Ceremonial sitting of the Full Court
To welcome the Honourable Justice Banks-Smith and the Honourable Justice Colvin
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE SIOPIS
THE HONOURABLE JUSTICE TRACEY AM RFD
THE HONOURABLE JUSTICE GILMOUR
THE HONOURABLE JUSTICE MCKERRACHER
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE BARKER
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE COLVIN
GUESTS OF THE BENCH:
THE HONOURABLE WAYNE MARTIN AC,
CHIEF JUSTICE OF WESTERN AUSTRALIA
THE HONOURABLE ROBERT FRENCH AC
THE HONOURABLE CHRISTOPHER CARR
THE HONOURABLE ROBERT NICHOLSON AO
4.31 PM, WEDNESDAY, 28 FEBRUARY 2018
ALLSOP CJ: Welcome to this ceremonial sitting of the Court to welcome publicly Justices Banks-Smith and Colvin to the Court. I acknowledge the Honourable Wayne Martin AC, the Chief Justice of Western Australia, who has graciously accepted an invitation to sit on the Bench with us today. Also sitting with us on the Bench are the former Chief Justice of Australia and a former Judge of the Court, the Honourable Robert French AC, and also former Judges of the Court, The Honourable Robert Nicholson AO, and The Honourable Christopher Carr. Sitting on the Bench with me and the Judges of the Western Australian District Registry and the guests are Senior Judges from other Registries: Justice Dowsett, Justice Tracey and Justice Perram.
I acknowledge the presence in Court of the Chief Judge of the Family Court of Western Australia, The Honourable Stephen Thackray, and the President of the Western Australian Court of Appeal, The Honourable Michael Buss, and the Chief Judge of the District Court, his Honour Judge Kevin Sleight, together with Judges of the Court of Appeal, the Supreme Court, the Federal Circuit Court and the District Court. I acknowledge the traditional custodians of the land on which we meet today, the Whadjuk people of the Nyoongar nation, and pay my respects to their elders, past and present. As will be understood from today's ceremony, Justices Banks-Smith and Colvin were sworn in privately earlier this month and have since been put to work.
Mr Macliver, representing the Attorney-General of the Commonwealth.
MR P. MACLIVER: May it please the Court. I would also like to acknowledge the Whadjuk people, the traditional owners of the land on which we meet, and pay my respects to their elders past and present. It is a great privilege to be here today to congratulate your Honours on your appointments as Judges of the Federal Court of Australia. The Attorney‑General, The Honourable Christian Porter MP, regrets that his Ministerial commitments prevent him from attending the ceremony today. He has asked that I convey the Government's sincere thanks to each of your Honours for your willingness to serve as a Judicial Officer and that I pass on his best wishes for what he trusts will be a long and illustrious career on the Bench.
Your Honours' appointments are significant achievements in already distinguished careers. Your Honours' many achievements in the law, as well as your personal qualities, make you exceptional candidates for your new roles. It is a reflection of the high regard in which you are held that so many members of the Judiciary and the Legal Profession are present here today. May I particularly acknowledge The Honourable French AC, former Chief Justice of the High Court of Australia and former Judge of this Court, The Honourable Wayne Martin AC, Chief Justice of the Supreme Court of Western Australia, The Honourable Justice Michael Buss, President of the West Australian Court of Appeal, The Honourable Justice Stephen Thackray, Chief Judge of the Family Court of Western Australia, other current and former members of the Judiciary and members of the Legal Profession.
May I also acknowledge the presence of your families, who proudly share this occasion with you today. Justice Banks-Smith, your husband Kevin and sons Sam and Dominic, and Justice Colvin, your wife Lyn and your three daughters, Madeline, Katherine and Rebecca, and your mother and father, Lillian and Barry. A full exposition of your Honours' achievements and contributions to the law would occupy more than my allotted time permits, so today I will focus on just a few of the qualities and experiences that have marked your careers to date. These will no doubt shape the important contribution you will each make to this Court.
I would like to say a few words about each of our distinguished appointees. Firstly, Justice Banks-Smith. Your Honour was born in Tasmania and attended St Michael's Collegiate School in Hobart. After completing your schooling your secondary education, I am told that your Honour narrowly avoided a career in medicine, following an unsavoury tour of a cadaver laboratory. I think we're all grateful for that. I'm certain that many members of the Judiciary, the Legal Profession and members of the Australian community that you assisted through your practice in the law, are thankful that you instead did choose to study a Bachelor of Laws at the University of Tasmania.
