Ceremonial Sitting of the Full Court
For the swearing in and welcome of the Honourable Justice Bromberg
Transcript of proceedings
THE HONOURABLE MICHAEL BLACK AC, CHIEF JUSTICE
THE HONOUR JUSTICE GRAY
THE HONOUR JUSTICE RYAN
THE HONOUR JUSTICE MOORE
THE HONOUR JUSTICE SUNDBERG
THE HONOUR JUSTICE MARSHALL
THE HONOUR JUSTICE NORTH
THE HONOUR JUSTICE GOLDBERG AO
THE HONOUR JUSTICE FINKELSTEIN
THE HONOUR JUSTICE GIUDICE
THE HONOUR JUSTICE KENNY
THE HONOUR JUSTICE JESSUP
THE HONOUR JUSTICE TRACEY RFD
THE HONOUR JUSTICE MIDDLETON
THE HONOUR JUSTICE GORDON
THE HONOUR JUSTICE BROMBERG
9.34 AM, TUESDAY, 8 DECEMBER 2009
BROMBERG J: Chief Justice, I have the honour to announce that I have received a commission from her Excellency the Governor-General appointing me a Judge of the Federal Court of Australia. I now present my commission.
BLACK CJ: Please read aloud her Excellency’s commission.
Commission of appointment of a Judge of the Federal Court of Australia. I, Quentin Bryce, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and subsection 6(i) of the Federal Court of Australia Act 1976, appoint Mordecai Bromberg SC, learned in the law, to be a Judge of the Federal Court of Australia beginning on 7 December 2009 until he attains the age of 70 years.
Signed and sealed with the Great Seal of Australia on 22 October 2009.
Quentin Bryce, Governor-General. By Her Excellency’s command, Robert McClelland, Attorney-General.
BLACK CJ: Thank you. Justice Bromberg, I now invite you to take the affirmation of office.
BROMBERG J: I, Mordecai Bromberg, do solemnly and sincerely promise and declare that I will bear true allegiance to Her Majesty, Queen Elizabeth the Second, her heirs and successors, according to law, that I will well and truly serve her in the office of Judge of the Federal Court of Australia, and that I will do right to all manner of people according to the law without fear or favour, affection or ill-will.
BLACK CJ: I now invite you to subscribe the form of affirmation that you have taken.
Madam District Registrar, would you please take the commission and the subscribed affirmation of office, and keep them in the records of the court.
Justice Bromberg, on my own behalf and on behalf of all of the members of our court, I extend to you my warmest best wishes and congratulations. I now invite you to take your seat.
BLACK CJ: Mr Solicitor for the Commonwealth, do you move?
MR S. GAGELER SC: If the court pleases. I acknowledge the traditional owners of the land on which we meet, and I honour their elders past and present. It is a privilege to represent the Australian Government in welcoming your Honour, Justice Mordecai Bromberg as a Judge of the Federal Court of Australia. The Attorney-General regrets that he is unable to be here today, but he has asked me to convey his warmest congratulations to your Honour.
Your Honour is in the presence of very many friends and colleagues from both branches of the profession. Your Honour is also joined today by your family. Here today is your father Harry, your wife Nicky, your daughter Mia, your son Ben, your sister Rachel, and your brother Gidon.
Your Honour was born in Israel in 1959. Australia became your home when you migrated here with your family in 1967. You attended Elwood High School and then Brighton Grammar School. In 1979 your Honour graduated from Monash University with a Bachelor of Economics. That whetted your appetite for more studies and your Honour completed a Bachelor of Laws, again at Monash University, in 1982.
Between 1983 and 1984 your Honour worked as an articled clerk with Slater & Gordon in Melbourne, and then until 1985 as a solicitor with Baker & McKenzie in Melbourne and then in Sydney. This was followed by a period when your Honour was associate to your now colleague Justice Peter Gray of this court. Between 1986 and 1988 your Honour resumed work as a solicitor with Baker & McKenzie in the firm’s London office and in the firm’s Hong Kong offices. Your Honour managed to weave some overseas travel into this period of your career.
In 1988 your Honour was called to the Bar and, despite some of your Honour’s biggest and hardest fought cases involving industrial law, your Honour is not typecast as an industrial barrister. Rather your Honour has enjoyed a broad career at the Bar ranging from personal injuries through commercial law, product liability, constitutional law, administrative law, trade practices and, of course, industrial law.
