighted to appear today to praise and thank Justice Dowsett for his contributions to the law, to legal education and to the community.

Your Honour is well known and well liked as a judge not only by the barristers of Queensland for whom my learned friend Mr Thompson will speak, but by our profession throughout Australia.  It’s just as well that you’re well‑known and liked as a judge because you spent such precious little time at the Bar.  But such is the life of an adolescent prodigy.  As we’ve heard, after 10 years came your appointment of silk at the tender age of 34, and shortly thereafter your elevation to the Supreme Court at a mere 37 years of age.  These statistics border on the indecent, although you share them with a couple of your peers, your immediate cohort, who I shall mention briefly.

The President of the Australian Bar Association, Mr Hutley SC from Sydney, sends his particular regards.  He wanted to be here to recognise your Honour and your achievements, but I wanted to be here even more, and I only had to cross the street.  Whereas even though we live in a federalist state I didn’t have to cross a border.  After remarking that your Honour would be sadly missed Mr Hutley, with the safety of distance, was bold enough to say, as perhaps some other barristers have, that from time to time your Honour had exploded in court.  But he was also honest enough to say that it was almost always a deserved expression of exasperation at what was being said or done in your Honour’s court.

I’ve personally known your Honour for 37 years.  I well remember as a callow youth instructing your Honour on a chamber matter in the Supreme Court.  Sadly the result did not prove to be a highlight of your legal career, although meeting you was an early highlight of mine.  Since then, like many other barristers, throughout the country, I’ve appeared, although not as often as many, before you in this Queensland Supreme Court and the Court of Appeal and in this Federal Court.  You have said, as we’ve heard throughout the land, sometimes in places comfortable, sometimes in places luxurious.

I’ve been reliably informed that from time to time you’ve had to sit in the chairman’s lounge of the Qantas Club dispensing both justice and refreshments, but always according to law.  Like a couple of other members of your celebrated cohorts who bear the names de Jersey and Byrne, who we’re all delighted to see here today, you rarely delayed as the Chief Justice commented, in identifying the most relevant matters for determination in any matter.  You developed a fine reputation with the Bar throughout Australia.  At more recent times members of the Bar in Queensland and I in particular have come to value your company and your advice, particularly with respect to the education and the future of the Bar, and also with respect to the appointment of Senior Counsel.

But more broadly, you’re a great friend of the Australian Bar.  All of those present are, of course, well aware of your Honour’s service in the Supreme Court, and for nearly two decades in this Federal Court, and the significant contribution you’ve made to jurisprudence, particularly in this court as the Chief Justice’s mention.  But perhaps less well-known publicly is the contribution you’ve made to the continuing legal education of the profession.  The barristers of the nation are grateful for the legal education you have provided them.  And if I may border on being cheeky, the barristers of the nation are also grateful for the legal education you have provided the judges to whom – before whom we have to ply our trade.

As John Byrne QC spoke recently, at the Bar your Honour spent an enormous amount of time devising and presenting practical training courses to the lawyers of this State.  But it was on the national front when you became judge that your Honour reached – your Honour’s work reached a new level.  You’re involved, as we’ve heard, in the establishment of the National Judicial College of Australia, and in devising training for Australia’s judges and magistrates.  In particular, you were involved in the national judicial orientation program and, more recently, a week long course for judicial officers in mid-career, no doubt to stave off what some of my colleagues refer to as judgeitis.

Today does not mark the end of your Honour, and I hasten to add in terms of service to the nation, as the Attorney-General has seen fit that there’s a good deal more service for the nation ahead of you as president of the national Native Title Tribunal.  You are only, I’m told, to depart this particular floor of the building, but not to depart the building.  The Australian Bar Association recognises your contribution, thanks you and wishes you well for the next phase of your life.  And we also wish you well for a happy birthday tomorrow.  May it please the court.

ALLSOP CJ:   Thank you, Mr Hughes.  Mr Thompson, the president of the Queensland Bar Association.

MR S. THOMPSON QC:   May it please the court, your Honour, the Chief Justice, your Honour, Justice Dowsett AM, your Excellency, the Governor of Queensland and Mrs de Jersey, your Honour, the Chief Justice of Australia, Justices of the High Court, the Honourable Ian Callinan AC QC, Justices of the Federal Court, President of the Queensland Court of Appeal, Deputy Chief Justice of the Family Court of Australia, Justices of the Supreme Court of Queensland and Justices of the Family Court of Australia, current and retired members of the judiciary, distinguished guests, Mr Evans, Mr Hughes of Queen’s Counsel, and Mr Taylor, President of the Queensland Law Society.