Graduating with First Class Honours, your Honour was admitted to practice in Tasmania in 1990. It was in the same year that you and your husband, Kevin, moved to Perth where you joined the firm of Parker & Parker, now Herbert Smith Freehills. In your commitment to developing your knowledge of the law, your Honour was awarded a Commonwealth Scholarship to study a Master of Laws at Cambridge University, where you graduated in 1993, again with first class honours. Returning to Freehills, your Honour practised primarily in commercial law, acting for banks and insolvency practitioners, listed companies, property owners and developers and mining companies.
Your Honour quickly progressed through the ranks of Freehills, joining the firm's National Litigation Executive in 2005 and rising to the head of the Perth Litigation Group in 2007. I'm told that this group comprised 10 partners and approximately 60 lawyers and paralegals. It was during this time that you burnished a formidable reputation for your diligence, hard work and commitment to your practice. In 2009, your Honour was called to the Bar, leaving the firm that had begun as your training ground and had quickly developed into your home for approximately 19 years. At the Bar your Honour appeared as both Junior and Senior Counsel and contested Supreme Court and Federal Court matters, including trials and appeals in bankruptcy, insolvency and construction industry cases.
Beyond the Bar, your Honour was committed to the development of junior legal practitioners, having served as a coach at several advocacy training courses and as a member of the Advisory Board of the Law School of Notre Dame University. In recognition of the same skills, personal convictions and insight that have resulted in your appointment to this Court, your Honour was appointed as a Justice of the Supreme Court of Western Australia in 2016. As a Justice of the Supreme Court you brought patience, courtesy and even-handedness to the Bench and I am confident that those qualities will serve you well as a Judge of this Court.
I'm told that shortly following your Honour's appointment to the Supreme Court, you were conscripted without much resistance into the Supreme Court's occasional rock band which has been known as a feature for staff at the Court's annual Christmas party. I'm certain that your talents as a pianist and backing vocalist will be sorely missed. In fact, it is rumoured that an amendment to the Practice Directions is under consideration with Judges from other jurisdictions to make guest appearances in the band in the future.
Your love for music extends beyond your starring position in the Supreme Court's band. I'm told that you were once spotted at an inner-city venue in Perth posing for pictures with the legendary Steve Kilbey of the Australian band The Church. Kilbey was so impressed with having a judicial admirer that he publicly posted the photos himself and, I'm told, recently painted a portrait of your Honour for your birthday. Your Honour has managed to balance your sustained success in the legal field with your family life as a wife and life partner to Kevin and a devoted mother to your sons, Sam and Dominic, who I'm told share your love for music. Your Honour's creativity, coupled with your great intellect, discipline and hard work will place you in a very good stead to serve as a Judge of this Court.
Justice Colvin, your Honour attended Churchlands Senior High School where you met your wife, Lyn, and mother to your three daughters. Your Honour obtained a Bachelor of Laws from the University of Western Australia, graduating with first class honours in 1982 and readily commenced your articles at Robinson Cox, now Clayton Utz, in 1983. Following your admission to the Supreme Court of Western Australia in 1984, your Honour served as an associate to former High Court Justice, the late Honourable Justice John Toohey AC QC, then of the Federal Court, between 1985 and 1986. I'm certain that this experience played an integral role in your Honour's intense commitment to and holistic understanding of the administration of justice and the role that Courts, advocates, parties and witnesses play.
Your appointment marks your return to this Court. But on this occasion, you have earnt the title of justice. Following your associateship, your Honour returned to Clayton Utz, where you continued to cultivate your sound judgment and leadership, which rapidly resulted in your success in becoming a partner of the firm in 1990. In pursuit of developing intimate understanding of the application of the law, your Honour obtained a Master of Laws from the University of British Columbia, specialising in Economics and Competition Law.
Your Honour was called to the Bar in 1995. And as a testament to your hard work and robust understanding of the law, you were appointed as Senior Counsel in 2001. Your ability to distil complex legal concepts meant that you were able to practice in a wide variety of areas, including administrative law, competition law and economic regulation, mining and petroleum, corporations law, building and construction disputes and property law. Your Honour is known for your strong sense of integrity and duty of service to the legal profession. As a lawyer, you are formidable, with a natural flair for advocacy and a piercing intellect. Your Honour's commitment to the administration of justice is unwavering, as evidenced by your role in Westpac v Bell, a 40 day appeal hearing before the Court of Appeal. Described as a mainstay and towering figure at the Bar, your Honour's considered and consistent philosophy as to the ethical practice of the law meant that you were, in many ways, the spiritual centre of the West Australian Bar.
At the Bar your Honour always rose above overly zealous opponents, false issues and interfering clients, remaining acutely conscious of the significant role that the Courts and the law play in society and the need for participants to appreciate the gravity and importance of their work within. I am told that while your Honour has a calm and peaceful demeanour, you are firm on those who seek to obfuscate or manipulate the legal process to meet purely private needs. This characteristic will be fundamental to your success as a Judge of this Court.