In 2003 your Honour was appointed Senior Counsel. In 2005 your Honour became the founding president of the Australian Institute of Employment Rights. The institute, under your Honour’s presidency, formulated a charter employment rights that sets out the employment rights of employers and employees based on Australian industrial practice, the Australian common law, and international treaty obligations binding on Australia. Your Honour played a key role in consulting with academics, practising lawyers, employers and union officials, all who contributed to that charter.
Your Honour took on the task then of co-editing the Institute’s first publication: An Australian Charter of Employment Rights. The publication has become a handbook for industrial relations and human resources practitioners interested in promoting fair play in the workplace; and the publication has also become a standard text for university labour law courses.
In 2005 your Honour was also technical adviser to the International Labour Organisation’s review of the labour laws of Cambodia, and since 2007 you have been an international consultant to the ILO reviewing and drafting the labour laws of Nepal.
Your Honour’s colleagues attribute many qualities to your Honour, all of them good: creativity, coolness under fire, a prodigious capacity to work, empathy, generosity of spirit, and a genuine concern for those less fortunate than yourself. As counsel you have been described in the highest of terms: as gracious, thorough, courteous and fair, a sheer pleasure to work with, and a formidable opponent. Very many industrial relations practitioners – representatives of unions and employers alike – have commented favourably on your Honour’s appointment, a testimony to the respect accorded to your Honour on both sides of what is sometimes seen as an IR divide.
Whether in law, in sport, or in life in general, your Honour is known for your preparedness to, and here I am quoting “get in and under” – which I am told is to borrow a phrase from your Honour’s St Kilda football days. Your Honour’s competitiveness still finds expression in football and in mountain bike riding. It has been recounted that you “kicked the Bar to victory” in a Bar versus Solicitors football match just a few years ago, this after breaking your ribs earlier in the game. And your Honour has been seen running the last ten kilometres of a mountain bike race carrying your bike, rather than lose time changing a flat tyre.
Your Honour remains a passionate St Kilda supporter, and it seems that you always manage to seek out others of the same persuasion. A colleague of your Honour’s was very excited at the prospect of you speaking at a major interstate event on workplace rights but, as it turned out, the audience comprised a large number of Saint supporters and were much more interested in your Honour discussing player recruitment strategies. It is to be hoped that during your Honour’s hopefully long tenure on the Bench your beloved St Kilda Football Club will be justly rewarded with that elusive second premiership.
Your Honour possesses other considerable talents. You are reputed not only to be a very good wine producer, but an exceptionally good marketer of your product. In its early days, the now highly successful vineyard, I am told, was anything but; it was in grave jeopardy from a group of local goats which took a special liking to the first vine plantings. Your Honour’s firm but fair dealings with the goats has become the stuff of legends, displaying many of the qualities for which your Honour is known amongst your peers; especially, I am told, creativity and coolness under fire, although testing empathy and generosity of spirit to its limit.
Your Honour, on behalf of the Government and on behalf of the Australian people, I extend to you my sincere congratulations on your appointment and welcome you to the Bench of the Federal Court of Australia. May it please the court.
BLACK CJ: Thank you, Mr Solicitor for the Commonwealth. Mr Corcoran, President of the Law Council, do you move?
MR J. CORCORAN: May it please the court. On behalf of the Law Council of Australia, it gives me great pleasure to welcome your Honour’s appointment to the Federal Court of Australia. The Law Council is the nation’s peak legal body. Its membership comprises the country’s law societies and bar associations. Overall the Law Council speaks on behalf of approximately 60,000 practitioners Australia-wide. Everyone associated with the Law Council sends their congratulations and best wishes to your Honour on your appointment and in your career as a Judge of this court. Your Honour is well equipped with the skills and experience to deal with the challenges that you will face on this new journey.
The Solicitor-General referred to the Australian Charter of Employment Rights; the 2007 book of that title, of which your Honour and fellow barrister Mark Irving are co-editors. It has been described as the blueprint for the future of Australian industrial relations. The book features a forward by former Price Minister Bob Hawke. Mr Hawke is the patron of the Australian Institute of Employment Rights. He said of the Institute:
Now is the time for people of goodwill to stand up for the rights and standards that our Constitution and our history have bequeathed to us. This includes employers, employees and all those who care about the future of our nation. The Australian Institute of Employment Rights is to be commended for assuming this task.