Members of the profession, ladies and gentlemen.  Justice Dowsett, I have the Honour to represent the barristers of Queensland on this occasion, which we acknowledge and thank your Honour for your extraordinary service to the administration of justice, to legal education, to judicial education and to the community at large.  Going third in speaking makes it difficult to avoid repetition, so I trust that your Honour will bear with me to the extent that there is repetition.  You started your career as an advocate as captain of debating at Brisbane Grammar school.

You were called to the Bar in 1972 and appointed Queen’s Counsel in 1982 after only 10 years as junior counsel, an acknowledgement in itself of your Honour’s skill and reputation as an advocate.  Three years later in 1985 at the age of 37 you were appointed a justice of the Supreme Court of Queensland.  At the time of taking silk your Honour had an extremely busy and commanding commercial practice, as well as a practice in many other areas of the law.  You shared chambers on level 18 of what was then called the MLC building with three other busy commercial juniors, all of whom are here today to join in recognising and honouring your contribution.

John Byrne QC, a debating competitor from school days, later to be appointed to the Supreme Court of Queensland, and who retired recently after serving as the senior judge administrator of that court.  You outlasted him.  Edward Lennon QC, also here, and Phillip Morrison, now a Justice of the Queensland Court of Appeal.  When Byrne, Dowsett and Lennon all took silk their chambers on level 18 of the MLC building was a formidable centre of commercial advocacy.  Your Honour appeared as counsel in a number of important cases.  In the High Court of Australia in the well-known contract rectification case of Pukallus v Cameron (1980) CLR 447 your Honour’s submissions were described in the reasons of one of the justices as a clear and forthright presentation.

As barristers we recognise that such a judicial accolade is rarely conferred, even more rarely from the High Court of Australia.  It comes to only the most exceptional advocates.  Many present today, including myself, are fortunate enough to be briefed as your Honour’s junior, an opportunity to observe a skilled advocate at close quarters.  Your Honour’s style of advocacy eschewed flamboyancy and imprecision.  But more than that, your Honour and the members of those level 18 MLC chambers were famous for their collegiality, particularly to younger members of the Bar.  They stood then and remain in the memory of those who enjoyed that collegiality as exemplars of the very finest attributes of the Bar.

It was a significant loss to the Bar and a momentous gain for the Supreme Court of Queensland when your Honour, and a short time later Justice Byrne, were appointed to the Bench after such a very brief period as leaders of the Bar in this State.  Your Honour served on the Bench, as we have heard, for a period of 13 years.  And as we have heard, your Honour was appointed as a Justice of the Federal Court of Australia in 1998, and has served on this Bench for a period of almost 20 years.

Your Honour has also been an additional justice of the Supreme Court of the Australian Capital Territory since 2004.  Over your extraordinarily long period on the Bench your Honour has presided over a vast array of important and often challenging cases both at first instance and as an appeal judge in the Full Court of the Federal Court of Australia.  You have undertaken and fulfilled that challenge efficiently, fairly and with high intellect.  Although regularly deploying a sharp wit I can’t say that I have witnesses explosions referred to by Mr Hutley of Senior Counsel, but perhaps, like your Honour, from time to time I have also found some of our sovereign colleagues exasperating.

But for my part, and I know that it has been the experience of many of my colleagues, it has always been a pleasure to appear before your Honour.  But knowing also that your Honour expected counsel, who appeared before you, to be properly prepared, and to present cases with a high degree of competence.  Your Honour was made a member of the general division of the Order of Australia in 2012 for service to the law and to the judiciary to the professional associations and to legal education in the area of litigation and dispute resolution.  Throughout your career both at the Bar and on the Bench your Honour has taken a keen and active interest in teaching advocacy.