Your desire to continuously serve the legal community is evident in your significant contributions to the WA Bar Association Best Practice Guide on preparing witness statements for use in civil cases, which is now regularly made mandatory in case management orders by the Supreme Court of this state. This was also evidenced by your appointment as a Parliamentary Inspector at the Corruption and Crime Commission in Western Australia in 2012.
I am told that your Honour considers his greatest achievement is your family; your wife, Lyn, and your three daughters, Rebecca, Katherine and Madeline. As a father, you were admired for your selfless nature and commitment to your daughter's endeavours, having attended every single netball game and music concert in their careers. Your Honour is an excellent cook, I'm told, with a talent for pairing the perfect wine for each meal. I suspect that this is a skill that you developed through your membership of the Bookless Club, now approaching its 20th anniversary.
Your Honour, like Justice Banks-Smith, has also demonstrated considerable talent as a musician, though you may be the only member of this Court to star in your own musical video. Your musical talents have seen you compose, arrange and perform renditions with your cover band, Lost Boys & the Wendys, and I'm told that your greatest musical achievement to date occurred in 2016, when you wrote, recorded and published a CD for your wife, named Love Songs for White Nights. In all seriousness, both your Honour's appointments to this Court are a testament to your many years of hard work and unwavering dedication to the law and justice.
I have no doubt that you will serve as Judges of this Court with a dedication, diligence, integrity, and commitment to justice, for which you are both are so admired. While your Honours have many attributes to support your appointment to this position, your sound judgments, professionalism and staunch work ethic will make you outstanding additions to this Court. On behalf of the Australian Government and the Australian people, I extend to you my sincerest congratulations and welcome you to the Federal Court of Australia. May it please the Court.
ALLSOP CJ: Thank you. Mr Howard, President of the Western Australian Bar Association.
MR M. HOWARD SC: May it please the Court. It is my privilege to appear this afternoon on behalf of the Western Australian and the Australian Bar Associations. If I may be permitted to say there's also a particular personal pleasure. Of course, everything about being the president of a Bar is pleasurable – it's just that some things are a tiny bit more fun than others. I do not intend to welcome your Honours as a job lot this afternoon. Nonetheless, there are some observations – three in number – which can be made generally.
The first is recently, your Honour, the Chief Justice, described one of your key functions as being the recruiter in chief for this Court. You were quick to observe that the function yielded no spotter's fee. By recognising that, like an AFL list managers responsibilities, the job of recruiting for a team is never done, and, also, recognising that appointment is, of course, a matter for the executive. Your Honour, the Chief Justice, would be well entitled to bask, if only for a little time, in the universal acclaim which has greeted these two appointments.
The second matter is that this successful recruiting drive has taken place notwithstanding that this Court is located in a waste land when it comes to suitable coffee outlets. It is a competitive disadvantage for this registry that the Court does not, to my knowledge, face in any other registry in the country. The third matter is that until as recently as the farewell for his Honour, Justice Gilmour, it was not well-known that welcomes such as these had a constitutional significance as part of chapter 3. On reflection, however, it's perhaps unsurprising that welcomes should have such a dimension.
It has been unkindly suggested by some that chapter 3 has become increasingly significant, and, dare I say it, sexy with an Australian jurisprudence, because it is an opportunity for Federal Judges, albeit usually at the higher level, to talk predominantly about themselves. Today might be thought to be somewhat of a variation on that theme, in that all of us at the bar table would be speaking about, rather than at, you as new Judges. If I may start more specifically with your Honour, Justice Banks-Smith. Consistently with the rigorous research which goes into all such addresses, I had cause in preparing for today to revisit an iconic piece of art from 1993, which seemed particularly opposite to your Honour's welcome this afternoon, especially given that it occurs only about 18 months after your Honour's first welcome to another Court.
I am referring, of course, to the classic film, Groundhog Day, which starred Bill Murray and a groundhog named Phil. Although the film is perhaps not quite art house enough for your Honour, it is not to be forgotten that Groundhog Day does fall within February, which may explain the need for this welcome to occur no later than this afternoon. It would be two tedious to undertake a compare and contrast between your Honour's previous appointment and this one. But aside from your Honour having to concentrate carefully to ensure that you end up in the right carpark in the morning, the only other piece of transitional advice which may be offered is that when your Honour is leaving Telegram Café in the Treasury building, it is best now to turn towards the Terrace than towards Hay Street.
I trust that I will be forgiven if I don't this afternoon reiterate and recite your Honour's personal qualities and characteristics which made you such a suitable appointment for the Supreme Court. I am told that those who keep records of such things had declared that your Honour was no chance of being appointed to this registry. That was because your Honour, it was said, formed part of the minority group, which the previous attorney had appeared to ignore. I speak, of course, of graduates from Cambridge University. Your Honour may have been taken to have well and truly shattered the boater or gown ceiling completely, so much so that your Honour, Justice Colvin, was able to be appointed to the Court with a post-graduate degree from a Canadian university.
