Ceremonial Sitting of the Full Court

To welcome the Honourable Justice Jackson

Transcript of proceedings

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THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE MCKERRACHER
THE HONOURABLE JUSTICE DAVIES
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE COLVIN
THE HONOURABLE JUSTICE JACKSON

GUESTS OF THE BENCH:

THE HONOURABLE ROBERT FRENCH AC
THE HONOURABLE CHRISTOPHER CARR
THE HONOURABLE TONY SIOPIS SC
THE HONOURABLE JOHN GILMOUR QC

PERTH
4.31 PM, WEDNESDAY, 20 MARCH 2019
 

ASSOCIATE: Presentation of commission and swearing in of the Honourable Justice Jackson.

JACKSON J: Chief Justice, I have the honour to announce that I received a commission from His Excellency, the Governor-General, appointing me a Judge of the Federal Court of Australia. I now present my commission.

ALLSOP CJ: Thank you, Justice Jackson. District Registrar, would you please read the commission aloud.

THE REGISTRAR: Commission of appointment of a Judge of the Federal Court of Australia. I, General the Honourable Sir Peter Cosgrove, AK MC, retired, 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(1) of the Federal Court of Australia Act 1976, appoint Darren John Jackson, learned in the law, to be a Judge of the Federal Court of Australia assigned to the Perth Registry, commencing on 20 March 2019 until he attains the age of 70 years. Signed and sealed with the Great Seal of Australia on 21 February 2019, Peter Cosgrove, Governor-General, by His Excellency's command, Christian Porter, Attorney-General.

ALLSOP CJ: Thank you, District Registrar. Justice Jackson, I now invite you to take the Affirmation of Office.

JACKSON J: I, Darren John Jackson, do solemnly and sincerely promise and declare that I will bear true allegiance to Her Majesty, Queen Elizabeth II, 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.

ALLSOP CJ: Justice Jackson, I now invite you to subscribe the affirmation that you have just taken. District Registrar, please take the commission and affirmation and have them entered in the records of the Court. Justice Jackson, congratulations.

JACKSON J: Thank you.

ALLSOP CJ: Jackson J, on my own behalf and on behalf of all the Judges of the Court, may I welcome you to the Court and wish you the very best in your service to the Australian people.

JACKSON J: Thank you.

ALLSOP CJ: Welcome to everyone to this occasion of the welcome to Justice Jackson. I would first acknowledge the traditional custodians of the land on which we gather, the Whadjuk People of the Noongar Nation, and pay my respects to their elders past and present.

The Judges of the Western Australian Registry and I are joined on the bench by a number of Judges of the Court from other registries, Justice Greenwood, Justice Rares, Justice Besanko and Justice Davies. We also take great pleasure in having with us on the bench former Judges of the Court, the Honourable Robert French AC, the former Chief Justice of the High Court, the Honourable Christopher Carr, the Honourable Tony Siopis SC, and the Honourable John Gilmour QC.

I acknowledge the presence here today of Justice Jackson's family, including and in particular, your partner, Chelsea, and your children, Finn, Jasper and Rosie. And I also acknowledge the presence here today of a number of distinguished guests; Chief Justice Quinlan, Judges of Court of Appeal of Western Australia, and Judges of the Supreme Court of Western Australia, Chief Judge Sleight of the District Court, Judges of the District Court, Chief Magistrate Heath and members of the Administrative Appeals Tribunal, and ladies and gentlemen, welcome all.

Mr Macliver on behalf of the Attorney General.