Over the years your Honour has given a number of papers and lectures to the Bar Practice Course in Queensland and to the Bar generally.  Notably amongst them, a paper entitled Pitfalls for Young Barristers directed, I should mention, not only to young barristers but to old barristers as well.  But often, although presented in 1988 it has been referred to in teaching barristers, young advocates and old, in the art of advocacy because it contains such an impressive number of pointers for the young and old advocate alike.  The Bar Association of Queensland appointed your Honour a life member in 2010 in recognition of your extraordinary contribution to legal education, and in particular for the Bar in the development of advocacy skills for its members.

Your Honour was the chair of the Bar’s association – the Bar Association’s continuing professional development committee from 2004 to 2011, and has continued to be involved since, having most recently delivered and enlightening but perhaps misnamed keynote address at the Bar Association’s annual conference in March this year.  Your Honour has been a community ordinary member of the college of law since 2011, was appointed an honorary master of laws and a fellow in 2016.  Your Honour has been the chair of the University of Queensland Law school advisory board since 2014, and was appointed an adjunct professor in the University of Queensland TC Beirne School of Law in 2017.

Your role and education has not been confined to the Bar.  As has been mentioned, your Honour has also played a pivotal role over the years in judicial education.  The various positions and roles which your Honour has taken in that regard have been recited both by the Chief Justice and by others speaking today.  And I won’t repeat them, because they are legion.  Your Honour is about to embark on a new challenge as president of the Native Title Tribunal.  To breach copyright and to adopt some lyrics from the late 1960s American country and rock band Alabama, you can’t keep a good man down.  On behalf of the Bar Association and its members I extend to your Honour our gratitude for your Honour’s service to the law, and particularly to legal education and to the profession in Queensland and throughout Australia.  We extend to your Honour our best wishes for your new future role.  May it please the court.  

ALLSOP CJ:    Thank you, Mr Thompson.  Mr Taylor, President of the Queensland Law Society and representing the Law Council of Australia.

MR TAYLOR:   May it please the court.  Your Honour, the Chief Justice, your Excellency, the Governor and Mrs de Jersey, Chief Justice of the High Court, Justice Dowsett and family, all other serving and retired judicial officers, Mr Evans, Mr Hughes, Mr Thompson and Mr Dunning, distinguished guests, members of the profession, ladies and gentlemen.  It’s an honour to be here today on behalf of the Law Council of Australia and the solicitor’s branch of the profession to celebrate your Honour’s long and distinguished legal career.  At the outset, I would like to pass on the sincere apologies of the President of the Law Council of Australia, Mr Morry Bailes, who is unable to be here today.

Mr Bailes has asked me to pass on his and the council’s best wishes to your Honour, and I happily do so.  Being the fourth speaker from the bar table today, your Honour, I will be brief in my remarks, but echo the platitudes from Mr Evans, Mr Hughes and Mr Thompson.  It may be that I’m picking my words a little more carefully today, knowing your Honour’s views on the proper and precise use of the English language, no doubt first honed in your capacity as captain of the Brisbane Grammar School Debating team.  I note that this would explain, at least in part, your appreciation of the playwright, Tom Stoppard, whose way with prose is legendary.  In his play, The Real Thing, the character Henry, at one point, emphasises the importance of words by noting that words should be respected, and stating:

If you get the right ones in the right order you can nudge the world a little, or make a poem which children will speak for you when you’re dead.

It is fair to say that throughout your Honour’s career you did get the right words in the right order, and that law students will certainly be reading them for many years to come.  Your Honour’s eloquence and legal acumen have ensured that your career has been one carried out in the rarefied air of the upper echelon of our profession, having been appointed a QC in the early 80s.  Following a distinguished career at the Bar, your Honour accepted appointment to the Supreme Court in 1985 and then moved onto the Federal Court in 1998.  

Your Honour’s abilities and dedication to your craft have been recognised with many awards, including become a member of the Order of Australia, and becoming a life member of the University of Queensland Law Alumni.  These awards recognise your Honour’s admirable commitment to the education of later generations of lawyers, meaning the benefits of your wisdom will continue to flow through the profession for many years after your retirement from this Court.  The result is a legacy that would be envied by any member of our profession, and one which stands as an example to others of how much good can be done when knowledge is shared enthusiastically and freely.  Our profession will be in your Honour’s debt for some years to come.

On behalf of the Queensland Law Society, the Law Council of Australia and their members, I salute your Honour’s efforts and thank you for the benefit of your wisdom these many years.  Our profession will be the poorer for your leaving, but has been enriched by your time on the Bench.  We wish you every success and enjoyment on the National Native Title Tribunal, and, when it applies, a long and fruitful retirement, and assure your Honour that you will be dearly missed.  May it please the court.