On a more serious note, it is of real significance that your Honour is the first woman appointed to this Court at this Registry. If the seamstress fitting your Honour's gown for the Supreme Court remarked "We don't make many of these for women", it can only be imagined what the reaction was to the unprecedented fitting of your two gowns for this Court's work. I have spoken previously of your Honour's personal qualities, temperament, experience and learning, equipping you well for high judicial office. Those observations, confidently made at the time, have been steadily borne out by your Honour's first period as a Judge.
The Bar has every confidence in each of those continuing to be made good in the years to come. If I may now turn to your Honour, Justice Colvin. To describe somebody as being a renaissance figure is often overdone. However, in the case of your Honour it may well be used to describe your eclectic interests outside of practice, which include, but are no way limited to, the pressing of your own olives into olive oil, cooking, musicals and show tunes, and the composing and cutting of CDs. While previously there have been composers who have been lawyers – and, indeed Judges – both in Australia and beyond, as far as I'm aware, your Honour is the only Judge to have made a recording so shortly before appointment with a hope of, or intention for, it to be played on the youth network triple j.
The danger of one waxing too lyrically of your Honour being down with the kids is perhaps best illustrated by your recent reaction to the dress standards of students returning to your daughter's school. It was, to put it mildly, not very youth networky. With your Honour's appointment, there is a self-help support group of your fellow silks, who may now be able to disband. That is the group who have won cases at trial without your Honour's opposition at that level. To have that judgment rolled on appeal, and then in the Appeal Courts to learn for the first time what really happened at the trial. Such outcomes were always the result of your Honour's careful thinking about and framing of the issues, then coupled with your Honour's ability to distil a mass of material, principles and propositions into persuasive and at times compelling advocacy.
I have it on good authority that following the conclusion of two days of such an appeal in a difficult, bitterly fought matter, at least between the litigants, your Honour appeared in the Chambers of your vanquished opponent with a bottle of exceptional champagne. There was no gloating, simply the offer of a drink to recognise the common pursuit of the administration of Justice. It was a typically gracious gesture. The gesture also showed your Honour's deeply held convictions that the practice of law and the administration of Justice should be conducted in the most dispassionate way to the highest possible standard. It was the way you practised without exception. It was an example set to which many of us since aspire. Your Honour was the epitome of what it was to be a Barrister in every good and, I would say, noble way.
It is utterly unsurprising that you served the Bar formally on its Bar Council and as President in 2008 and 2009, and after being on the ABA Executive, you were President of the Australian Bar in 2012. In those roles your Honour was insightful and worked very hard to further the administration of Justice, promote the interests of the Bar and to improve the lot of its members. To recite your Honour's formal leadership positions is to tell only a fraction of the leadership which your Honour provided to the Bar and to the profession. Your Honour always made time when guidance was needed or requested. The wisdom that one received meant that there was always a lot of demands on your time in that respect. Best of all, you were not afraid to express a view that may have not been to the liking of your audience, but that was always done sensitively if, on occasions, firmly.
Your Honour has great compassion and warmth towards people. You were a fantastic advocacy coach for those reasons. People who were lucky enough to watch your Honour work up close were always struck by your Honour's interest in and feelings for people at the margins of the profession and society. That is not to say that your Honour could not be competitive from time to time. It was perhaps unnecessary to say to Justice Corboy that your judgment cheque from the Bell Appeal was bigger than his judgment cheque after the Bell Trial. That was an uncharacteristically unkind boast, especially given that your Honour had, in effect, replaced him in the case on his elevation to the Supreme Court. In any event, for reasons which perhaps do not need to be articulated, I am sure that your Honours the Chief Justice and Banks-Smith, join me in being somewhat less than impressed by such boasting about that particular case.
There is no surprise on your Honour's appointment. The surprise has always been that your Honour has managed to resist the entreaties of various recruiters in-chief for so long. That is not only because of your Honour's eminence. In everything you have done professionally, you have been measured, considered, respectful and have acted with an unshakeable focus on doing the right thing. Your calmness and efficiency ae remarkable and you have worn heavy responsibilities lightly, at least to the outside world. Having said all of that, these words are a pale reflection of the esteem and affection in which you are held by your colleagues in the profession at large.
It is sometimes reported that leading Barristers find the transition from Bar to Bench challenging. I have no doubt your Honour will, to the contrary, take to it like a duck to water. It is very hard to imagine the Bar without your Honour. I am sure, before too long, it will be very hard to imagine this Court without your Honour. It is a gross understatement to say that the Bar, particularly in Western Australia, has lost a leader and a wonderful human being. The Bar congratulates your Honour and looks forward to appearing before you for many years to come. May it please the Court.