MR P. MACLIVER: May it please the court. I would to begin by acknowledging the traditional owners and custodians of the land on which we meet today, the Whadjuk peoples of the Noongar nation, and I also pay my respects to their elders past and present. It is a great honour to be here today to congratulate your Honour on your appointment as a judge of the Federal Court of Australia. The Attorney-General, the Honourable Christian Porter regrets that he isn't able to attend the ceremony today. He has, however, asked that I convey the Australian Government's sincere thanks for your Honour's 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 Honour's appointment to this Court is another significant achievement in an already distinguished career. It is a reflection of the high regard in which your Honour is held, that so many of the judiciary and legal profession are here today. May I particularly acknowledge the Honourable Peter Quinlan, Chief Justice of Western Australia, the former Chief Justice of Australia, the Honourable Robert French AC, current and former members of the federal and state judiciaries, members of the Administrative Appeals Tribunal and members of the legal profession. May I also acknowledge the presence of many members of your Honour's family, in particular, your wife Chelsea, your three children, Finn, Jasper and Rosie, your brother Vaughan and your stepfather Dennis and stepmother Helen, who all proudly share this occasion with your Honour. 

A full exposition of your Honour's achievements and contributions to the law would occupy more than a mile, if time permits. Therefore, this afternoon, I will focus on just a few of the qualities and experiences that have marked your Honour's career to date. These will no doubt shape the important contribution your Honour will make to this court in the future. Your Honour, I understand, is the first in your family to pursue a career in law. I've been told that your mother, Dianne, and several teachers noticed your high level of intellect at a young age and, as a result, your mother arranged for you to undertake private school scholarship exams and this led to you successfully obtaining a scholarship to Scotch College in Western Australia. While at Scotch College, your Honour excelled as a student and you were dux of your year for three of the five years you attended the college. You were also a keen member of the school debating team and I've been informed that your Honour was selected for the Western Australian State Debating Team competing in national competitions in the Eastern States.

Your Honour's achievements at school provided a natural progression to your studies at university and you graduated from the University of Western Australia with a Bachelor of Jurisprudence and Bachelor of Arts in 1990 and a Bachelor of Laws with Honours in 1991. I'm informed that it was your Honour's deep love for history, philosophy and ideas which encouraged you to return to the university some years after completing your Law Degree to also obtain Honours in your Arts Degree in 2000. While at Law School, I've been told that you worked as a parking valet at the famous Mediterranean Restaurant in Subiaco, a unique place on Friday nights with many well-known Perth business leaders in attendance. It has bee remarked that this experience provided you with a unique insight into the Bell Group case many years later and perhaps even guided your Honour's decision as to where you would complete your articles. After university, your Honour completed articles at the firm of Northmore Hale Davy & Leake, now Minter Ellison. In 2010, your Honour was called to the Western Australian Bar and you set about building a thriving practice across a range of areas.

You were known for your wide experiences in all aspects of commercial litigation, specifically involving corporations, trade practices, competition, energy and insolvency law and in recognition of your success at the Bar your Honour took Silk in December 2016. I understand that your career at the Bar has been marked by a number of commendable characteristics that will bode well for a long and fruitful career on the Bench. First, your Honour's aptitude for the law which is enhanced by your Honour's measured approach and professional manner. Your Honour approaches every task with careful consideration, balancing your client's needs with a clear view to what is proper and the potential consequences.

However, I have been informed that this measured approach does not come at expense of your speed and that your Honour possesses an envious ability to receive and process information in a manner that is described as nothing short of exceptional. Your Honour's ability to always conduct yourself in a professional manner during conferences and meetings by encouraging discussion and always being respectful of the views of others has been praised by your peers. These qualities have served your Honour well in taking on demanding briefs, such as your involvement in the Bell case and appearing in numerous hearings before various courts and tribunals, including the Federal Court, the Supreme Court of Western Australia and the Western Australian Court of Appeal.

Second, your Honour's leadership and mentorship as the Chairman of the Board of Directors for Francis Burt Chambers, your Honour has been described by your peers as a natural leader on whom others can rely for support and guidance. It has been remarked that your Honour's approachability, sense of humour and kindness have greatly assisted your colleagues in managing the sometimes difficult days that come with working with the legal profession. I've also been informed that your Honour is very generous with your time and your colleagues have always been able to count on you to be available to help them through with a problem and bounce ideas around.