ALLSOP CJ:   Thank you, Mr Taylor.  Justice Dowsett?

DOWSETT J:   Your Excellency the Governor and Mrs de Jersey, the Honourable Chief Justice Kiefel, Justice Keane, Justice Edelman, the Honourable Ian Callinan, ladies and gentlemen, I trust that it will be not be taken amiss if I do not mention specifically any more of our guests.  I would probably have to mention all of you.  I commence by thanking his Excellency and Mrs de Jersey for their presence.  It is not often that vice-regal persons attend at Courts.  I am conscious of the honour which you do me by your presence.  That is not the only honour that you have done me in recent weeks.  We have been friends for a long time.  

I thank you, Mr Evans, for your remarks on behalf of the Attorney-General.  I should add that I very much appreciate the Government’s expression of confidence in my capacity to attend to the affairs of the National Native Title Tribunal.  I thank you, Mr Hughes and Mr Thompson, for your remarks on behalf of the Australian Bar Association and the Bar Association of Queensland.  You are both old friends, going back to my time in practice.  My association with the Bar has always been cordial and professionally rewarding, although to put it in that way is to greatly understate the truth.  I thank you, Mr Taylor, for your remarks on behalf of the solicitors of Queensland and the Law Council of Australia.  

I was articled to Mr Peter Bray at Feez Ruthning & Company and worked there for a further year before going to the Bar.  I learned much about the law and lawyers that I would not have learnt at the Bar save through bitter experience.  My relations with the solicitors’ branch have also always been cordial and productive, and again, this is an understatement.  I thank you, Chief Justice, for your kind remarks.  I shall deal with you later.

I must thank many others.  I start with my family.  As has been said, two of my siblings are here:  my brother Grant and my sister Judy.  They are here with their spouses, Jann and Rod.  Two of Grant and Jann’s children, my nieces Trisha and Shelly, are here, as is one of Judy and Rod’s children, my niece Heidi.  My other sister Robin and her husband Noel are on a long-planned trip to Tasmania.  One of their children, my niece Kelly, is here with her husband Morgan.  My nephew Matthew, and my other nieces, Julia and Holly, are not in Brisbane.  

My mother is still with us and in quite good condition for a woman of 93, going on 94 as she keeps reminding us.  She is no longer up to events of this kind, but she has by no means given up on life.  My father died in 1993.  I still miss him.  At my swearing in on the Supreme Court, I said something about my debt to my parents.  Any child who has been even slightly successful in life understands that debt.  I need say no more about it.  I am grateful to my family for their support and encouragement.  They have kept my feet on the ground and help me to understand social changes and pressures.  Although Judges do not live in the cloisters, we are sometimes insulated from such things.

I make special mention of a handful of people who have supported me as colleagues, in particular those with whom I shared chambers at the Bar:  Ted Lennon QC, the Honourable John Byrne QC, and Justice Phillip Morrison.  I must add to that list Justice David Jackson, who was, I think, my first pupil, and, of course, his Excellency.  Of those who were mentors at the Bar, I mention particularly Bruce McPherson, who is no longer with us, but Jacqui, however, is here.  I mention also Bill Pincus, also no longer with us.  Of those still with us, there is David Jackson QC, who now practices in Sydney, Glen Williams, who is here with his wife Roberta, and Des Derrington, who is here with his wife Trish.  

Among solicitors with whom I have long associations, I mention Peter Bray, to whom I have already referred;  Andrew Greenwood and David Thomas, now members of this court;  Brian Bartley, Ray Lindwall, Ken MacDonald and Jeff Thompson.  There are many others present and absent whom I would like to mention, but it would take too much time, and I would certainly overlook somebody.

I turn to those who support the judges in the performance of our work.  We could do very little without such support.  Some of these people we rarely see.  Others we see every day.  They include security staff, building maintenance staff, COMCAR drivers and those charges with recording our proceedings.  No doubt there are other groups.  I apologise for any omissions.  Then there are the Court staff in this registry and elsewhere.  The efficiency and reliability of the whom team presided over by the Registrar, Warwick Soden, has become legend in Government administrative circles.  Warwick’s responsibility now extends to administration of the Family Court, the Federal Circuit Court, and, fortunately for me, the National Native Title Tribunal.  