ALLSOP CJ: Thank you, Mr Howard. Mr de Kerloy, Treasurer of the Law Council of Australia.
MR K. DE KERLOY: May it please the Court. It's my very great pleasure and honour to welcome, on behalf of the Law Council of Australia, the Law Society of Western Australia and personally, The Honourable Justice Katrina Banks-Smith and The Honourable Justice Craig Colvin, as Justices of this Court and congratulate them on their appointments. It's great to see that your Honour's families and your many friends and colleagues have been able to join with us today to acknowledge and celebrate your appointments.
Before joining the independent bar and carving out illustrious careers there, your Honours worked at and were made partners of and made your professional homes in two of Australia's preeminent commercial law firms. In your Honour Justice Banks-Smith's case: your Honour was employed at Parker & Parker in 1990, became a partner of that firm in 1986, and then at Freehills upon its merger with Parker & Parker in 1997. You headed the Perth Litigation Group for the firm from 2007 and 2009. I had the pleasure of being in partnership with and working closely with your Honour after the merger.
In your Honour Justice Colvin's case, your Honour was articled at Robinson Cox and became a partner of that firm in 1990. In 1992, your Honour's firm joined with Clayton Utz. Whilst at those firms, both of you had very fine commercial practices. Justice Colvin's practice focused on contract, equity and trade practices. Justice Banks-Smith specialised in commercial insolvency. Your Honour was one of the leading practitioners in that field, and that says a lot, if one recalls that in the 1990s and the noughties Perth had the unenviable reputation, thanks to the likes of Bond, Connell, Goldberg, Greenberg, Grump, Western Continental, Teachers Credit Society, Permanent Building Society and the Bell Banks, to name but a few, of being the insolvency capital of the world.
It should also be noted that you developed your reputation in this field whilst juggling the demands of being a wife and mother of two young boys, Sam and Dominic, and when you took on the role as head of the litigation group of Freehills, the responsibility of herding cats.
Your Honours were not only successful partners. You were very well liked, dare I say, loved partners of those organisations. Your ongoing success has been a matter of great satisfaction and pride to both firms and particularly to the partners with whom you worked. Your Honours succeeded in those large organisations because you were able to navigate not only the many rules and regulations and the often infuriating demands of the managing partners, but also the egos, the eccentricities, the idiosyncrasies and the quirks of your fellow partners.
Now that you've left the Bar and joined the Federal Court, all I can say is: welcome home. I can also say with confidence that your Honours will make great Judges of this Court. In that regard, I thought it worth noting the traits of a good Judge and then seeing whether your Honours measured up. I adapted what one sees sometimes in chambers as client comments. Trait number 1: good guy, used in a gender-neutral way. Banks-Smith, tick. Colvin, tick. Trait 2: has the smarts. Banks-Smith, tick. Colvin, tick. Believes judicial stress is something suffered by Judges, not something Judges inflict on advocates. Tick, tick. Delivers Judgment in a timely way. Banks ‑Smith, tick. Proven performer. Colvin, tick to be advised.
On a more serious note and from my own personal knowledge of you, your Honours are honest and straight-shooting, guileless and perceptive, humorous, empathetic and compassionate people. These traits will stand you in very good stead in dealing with the onerous responsibilities of a Judge of this Court. Both of your Honours have made significant contributions to the Law Society of Western Australia for which the Law Society is very grateful. Your Honour Justice Banks-Smith joined the Law Society in 1991 and you have been an active and contributing member to the society ever since. Your Honour served with distinction on the Law Society Ethics Committee and contributed regularly to the Law Society Continuing Professional Development Program. Your substantive law presentations for the Law Society have centred on commercial law and have included presentations on property law at the Law Summer School Conference.
Your Honour Justice Colvin joined the Law Society of Western Australia in 1993 and made a significant contribution to the Society during your time as a member, including to its professional development program. Your Honour has been a speaker at the Law Society's Law Summer School Conference and practical advocacy weekend for junior practitioners. Your Honour was regularly called upon by the Law Society to provide it with legal advice on various complex matters. Your Honour Justice Colvin has for a number of years been a member of the council at Methodist Ladies' College. You and Lyn have the unique distinction of having a child attending at that school for an unbroken period of, I think, 21 years.