It has been observed that your Honour has been a consultative, diplomatic, good-humoured Chairman exhibiting humility and grace under pressure and that your support and guidance will be sorely missed by Francis Burt Chambers. These are all admirable characteristics that make you undeniably suitable for your appointment to the bench. Your Honour also possesses a number of personal qualities that have made you a valued part of some many lives. It has been noted that you are kind, calm and generous person with the ability to quietly, sensitively listen and appreciate another person's point of view. It has also been remarked that you have the unique ability to bring the energy of a room from frenzied and unsettled to a more constructive, peaceful and positive place.

This quality, in particular, will no doubt serve you well on the Bench. I'm also informed that your Honour possesses an extraordinary discipline and that despite your demanding workload and not being a morning person you still find the motivation to get up, go for a run, meditate and have breakfast all before the sun has risen. Notwithstanding your demanding work life, your Honour's deep affection for your family and a range of diverse hobbies and interests is also noted. I am told that your Honour is driven by the love, wellness and happiness of your family and that you're a loving husband to your wife, Chelsea, and a proud father to your three children who have all helped to keep you grounded.

Your Honour is known to have never missed a beat when it comes to important family events and anniversaries and I understand your Honour always makes time to be with your children, to ask them about their days and have a laugh and help them with their schoolwork or university material. Your Honour has also been described as a sensational cook, an interest and skill shared with all your children but, particularly, with your second son, Jasper. I understand your guidance in the kitchen and your enjoyment of the whole cooking process has had a big impact in unleashing Jasper's own culinary talent. Multiple sources have remarked that your Honour has an extraordinary passion for music.

In fact, it has been said that your Honour's stamina for attending live shows across Australia rivals your output of advice as a Silk. I've also been told that your Honour was part of the most punk vanguard that was the independent music scene in Perth as front man for Bezoomny Mesto. Your Honour is further known to have co-hosted the Golden Apples of the Sun, a Sunday afternoon radio program on RTRFM and enjoyed curating playlists with various songs form the 1980s and 90s and deejaying under the name Dazzy J. This hobby has given your Honour the enviable ability to turn dinner parties into dance parties. In concluding, your Honour's appointment to this court is a testament to your many years of hard work and dedication to the legal profession. No doubt your Honour will bring your well-known qualities of intellect, discipline, leadership and generosity to this Court. On behalf of the Australian Government, I extend to your Honour my sincerest congratulations and welcome you to the Federal Court of Australia. May it please the Court.

ALLSOP CJ: Thank you, Mr Macliver. Mr Davies.

MR DAVIES SC: On behalf of the Australian Bar Association and on behalf of the Western Australian Bar Association, may I present our compliments and our congratulations on the occasion of your Honour's appointment as a Judge of this Court. I wish to associate the Bar Associations with each and all of the complimentary remarks that have fallen for my learned friend. I would like to start by acknowledging Chelsea, Finn, Japer, Rosie and your Honour's brother, Vaughan, who are present in Court, and to do so first because anyone who knows your Honour can attest that your Honour's family are and always have been first and foremost in your Honour's field of vision.

Your Honour's parents are no longer with us, and while Chelsea and your children and brother are no doubt observing today's proceedings with very considerable pride, no one will be more proud than your Honour's mother, Dianne, if she were here to see the height that her son that she raised, that she put through Scotch College and encouraged into university has scaled in the profession that your Honour has chosen. In the practice of that profession, your Honour has been an exemplar, and your Honour has a fine intellect and a cool head, but when your Honour comes to consider any problem, your Honour resorts to principle and it has always been so.

Other than a little bit of moonlighting as a Fremantle hipster in your private time, your Honour has led a blameless life. It has been necessary to cast the mind well back in the search for something to say that might illustrate these remarks, but, happily, I would remember an incident from when your Honour was about 17 that illustrates your Honour's attention to principle. Your Honour was a member of the United Nations Youth Association. As an exercise, the group was divided into three teams representing three countries. Each team was allocated a set amount of time to build from paper models of either intercontinental ballistic missiles or anti-intercontinental ballistic missiles.