With respect to our operational matters, the hearing and resolution of cases, the Court is presently working through issues associated with the adoption of the National Court Framework.  The efforts of Court staff in the registries and centrally have been vital to our making progress.  In the Brisbane Registry, I have enjoyed great support from two District Registrars, Graham Ramsay and Heather Baldwin;  two directors of Court Services, Jocelyn Green and Kay van Brederode, and a number of Deputy Registrars.  I mention particularly long-serving Murray Belcher and Katie Lynch, and Katie Stride, Michael Buckingham and Scott Tredwell.  

I also recognise the efforts of the library staff, now led by Joanna Fear, and thank them for their efforts.  They form an integral part of our operation.  In the native title area, I have long worked with Chris Fewings, who is something of a legend in native title circles.  She has preceded me in moving to the Tribunal.  I shall be relying on her to guide me in my new role as President.  I do not overlook the other registry staff, including the Court officers, all of whom have contributed significantly to the dignified and efficient conduct of judicial business in and out of Court.  

I come to my chambers staff.  During my years on the Supreme Court, I was mainly looked after by Ms Jenny Turner and Ms Susan Stuart, both of whom are here today.  In the Supreme Court in those days, each of the secretaries worked for two judges.  I can only assume that they consistently felt as if they were subjects of the judgment of Solomon.  In any event, we worked well together and have remained good friends.  I thank them for their attendance.  When I came to the Federal Court, Graham Ramsay suggested that I appoint Ms Roslyn Newbury as my executive assistant.  Roslyn had been working for him.  He told me that her husband, Roger, was a retired army officer.  Knowing a little about the travails of army wives, I concluded that Ros would probably be able to put up with me, and so it turned out.  We worked together through 1998 until early 2014, when she left to spend time with her children and grandchildren.  

In 2014, Ros was succeeded by Ms Robyn McBryde, who has remained with me and is going to the Tribunal with me.  I could not have asked for more from either woman.  Both gave or are giving unstintingly of their time.  Both are intelligent, articulate and charming people, ruthlessly efficient, and entirely discreet.  I will always be thankful for their support and friendship.  I should say that in the Court, the executive assistants perform a significant function in holding things together.  I have admitted many of the other EAs, but I am sure that I have had the best of them.

I turn to the associates.  I have had, I think, 31 associates, gifted young men and women who have generously devoted significant parts of their lives to helping me in my work.  I have said on numerous occasions that for a Judge, the comings and goings of associates are milestones in his or her judicial life.  An associate must be a supporter, a confidante, a travelling companion, a research assistant, a proof-reader, and on occasions, a major-domo.  The ultimate quality of a judgment often depends upon his or her proofing and constructive suggestions.  Associates become a significant part of a Judge’s professional life, just as the Judge becomes part of theirs.  Again, I can only thank those 31 people, some now not so young, for their assistance, friendship and loyalty.

Finally, I must thank my judicial colleagues on this Court and the Supreme Court, and also all other Judges with whom I have had contact over the years.  I particularly thank those who are here today, especially, of course, Chief Justice Kiefel, Justice Keane and Justice Edelman, with all of whom I served on this court, as I did with Justice Gordon.  Whatever the press may say, whatever the public may think, Australia’s Judges are overwhelmingly intelligent, honest, reliable, industrious, tolerant and good fun.  I have known more of them than most.  I confess to being biased in my view, and that such view is based upon impressions rather than statistics, but I at least suspect that no country – no other country is better served by its judiciary than is Australia.  
If we have a challenger, it is New Zealand, but for the moment, I claim that Australia has the edge.  In the present context, I should particularly mention two of my colleagues.  The first is Justice Andrew Greenwood, who has undertaken the organisation of more events to mark my retirement than most of us would attend in a year.  I have greatly enjoyed all of them.  Secondly, I want to thank James Allsop for his friendship and support over the years.  We have had many lengthy discussions concerning the law, Judges, judging and Courts.  He has a deeper understanding of these matters than do most.  Some time ago, James said that he wanted me to enjoy my last year on the Bench.  I have certainly done so.  