By reason of your appointment to this Court, you have recently retired from the council. As your Honour is aware from previous similar occasions, I tend to shy away from set pieces of turgid biography and elaborate prose in favour of unguarded vineyards of pure observational genius. My wife Dianne, who also sits on the council, has had some involvement in your retirement gift. She happened to be copied in on an email sent by the council secretary to a well-known Perth antiques dealer. It read:
Hi. We are looking for a farewell gift for a gentleman. He likes to buy his wife and daughters suffragette and other antique jewellery, so we thought we might try and find an antique for his new office. Perhaps a smallish water jug or a nice pen or writing set or something. He is a lawyer who will be moving to the Bench, so we need something sophisticated and subtle. Do you have anything that you could suggest?
It was interesting to see what response followed:
Dear Nicky. Have collection of 19th century engravings of members of the House of Lords, inkwell sets, profile of the Duke of Wellington, decanters, cufflinks – including Australian colonial – various horses. Regards.
Dianne asked me whether horses would be an appropriate gift. I told her, "Darling, Craig is not the Chief Justice yet. So his new chambers may not be big enough for horses." That advice has been taken on board, I understand. The council secretary is inquiring about ponies.
Finally, I would like to take this opportunity to acknowledge the Commonwealth Government for these present appointments. A major priority of the Law Council concerns the preservation and advancement of the Rule of Law, which is crucial to a fair and democratic society such as the one in which we currently live. The Rule of Law is fundamentally dependent upon properly-resourced Courts staffed by appropriately-qualified and competent Judges. The Law Council lobbies the Commonwealth Government repeatedly and regularly to ensure the proper resourcing and staffing of Commonwealth Courts is maintained commensurate with the demands of an ever-growing population. The Government is to be congratulated, not only on the alacrity with which these present appointments have been made to fill the void left by two retiring Judges of this Registry, but on the wiseness and quality of those appointments. May it please the Court.
ALLSOP CJ: Thank you. May I also acknowledge at the Bar table the presence of the Solicitor-General for Western Australia. Justice Banks-Smith.
BANKS-SMITH J: Thank you, Chief Justice. Thank you, Mr Macliver, Mr De Kerloy, Mr Howard, for your very kind words. In your case, Mr Howard, I thank you for doing it twice. The significance of this occasion is not lost on me. It has been a long time between welcomes in this Court for the Perth Registry and I am proudly and symbolically wearing a dress. The Honourable Robert French, Chief Justice Wayne Martin, Chief Judge Thackray, President Buss, Mr Quinlan SC, Chief Judge Sleight and other distinguished guests, particularly my colleagues from the Supreme Court, members of the Bar, my former partners from Freehills and my family and friends, thank you for taking the time to come today and share this happy event with us.
In 2016 when I joined the Supreme Court, I was fortunate to have what I remember as a very warm welcome ceremony. I used up all the good stuff in that ceremony, as I never anticipated there would be another. So I will keep this reply short, conscious also that this is an afternoon welcome and it is never a good idea to keep the Bar from their drinks. We are all a product of the friends and family around us who support and endure. I am here because of opportunities that I acknowledge I would not have pursued without such support. To my husband Kevin, on this, our 31st wedding anniversary, thank you for your somewhat bemused acceptance of our chaotic lifestyle and for always having such confidence in me. I could not have done it without you.
Sam and Dominic, you have grown into such kind, funny and clever young men. You are still the most important thing in our lives and inordinately loved. However, I have been asked by some of my colleagues whether you have tidied your bedrooms since my Supreme Court welcome, and regrettably I have to report that the answer is 'not obviously'. I acknowledge the contribution of my family, particularly my parents, Jack and Jennie in Hobart, my three brothers scattered over three states, and a large generous family of in-laws through Kevin. To my lovely friends here today, you put up with a lot from me – cancelled arrangements, interrupted plans, book club books that are never purchased, let alone read, but as you know, you are very important to me and to Kevin and the boys, and I cannot thank you enough for always being there for me.
I look out today and see many from those Parker & Parker days: Justice Beech, Justice Ken Martin, Judge Wendy Gillan, Karen Fleischer, Dudley Stow, Richard Price, Margie Tannock, Michelle Cole, Tony Joyner. They were good days. We worked hard but we learnt a lot, and I have to tell you that I'm currently using chambers next door to Tony Siopis, and that laugh has not changed a bit. It makes me feel, just for a moment, that we are all in our 20s again, and yes, Tony still talks about the night a few of us took him to see that gem of an Australian band, Died Pretty, play at Hillarys Boat Harbour. It was Tony's introduction to a gig. I hope his Honour has pursued the gig scene in the intervening years.
I acknowledge my former Freehills partners here today. The experience gained over almost 20 years with you was irreplaceable. In particular, thank you to Konrad De Kerloy for your kind words. It was always a pleasure being in partnership with you. Jason Ricketts, I thank you for your support in the later years in encouraging me to work flexible hours as a partner and parent, and for your ongoing support, even when I left and transitioned to the Bar. To my colleagues at the Bar, and in particular, Francis Burt Chambers, I had the privilege of working closely with, and sometimes against, many of you, and I formed enduring friendships.