Your Honour’s contribution to the charter is its foundation in international labour law treaties and conventions. It is a very significant contribution to the WorkChoices Fair Work debate in Australia.
Your Honour has also been international vice-president and Australian national committee president of the International Centre for Trade Union Rights. It is in that capacity that your Honour led a panel of international labour lawyers in preparing extensive reports and submissions to parliamentary and other inquiries for more than ten years. The inquiries are too many to list in this address, but they include the 1996 Australian Senate Economics Reference Committee inquiry into the Workplace Relations and Other Legislation Amendment Bill, and the 2005 Australian Senate Employment Workplace Relations and Educations Reference Committee inquiry into the Workplace Relations Amendment (Work Choices) Bill.
Your Honour has not been an actual member, unfortunately, of any Law Council committees but on several occasions you have contributed by being available for consultation. For example, your Honour consulted with Rachel Doyle SC – one of this year’s new Senior Counsel in Victoria – in a submission that she worked on for the Law Council in the area of industrial law.
Your Honour appeared with the Victorian Solicitor-General, Pamela Tate SC, in New South Wales v Commonwealth, the challenge to the constitutional validity of the sweeping changes to federal industrial laws in Work Choices, one of the most important constitutional cases for many decades.
The Solicitor-General made a number of references in his speech to your beloved St Kilda Football Club. Your Honour played for St Kilda in what was the VFL from 1978 to 1981, playing 34 games, kicking 11 goals, and winning a total of three Brownlow votes.
BROMBERG J: Actually four.
MR CORCORAN: Thank you for that correction, your Honour. I think you need to refer then to the St Kilda website and update their details. And mentioning St Kilda, your Honour’s appointment to this court has caused great excitement not only in legal circles, but certainly in St Kilda circles. I have been referred to a website known as saintsational.com. This is a website where St Kilda fans can blog about all things Saint-related, and it featured a thread on your Honour after your appointment to the Federal Court was announced.
During this web-based discussion between Saints fans, your Honour is described – perhaps unfairly – as an honest battler on the football field who once won a colour TV for a best on ground performance in a pre-season game. But I thought the most interesting observation was from the blogger Ace who is said to be a St Kilda life member who, on hearing of your appointment, wrote:
Does the Federal Court have jurisdiction over a national competition like the AFL? If it does, we may at last receive some justice.
Your Honour’s passion for sport has remained long after you retired as a footballer. You have remained a very active member of the St Kilda Football Club, serving on the football sub-committee with the likes of former players Nathan Burke and Andrew Thompson, and the swimmer Michael Klim.
I have only briefly touched on your Honour’s personal and professional qualities; qualities that are bound to hold your Honour in good stead as you embark on this new and very challenging chapter in your legal career. The esteem in which you are regarded by your peers is demonstrated by the number of colleagues and friends who are here today. The Law Council welcomes your Honour’s appointment to the Federal Court. We are sure you will excel in your new role, and we wish you a long and distinguished career. May it please the court.
BLACK CJ: Thank you, Mr Corcoran. Mr Riordan, President-Elect of the Australian Bar Association, do you move?
MR P. RIORDAN SC: Indeed, if the court pleases. I appear on behalf of the Australian Bar Association which is constituted by the eight independent Bars of Australia. Your Honour and I were part of the 2003 silk group who stood in this court nearly exactly six years ago. Of the group of Victorian Senior Counsel, Tim Ginnane and Jim Parrish have been appointed to the County Court. My notes say that your Honour is the first appointment from that group to a superior court. As I stand here I look at Justice Gordon who would be entitled to correct me if I said that. It wouldn’t be the first time that has happened. But I think it is safe to say that only four of that group have been so elevated.
Your Honour is quite familiar with breaking away from the pack. You were only 15 when you tried out for the St Kilda Under 19s and, of the some 400 who tried out for that position, you were the only one who made it through to senior ranks. And if I can digress on that topic for a moment, I thought I heard the learned Solicitor-General express the view that you would hope that your beloved St Kilda Football Club would be justly rewarded with its elusive second premiership during your Honour’s time. Now, even as a Collingwood supporter who was there in 1966 and who cannot say he shares the aspiration, I suspect that the learned Solicitor-General has grossly under-estimated yours. Your Honour’s commission is to age 70. That is January 2029. I daresay you are hoping for some more immediate gratification than that. Unless something happens at Copenhagen, St Kilda could be under water by 2029.