I wish to make four points concerning the law and the administration of justice.  Although these points are superficially discrete, they are, in fact, intimately related.  I have been addressing these points in speeches for some years now, so I apologise if you’ve heard some of this before.  However, on this occasion I shall try to demonstrate their combined effect.  The first point concerns legislative drafting.  It was once thought that the law should be so clear that all citizens could at least identify lawful and unlawful conduct.  That proposition seems no more to be recognised by our legislators.  

It is true that the law must now deal with more complex issues than was previously the case.  However, the hallmarks of an intelligent understanding of any problem is the capacity to reduce it to basic propositions.  Commonwealth legislation and to a lesser extent State and Territory legislation frequently fail to achieve this goal.  It is fair to say that much legislation is incomprehensible to the average layperson, and indeed to most lawyers.  I recently spent two days trying to understand how the judicial pension is taxed.  At the end, I had a suspicion as to how this was done but no certainty that my suspicion was correct.

The tax regime is the worst example of this drafting, but it is by no means the only example.  Legislation concerning such important areas as corporations, trade practices and completion are other examples.  It may be telling that in areas where there is international agreement as to the form which particular legislation should take, the position is often otherwise.  The patents legislation, maritime and admiralty legislation, and extradition legislation are all capable of being understood by at least some laypeople and most lawyers.  However, our home-grown legislation seems to reflect a view that if the drafter uses the same words sufficiently frequently and in various permutations and combinations, the resulting legislation will anticipate and deal with every conceivable circumstance which may lead to somebody avoiding the operation of the legislation in question.  That is a fool’s errand.  

The complexity of legislation is relevant to my second point.  It is that in the Courts and in the profession, specialisation is becoming increasingly common, at least in part because it is necessary.  I would not always have said that such specialisation was a good thing, and it does create problems.  The law is not readily compartmentalised.  However, the alternative to specialisation is likely to be very expensive in terms of time and money.  Specialisation in the Sydney and Melbourne professions as to some extent led this Court to adopt a system of national practice 
areas based upon areas of specialisation.  The future of the Courts and the profession lies in this direction.

My third point is that complex legislation and specialisation amongst practitioners is placing increasingly workloads upon judges, although other factors are also contributing to that result.  I have no doubt that over the last five or so years, the workload upon each judge in this Court has greatly increased.  The traditional solution has been to seek the appointment of more judges.  However, in these times of straightened circumstances, we may have to look to other solutions.  The Court is trying to find such solutions, but there is a limit to the extent that presently available judicial time can continue to be stretched to accommodate the additional workload without further funding, perhaps for additional judicial support staff.

Finally, as I have said on a number of previous occasions, the judiciary and the judicial function are now much closer to the centre of our governance arrangements than was the case 20 or 30 years ago.  The Courts, particularly this Court, are closely involved in aspects of law which are fundamental to the Australian economy and the Australian society.  Areas such as intellectual property, taxation, competition, industrial law, native title and immigration are particular examples.  Judicial review has become entrenched in our system of administrative law so that the executive frequently comes under close judicial scrutiny.  

As the Australian Courts have moved away from the English experience, we have become more conscious of the limitations imposed upon the legislative function by the Commonwealth Constitution and to a lesser extent by State constitutional arrangements.  Obligations under international treaties have sometimes had unexpected effects, even when they have not been adopted by legislation.  Thus the Courts, primarily the High Court, are frequently considering the validity of legislation.  It is not unknown for both members of the executive and members of the Parliament to express this dissatisfaction with judicial decisions.  However, the role of the Courts as the third arm of Government is clear and cannot easily be changed – another cause of frustration for some.  Having regard to these matters, it is important that all Judges recognise the need to be supportive of one another and of the institutions of which we are custodians:  the law itself, the rule of law, the Courts and judicial independence.  We must look to the profession for support in this challenge.  

There is little more to be said, save that I am humbly grateful for having had the opportunity to serve as a Judge of this State and the Commonwealth in the long tradition of the Courts of common law and equity.  The single most important future of our society is faith in our fellow citizens and in the institutions by which we govern ourselves.  Of those institutions, the Judges are the most privileged in that they are effectively appointed permanently, not generally being subject to dismissal or recall.  We all strive to justify the trust which underlies that privilege.  Thank you for coming today and for all of your many kindnesses over the years.

ALLSOP CJ:   The Court will now adjourn.