Thank you to Chris Zelestis QC for his continued guidance. Thank you again, Matt Howard, for your contribution both in supporting me as a junior and for speaking on these occasions. You may be interested to know that despite the coffee issue, Justice McKerracher has told me this is the Paris end of town.
Today, I particularly want to acknowledge the Judges and Master of the Supreme Court. I am delighted that so many of you are able to be here. It was my honour to serve with a group of such dedicated and decent people. Whilst looking back, it was all a bit of a whirlwind, you were so generous towards me, and it is a time I will always hold close. No question I asked was ever too stupid, every hearing was important, your humanity was obvious.
It was also a pleasure to be part of the cohort of women Judges of that Court. The mutual respect and friendship is invaluable. Chief Justice Allsop, and to all my Federal Court colleagues here today, thank you for your encouragement in taking this step and for making me feel so welcome. My Associate, Nick Werner, and my Executive Assistant, Vicki Schneideman, have also been very helpful and, I must say, tolerant during this period of change. Craig Colvin and I did not speak to each other about our appointments until after it was public. We both had an inkling, but we were very restrained. I was so thrilled to hear that Craig would be sharing this next step with me, although I am sure the profession will miss access to such a great advisor and advocate.
Finally, one can never underestimate the value of mutual support in this profession. It was Andrew Beech who told me, back in the early 1990s, that I should apply to Cambridge or Oxford. I had never considered it. I vividly recall collecting a blue air mail envelope from the Scarborough post office that contained an offer from Cambridge University, funded by a Commonwealth Government scholarship. It was a life-changing experience. Then the late and brilliant Steven Paterniti encouraged me to pursue litigation and put me up for partnership in the 1990s in the male-dominated area of banking and insolvency law. At a time when there is much negativity around the role of law degrees and the difficulties of maintaining longevity in this profession, I encourage you all to encourage someone. You never know the impact you might have. I am extremely humbled by the opportunity to be part of this Court. Thank you, Chief Justice.
ALLSOP CJ: Justice Colvin.
COLVIN J: Chief Justice, my new judicial colleague, Justice Banks-Smith, with whom I'm delighted to share this occasion, Judges of this and other Courts, former Judges, other distinguished guests, members of the profession, and those of you who still admit to being my friends and family, I thank you, each and every one, for the great honour you afford me today. In particular, I thank you, Mr Macliver, Mr Howard, Mr de Kerloy, most sincerely for your remarks this afternoon. You have each spoken all too kindly and without any measure of regard to my faults. Nevertheless, I am warmed and encouraged by the sentiments that have been expressed and do not chastise for inaccuracy.
Indeed, many of you know my fondness for hyperbole and adverbs in Court submissions. Given the liberal deployment of both this afternoon, I hope there remains sufficient truth in what has been said that I may still be recognised. Nevertheless, I do protest a little. One of the best Australian virtues is that we have a way of keeping in check those who would set themselves up as being better than the rest of us. In this country, the poppies are to be kept short and the bastards honest. We are fair dinkum, genuine, plain speaking people. This is just as well because, to borrow a line, half the harm that is done in this world is due to people who want to feel important. So as I begin this new task, I hope that each of you will accept my request in future to please keep me short, honest and plain.
Despite the best efforts of those who have spoken, I question indeed whether it's possible to be worthy of Judicial appointment. Manifestly, our imperfections mean that we are unable, without some hypocrisy, to sit upon the judgment of the behaviour of others. Fortunately, the strength of the Court system depends upon much more than saying overly nice things to a new Judge, or, indeed, upon the confidence of the new Judge. It requires Judges to hear cases in open Courts where they're subject to public scrutiny, to adhere to fair, consistent, established procedures, to reflect carefully before deciding, indeed, to labour and agonise in difficult cases, to publish considered reasons, to refrain from speaking in defence of their own decisions, even in the face of unjustified criticism, to refrain from debating in political forums or to have interests that conflict with their office.
They are required to be guided by legal principle, not personal belief, and to keep themselves separate from influence and all forms of corruption, and always to judge without fear or favour, blind to station or status. By these means, Courts offer protection to the individual from the strength of the majority and from those with financial, political or military power. Without Judges, aided, it must be said, by those who are here today who act for litigants in the proper discharge of their responsibility as Court officers, there would be no real rights, no proper protections for citizens and no assurance of all that we describe now as the rule of law.
So having said those things, it's a formidable thing to be joining the ranks of those who have gone before me in this Court. This is particularly the case in this State, where its past and present Judges, most of whom are here today, are known to me to have been outstanding exemplars of how to properly discharge all these aspects of the Judicial role. I can only aspire to follow the high standards that they have set.