We have also heard that your Honour was the associate to Justice Gray, but you were not quite the first associate of this court who has later been appointed to the court. Justice Allsop was associate to Sir Nigel Bowen. However, I think even if we look beyond this court, we will not find any other associate who has been appointed to the same court in time to sit concurrently with your judge. Congratulations.
One of the secrets of your success may be the people with whom you associate. Your Honour has a farm at The Otways and your next door neighbour was the late Cliff Young. We all recall at 61 when he won the inaugural Sydney to Melbourne ultra marathon in 1983. You knew Cliff well. He used to look after your property when you weren’t there. It is told that your Honour accepted an offer to go running with Cliff; and your Honour is fit and you met at the gate and you asked him how far. He said ten miles. The Otways aren’t flat. Upon getting back to the gate, I am told you staggered into your house but Cliff ran up the drive and, after you emerged from your hot shower, you looked out the window to see Cliff running around the property in his gumboots as he did the famous Cliff Young shuffle.
Your Honour, counsel rarely feel their clients fully appreciate their efforts but a group of your clients literally sang for joy at one victory. Kevin Bell led you in representing some 30 Mayne Nickless owner-drivers who claimed that they had been dismissed by reason of them seeking better conditions. The dismissals were within a couple of weeks before Christmas in 1997. Instead of hearing the application for the interlocutory injunction, Justice Ryan brought on an expeditious trial. Within 14 days of initiating proceedings, your clients were there on Christmas Eve to hear judgment that they were reinstated. The judgment was in the old High Court building, of course, and they responded by going around to Little Bourke Street where they stood underneath Justice Ryan’s chambers’ window serenading him with Christmas carols.
The very next year in 1998, of course, your Honour appeared in another case in which not only this court, but also the High Court dispensed justice with lightening speed, the famous case of Patrick v Maritime Union of Australia. That case involved a very public crisis on the wharves, but it also raised very important legal issues in the interpretation of the freedom of association under the Workplace Relations Act, the corporations law, power of courts to grant interlocutory relief, and the like.
Your Honour was part of what was known as “the B team”. When I heard that I thought it wasn’t very complimentary but then I was told there was no A team. The B team was so-named because it was made up of Burnside, Bornstein, Bromberg, and your instructing solicitor was Josh Bornstein. The application for the interim injunction was filed and heard before Justice North on the Tuesday before Easter, 7 April. After Easter Justice North granted the interlocutory injunction pending trial.
A Full Court of this Court was convened by video link and delivered judgment at 7 pm. At 9 pm Justice Hayne heard an application for a stay of the Full Court’s orders. The Full Court of the High Court heard the application for leave to appeal, and the appeal on 27, 28 and 30 April, delivered judgment on 4 May; all done in less than 28 days. The rocket docket has nothing on the Patrick case.
Burnside freely volunteers that he learned everything he knew about the Workplace Relations Act from your Honour and the rest of the B team. He said that you surely must have had reservations about what he could add when brought in to lead you in the areas in which you were the masters. He certainly appreciated your concealment of such sentiments.
Your Honour was ever the optimist, and an excellent teacher and master tactician, having always at your fingertips minute detail as to precisely which sections of the legislative regime might be implicated in whatever line of argument was under discussion. When you all came out from hearing judgment in the High Court, a large man – one of the cleaners at the High Court – came up and said, “Thanks, fellow, we all feel a bit safer now.” He was in no doubt about the consequences to smaller unions if the Maritime Union had been unable to resist in the extraordinary circumstances of that case.
Your Honour, on behalf of the Australian Bar Association, we wish you an interesting, enjoyable and distinguished service as time on this Bench. If the court pleases.
BLACK CJ: Thank you, Mr Riordan. Mr Moshinsky, Senior Vice-Chairman of the Victorian Bar, do you move?
MR M. MOSHINSKY SC: May it please the court, I appear on behalf of the Victorian Bar to congratulate your Honour, Justice Bromberg on your appointment to this court. Michael Colbran QC, the Chairman of the Victorian Bar, regrets that he is not able to be here today. He has known your Honour for many years and has asked me to pass on his best personal regards and congratulations.
Your Honour has practised for more than 20 years as a member of the Victorian Bar. Your Honour applied to sign the Victorian Bar Roll from overseas. You were a part of the March 1988 intake. In January 1988 you advised the Bar that you could not get to Melbourne before 7 March; that would mean missing the first four days of the Readers Course. Conscientious to a fault, your Honour agonised over missing four days in a three month course. You assured the Honorary Secretary, Robin Brett, that you had a friend in the course who would take copious notes for you. You also gave a detailed explanation as to why you needed to miss the first four days, and I quote directly from your Honour’s letter to the Bar:
In order to start in March, I will have to leave London earlier than I had otherwise planned. This would not have been much of a problem in the normal course of events. However, on 20 February I am being married here in London. I will need a short while to deal with the aftermath of my wedding; to pack my bags and tie up loose ends here in London as well as some time for a dutiful honeymoon. I do not think I can realistically return to Melbourne before 7 March.
Your Honour read with Roy Punshon, now Judge Punshon of the County Court; and Maureen Hickey, later one of Her Majesty’s counsel. In due course your Honour had four readers: Steven Moore, Peter Rozen, James Gray and Malcolm Harding.
Your Honour served some six years on the Bar Human Rights Committee and served as Secretary of that committee. With Kevin Bell – now Justice Bell of the Supreme Court – and Tony Lawrence, your Honour established the Victorian Bar Indonesian Legal Aid Committee. That initiative showed how a few concerned individuals in Victoria could make a real difference. The Suharto regime was in power in Indonesia. Indonesian human rights advocates needed support. The committee brought Indonesian human rights lawyers to Melbourne for advocacy training in the Bar Readers Course.
The Bar waived the Readers Course fees but the committee raised the money for fares and expenses, and billeted the Indonesian lawyers in their homes for the three months of the Readers Course. All four Indonesians were already committed and active human rights lawyers. In the years since all four have, in their different ways, moved mountains in human rights advocacy in Indonesia.
Your Honour’s story is one of extraordinary family and personal survival and achievement. Your grandfather was a carter, a deliveryman with horse and cart, in Poland. In September 1939 the armies of Nazi Germany invaded Poland from the north, south and west. Your grandfather loaded up his cart and fled east. When able to do so, he headed back west. Later he settled in Israel where your Honour’s mother and brother, Gidon, still live; and where you were born.
When your parents emigrated to Australia in 1967, after the six day war in Israel, you were nine and a half years old. You spoke no English. When you started school in Australia for some time you understood not a word. Playing football for Elwood High School in an inter-school match you were surprised at how friendly everyone was. From all around the ground came calls of “Come on, Mordy” and “Go, Mordy.” You later learned that the opposing school had been Mordialloc High.
Your parents ran a small supermarket. They managed to send you to Brighton Grammar School for your last years of high school where, as we have heard, you distinguished yourself academically. The rest is, as they say, history.
On behalf of the Victorian Bar, I wish your Honour long, distinguished and satisfying service as a Judge of this court. May it please the court.
BLACK CJ: Thank you, Mr Moshinsky. Mr Stevens, the President-Elect of the Law Institute of Victoria, do you move?
MR S. STEVENS: May it please the court. I appear on behalf of the Law Institute of Victoria and the solicitors of this State to congratulate your Honour, Justice Bromberg, on your appointment to this court.
Even while a student, your Honour had sound instincts and exhibited great judgment in industrial relations. A person, who shall remain nameless, from management at the St Kilda Football Club when you were a player there at one stage met quietly and alone with players. Seemingly casually he asked about reported discontent with the coach:
Please be frank –
he said –
this is not a witch hunt, but I need to know truthfully what you think so I can work behind the scenes to make things better. Be assured that what you say will be held in the strictest confidence. Whatever the situation, the coach will never know what was said.
Some players opened up. Your Honour had the good sense to say not a word. The very next Tuesday at training the coach taunted the players with verbatim quotations of what had been said about him. The players who had spoken to this person were subjected to training involving very significant pain that night.
Your Honour was articled to Jonathan Rothfield at Slater & Gordon. You also worked closely with two other partners there, Jeff Jones and Michael Higgins. The late Jeff Jones was the elder statesman of the firm, an old time generalist who did some industrial work. The late Michael Higgins also had a wide practice, and later became a highly respected Judge of the County Court. Your Honour spent as much time with each of them as you did with your principal, perhaps more. Effectively you had three principals in articles.
After admission in 1984 you joined Baker & McKenzie, as we have heard, then reputedly the largest law firm in the world. You practised in Melbourne and Sydney in commercial litigation. After a year at Baker & McKenzie, followed by a year with Justice Gray, you went off travelling.