When I began my life in the law, I had never met a Judge. They were remote, revered figures, devoid of individual characteristics. My first close encounter with a real Judge was when I started work as an Associate to Justice Toohey, then a lone member of this Court, resident in Perth.
He was a man of great integrity, fairness and compassion, with an understanding of the human condition. He was possessed of prodigious ability and capacity, and as a Judge, he was ever calm and ordered, never rude or partial. He was a keen observer and instructor as to both the art of advocacy and its responsibilities. He was not a fan of obfuscation, delay or procedural meandering. My time as his Associate was a formative and formidable experience which I hope has continued to shape me to this day. It is a special pleasure for me that the Judge's wife, Loma, is here this afternoon.
Since that beginning, I have been privileged to learn the responsibilities of advocacy - accuracy, frankness, directness, and thoroughness - from great exponents of the art who do me the honour of their attendance today.
I mention in particular Dominic Burke, to whom I was articled, a lawyer and advocate of great order and clarity, and my first regular instructor when I became a Barrister. Chris Zelestis QC, the long-time leader of the Perth Bar, who first encouraged me to join the Bar and then inspired me in many cases where I was his junior to really wrestle to the point of exhaustion with every legal problem.
The now Chief Justice of Western Australia, Wayne Martin, whose capacity to master a brief could never be emulated, but who taught me the importance of clear and direct speaking as well as engagement with all aspects of how the law is to be properly administered. And finally, my former colleagues at the Bar, Justices Andrew Beech and Michael Corboy, with both of whom I've often sought solace through the ups and downs of the adversarial system.
There are many others here who have been my loyal instructors, my juniors, my senior colleagues and my opponents. I have learned much from them through collaboration, close observation and their occasional justified protest at my behaviour. Today, they must remain nameless, but I must say that I am particularly delighted to see younger members of the Bar here with whom I have had close association. I leave Francis Burt Chambers after 22 years as a Barrister. I will miss the collegiality, the 'Q Court' conversations and, more recently, the 16th floor carousings. For the record, all the things I have said about Judges in those places I now recant.
I take this opportunity to thank publicly my tireless, always congenial and infinitely capable personal assistant of the past 13 years, Shelley Botica. Sadly, I must press on into new territory without Shelley there to make sure that my whole life is in order.
I'm very glad today that a number of my closest friends are able to be here. Fortunately for me, some are not lawyers. It is a rare privilege to have people who understand who you are and who will support you in any circumstance life may bring your way. True friends bring out the best in you, and I have some truly great ones.
I am delighted that my generous, fun and voluble sister, Christine, and her husband, Richard, who I have known since our days playing junior football together, that they have both been able to be here this afternoon having travelled from Melbourne. Our families have shared many significant occasions together, and today is another. I am also delighted that my brother, Murray, is here. He is, of course, a real lawyer, not someone who fights over the broken bits. Though we're both brothers and lawyers, we have never fought or argued, and I mean that absolutely. That is mainly due to him, of course, having been burdened with two very loud siblings. He's a testament to how to be patient, fair and reasonable in all circumstances. I try vainly to follow his example.
Then I wish to acknowledge the lifetime of unqualified support and encouragement given to me by my parents, Barry and Lil. They provided a home for us that was a place of utmost support and safety, where ideas were important, where there was always a listening ear and where mistakes could be made without undue chastisement. It is a joy for me that they are both here today. I'm also very pleased that Lyn's parents, Jean and John, are here. They are most generous people who have known me since I was a young man. From the beginning, they have welcomed me as a member of the family and always fed me far too much. I am grateful for both.
To my wonderful and inspiring children, Maddie, Katherine and Rebecca, and her husband Lawrence; in spite of me, and especially the demands of my work, there you are, fine, independently minded, thoughtful, caring, socially engaged, musical people after my own heart. All four of you are my greatest encouragement and my everyday delight, and I am so glad that you are here today.
It is customary to reserve the final mention for a person of singular importance. My wife, Lyn, and I have known each other since we were music students together at Churchlands Senior High School. On our first date, we went to the Royal Show. Emboldened by the occasion, and uncharacteristically, I took the risk of a ride in Sideshow Alley. I think it was called The Tumbler. I was very unwell both during and after. Since that inauspicious beginning, Lyn and I have, in the language of the 1970s, been "going around".
We have been on our own wonderful and exciting ride, thankfully more Ferris wheel than rollercoaster, for almost 40 years. I cannot imagine life without her. She is my strength and assurance. Lyn has many achievements in her own career, but she is a person who is always looking to do something for someone else, and I have been the greatest beneficiary of her love and regard, and I hope she mine. With that, I thank each of you for the support you have shown me by your attendance today and say no more.
ALLSOP CJ: Court will now adjourn.