When your Honour is being cautious about not appearing frivolous or flighty, even as a young man, you described this as:
…combining overseas travel with work as a solicitor in the London and Hong Kong offices of Baker & McKenzie.
In fact, you had a good time travelling around the world for two years. You went up through Asia. You had been a summer clerk with Baker & McKenzie in Hong Kong and dropped in to say hello. Fortunately, they had more work than people so you worked three or four months before continuing your travel. Your Honour saw how far remuneration at the Baker & McKenzie level went in youthful travel; positively transformative. When you got to London you decided to drop in to the London Office. Once again you were in luck. You were able to do a couple of bursts there in between travelling. You were even able to marry in London, as we have heard, before returning to begin at the Victorian Bar. So ended your Honour’s years as a solicitor.
However, your training and experience in those years were a sure foundation for your work at the Bar, and your success and empathy in working with your instructing solicitors. In Patricks v Maritime Union of Australia, coming away from the hearing before Justice North, your instructing solicitor describes himself and the others in the B team as being “rattled”. Your Honour alone, he says, remained optimistic. When you returned to hear judgment, the whole team was keyed up.
Justice North read his reasons for judgment. As they unfolded, it became apparent that you had been successful. Your instructor became, as he describes it, quite emotional. He had the advantage of having his back to the judge. Your instructor’s emotional state communicated itself to your Honour. Your Honour began to waiver. Then your “calm under fire” asserted itself. Your Honour, facing the judge, remained entirely composed.
None of this prevented you from dealing mighty blows against the solicitors in playing not only football, but also cricket for the Bar. The Institute has a proud record in the annual cricket match against the Bar. In 1999, 2001 and 2004 your Honour played a significant role in the Bar winning the Sir Henry Winneke Cup in cricket. You were the man of the match in 1999 and 2004.
In 2004 your Honour demonstrated a quite unseemly level of competitive zeal. From behind stumps where you were keeping wicket your Honour lunged across in front of your captain, David Neal, who was at first slip to steal a catch that should rightfully have been his. Your football for the Bar was at least in your Honour’s known area of expertise, and in 2005 and 2006 the RecLink matches raised around $8000 and $20,000 respectively for a very deserving charity.
At your Honour’s 50th birthday party your wife, Nicky, raised more than a few eyebrows when she spoke of your mistress until, that is, it became evident that you kept your mistress in a shed; and she was your mountain bike. Last year around Melbourne Cup time your Honour took your friend Justice Marshall mountain bike riding in the old diggings near Castlemaine. The trail was twisty and winding. “Shane, just remember that speed is your friend”, this to one whose bike riding experience didn’t extend much beyond the stationary exercise bikes at the gym. Justice Marshall, of course, came a cropper suffering severe bruising to his chest and ribs.
Justice Marshall was having maudlin thoughts at the time that at least you might benefit from the vacancy in the Melbourne registry. Your Honour scolded him for his foolishness, assuring him that you had had that degree of bruising regularly in football yourself. Your Honour was right. Justice Marshall is still on the court and here today, and your Honour had to wait another year for your seat on the court.
Your Honour grows grapes at Vaughan Springs. It is rocky, granite country, as we have heard again. You have had to remove large boulders. You have had to use nets to minimise degradations by the birds. You have had trouble with kangaroos. You contend with frost. For about ten years you have persisted. Your wine maker is Lou Grant of Granite Hills. You are one of the first to produce shiraz in the finer cool climate style, the CÔte-RÔtie high altitude style in contrast to the robust Barossa style of shiraz.
Solicitors say you have been a pleasure to work with. You are committed to understanding the minutiae. You look at each case from every possible angle. You look at each angle from every possible angle. You see angles that the masters of, for example, the arcane minutiae of South Australian industrial law have not seen. You are unflappable and also personable.
On behalf of the Law Institute and the solicitors of this State, I wish your Honour a long, distinguished and satisfying service as a Judge of this court. I wish your Honour great joy in your appointment. May it please the court.
BLACK CJ: Thank you, Mr Stevens. Do you wish to reply?
BROMBERG J: I do. Your Honours, friends and colleagues, thank you for sharing this special occasion with me. I am delighted that so many of my friends are here. I am especially appreciative of the attendance of so many distinguished guests, including Justice Hayne, Justice Maxwell, other Judges and former Judges, and Parliamentarians.
I am grateful to Mr Gageler, Mr Corcoran, Mr Riordan, Mr Moshinsky and Mr Stevens. You have been overly generous with your compliments, and suitably discreet in your re-telling of some of my escapades.
Mr Stevens, it is true that I did try and knock off Justice Marshall. His Honour said to me yesterday that he now feels safe. I need to frankly tell his Honour that it was not his membership of this court that inspired me, but rather his membership of the Collingwood Football Club. For the moment, however, his Honour is safe. I have a long list of Geelong supporters to deal with first.
There are many people I should acknowledge and thank. My mother created the loving foundation from which all of my achievements have flourished. My father has provided me with opportunities that cruel circumstances denied to him. Together with my sister Rachel and brother Gidon, they are happy for me and supportive as always. I thank them dearly.
I often mischievously boast that I met Nicky when she was young, and trained her well. In fact, her perfection was the work of others and all of my in-laws – especially Mary, Brian, Jacky and Keith – deserve my thanks. Nicky’s love, humour and great wisdom has provided the foundation upon which Ben and Mia now flourish as thoughtful, caring, intelligent and beautiful young adults. I am undeservedly fortunate.
As you have heard, I started my academic career in Australia as a recently arrived – in fact, I was eight I think, not nine – eight year old migrant. For three months I did, indeed, sit in the back of the classroom not understanding a word of what was going on. I am indebted to the many fine teachers who have enhanced my education. Foremost among them are Professor Ron McCallum who taught me at Monash University; and, of course, Justice Peter Gray who can truthfully say he found me young and taught me well.
To my great delight, both of them are here today and, as you have heard, for the first time a Judge of this court sits on the Bench in the company of a former associate. That precedent is just a little recognition of Justice Gray’s long and invaluable service to this court. I did speak to his Honour recently about the prospect of he and I sitting together on a Full Court. We were both delighted at the prospect. For some reason, however, his Honour was rather less enthused when I mentioned the prospect of my sitting on an appeal of a Gray J decision.
There is one matter concerning Justice Gray I feel I am duty bound to confess. What is known, at least to Justice Gray and those immediately involved, is that whilst I was his Honour’s associate I failed in one of my most basic of responsibilities. In 1985 his Honour and I travelled to do a case in Adelaide. At that time Judges of this court wore wigs. I forgot to bring his Honour’s wig. Being aware that attack was the best form of defence, before confessing to my crime I unsuccessfully tried to persuade his Honour that he should move the court into the modern era and emulate the late Justice Lionel Murphy’s rejection of the wig. His Honour’s reaction was stern but fair. I hope he reacts with similar restraint as he now hears the second chapter to that story.
Because Justice Gray’s next case was in Sydney and I was not returning to chambers, the forgotten wig was couriered to my home in a cardboard box and deposited at the front door. Two unfortunate facts then came into collision. The first was that the box had a loosely covered lid. The second was that our front yard was the home to Bogart, our German shepherd dog. If he stands up, let me know, will you?
To my good fortune, as always, Nicky came to the rescue and retrieved the said wig from the jaws of the said dog just before the said dog slinked away to find a burial site at the back of the house. Thankfully not a curl was out of place. Further, and in the alternative, I rely on the Statute of Limitations.
There are others I wish to thank. Slater & Gordon employed me as an articled clerk, and Baker & McKenzie employed me as a solicitor. I was articled to Jonathan Rothfield of Slater & Gordon and I was, indeed, blessed to be put in the care of Jeff Jones and Mike Higgins. Whilst both have sadly passed away, I am certain that much of their great wisdom lives on through the highly successful careers of many of my contemporaries, including Bernard Murphy, Peter Gordon and Marcus Clayton.
Baker & McKenzie introduced me to commercial law and the high life, and allowed me to pursue my passion for law whilst, at the same time, pursuing my passion for world travel. As a young lawyer I worked in the Melbourne and Sydney offices, and twice in each of the Hong Kong and London offices of what then was – and I think still is – the world’s largest law firm.
These two very different law firms provided me with exciting and exhilarating experiences that have left me with good friends, fond memories, and a very wide ranging exposure to the law.
Many solicitors, some of whom are here today, and many of my regular clients, some of whom are here today, have been solid supporters of my career at the Bar. I thank them for their fantastic support.
When I came to the Bar I gained much from my mentors, Maureen Hickey and Roy Punshon. Judge Punshon, who I am pleased to see here today, was particularly inspirational. I spent many engaging hours in Roy’s chambers discussing law, life and politics. I hope that I was able to pass a little of his Honour’s wisdom as a mentor to my own readers – Steven Moore, Peter Rozen, James Gray and Malcolm Harding.
I have had a great deal of pleasure enjoying the collegiality of the Bar and, in particular, the sixth floor of Joan Rosanove Chambers. I am pleased to see many of my neighbours here today, including Pamela Tate SC, Solicitor-General for Victoria.
As junior counsel I had the good fortune of learning much from Tony North QC, now Justice North; from Richard Kenzie QC, who I am pleased to see here; from Julian Burnside QC, who I am also pleased to see; and also from Bob Hinkley.
As an advocate, Justice North was the great apple polisher. As junior counsel I regularly brought along an apple. His Honour would take it, consider it, polish it, and then present a delectable argument upon which the Bench would inevitably feast. Julian Burnside’s final submission in the MUA v Patricks litigation is still the most powerful and moving address I have ever heard. Richard Kenzie is the font of all knowledge of labour law and a wonderful advocate. And Bob Hinkley was the most talented barrister never to be honoured with silk.
For many years whilst I was junior counsel I was regularly opposed to Chris Jessup, now Justice Jessup; or Geoffrey Giudice, now Justice Giudice. Often I was opposed to both. I learnt much from my very skilled opponents; often I learnt the hard way. With Herman Borenstein SC I often exchanged ideas, and sometimes briefs. I thank him as well.
Since I took silk I have had the good fortune of being assisted by a wealth of clever juniors, many of whom I can count as good friends. For reasons unbeknown to me, I have a reputation for being very demanding of junior counsel. I am told that in the very short period since I left the Bar one of my regular juniors has stopped smoking. Another has said that his wife is now willing to have him back. I extend my thanks to all who have had the misfortune of being briefed with me and, in particular, to the long-suffering regulars: Melinda Richards, Melanie Young, David Langmead, Steven Moore, Craig Dowling, Mark Irving, Peter Rozen, Malcolm Harding and Neil Campbell.
A special mention and my congratulations to Rachel Doyle SC who was recently appointed silk. Another special thanks to my personal assistant, Elizabeth, who I am pleased to say has joined me at the court.
I would also like to thank all of the well-wishers who have welcomed my appointment. The Judges and staff of this court have been particularly gracious and receptive, and my welcome couldn’t have been warmer. One Judge did, however, note that the anniversary of my appointment coincides with the anniversary of the bombing of Pearl Harbour. I was left pondering whether his Honour was simply noting the coincidence or trying to make a larger point.
There are many professional reasons why accepting the offer of an appointment to this court was an easy decision. Three reasons were paramount. The first is my impassioned commitment to the rule of law and to the continued contribution this court makes to upholding the law as an instrument of social justice.
The second reason is the nature of the legal terrain over which this court has jurisdiction. This is a pre-eminent court for the practice of public interest law: labour law, administrative law, consumer law, discrimination law, native title law and constitutional law. Additionally the court has extensive jurisdiction in commercial law. I have an interest in all of that legal terrain, with a particular passion for much of it.
Thirdly, I am deeply concerned with the processes involved in bringing a claim through the court system which has become so complex, so time consuming, so work-intensive and, thus, so expensive that many good claims are simply not pursued. Rights are of no value if they cannot be enforced. If access to justice is denied, the rule of law is fundamentally compromised. This court has been at the forefront of improved case management strategies. More is being done and more can be done.
This appointment provides me with an opportunity to make a contribution to the service of the public. I have accepted a weighty responsibility. I intend to give it my best.
Recognising that this is one of the last few occasions that a welcome of this kind will be graced by the presence of Michael Black as Chief Justice, I would like to acknowledge the wonderful leadership that his Honour has provided to this court. Like many at the bar, I am extremely fond of this court. As an advocate, it was always a great pleasure to work here. Chief Justice Black’s congeniality is legendary, and is reflected in the spirit and soul of this place. He will be greatly missed.
Finally, I thank you all for the honour you have bestowed upon me through your attendance here today.
BLACK CJ: Yes. Would you adjourn the court, please.
MATTER ADJOURNED at 10.27 am INDEFINITELY