At the end of the set period of time, each team was to notionally allocate to one of the other countries either their intercontinental ballistic missiles or their anti-intercontinental ballistic missiles with a view to seeing the ultimate outcome. Your Honour was part of a team that, unbeknownst to the other teams, declined to make any models at all and this illustrates your Honour's attention to principle and your Honour's team was obliterated. In later years, your Honour has developed pragmatism but, of course, characteristically, pragmatism guided by principle. Indeed, your Honour has and has developed over an exceptional career all of the qualities for a fine Judge and the Bar has no doubt whatsoever of that fact and we wish your Honour every success in his appointment. May it please the Court.

ALLSOP CJ: Thank you, Mr Davies. Mr Howard.

MR M. HOWARD SC: May it please the Court. It is my pleasure and privilege to appear this afternoon on behalf of the Law Society of Western Australia and the Law Council of Australia to welcome your Honour to this Court. Although the previous speakers have covered in detail highlights of your his Honour's career to now, I must note your Honour's previous service to the Law Society through being a member of its CPD Education Committee. Your Honour was regularly sought out by both the Law Society and the Bar Association to present at educational seminars and, in the case of the National Bar, in its trial advocacy courses. Your Honour was also much in demand as a wise pupil master at the Bar to young barristers starting out.

However, at the risk of injecting a note of reality into proceedings, I feel I must note two matters. Firstly, although much admired as an advocacy coach, your Honour is still the only person to have set fire to a reader's clothing during an advocacy course while coaching in the course. Secondly, notwithstanding your Honour's reputed popularity as a pupil master, your Honour's last pupil literally had a better offer this afternoon and has removed herself from the jurisdiction, accordingly. Your Honour becomes, I am reliably informed, the 51st current sitting Judge of this Court and the 165th to sit in the Court's history. Whether your Honour has that number stitched inside your robes has not yet been disclosed.

While contemplating numbers, at the welcome of Justice Vaughan last year, I attempted to tally the number of counsel who had worked on the Bell matter who had then been appointed to the Bench. I was subsequently informed by a member of the Court of Appeal that I had the number wrong. Many of us are used to such judicial feedback. We all look forward to that sort of feedback from your Honour in the future. I can say, however, with a high level of confidence that your Honour is the fourth judge at whose welcome I have spoken at who has been counsel in the Bell matter and that is to account both welcomes for Justice Banks-Smith as one. At their joint welcome, your Honour the Chief Justice was congratulated on having induced Justices Banks-Smith and Colvin to join the Court in such a caffeine-challenged part of Perth.

Your Honour Justice Banks-Smith in reply noted that the speaker had been misinformed as, apparently, your Honour Justice McKerracher had assured you that this was, in fact, the Paris end of Perth with all of that, that that entails. Suffice to note that members of your Honour's floor at chambers were not convinced. Instead, they had purchased a splendid coffee machine for your Honour's new chambers. Should you not wish to share that machine's output with your sibling Judges then, at least against Justices McKerracher and Banks-Smith, one might imagine there is a coffee estoppel available. Your Honour is a person of many and varied passions and interests. Your Honour's passion for music and occasional stints as the DJ has already been touched upon.

What may not be as well known is your Honour's amateur acting career. Critics, well, at least two people, remember fondly your Honour's performance in the '80s as Touchstone in Shakespeare's As You Like It. Touchstone is usually described in the playbill as a "court fool." Any relevance of that to today's events is probably best left unexplored. One may imagine that one of the people is your wife, Chelsea. In that same production she played Audrey, a country maid who is wooed by Touchstone. Perhaps reflecting your Honour's gift of advocacy, Audrey initially rejects Touchstone before being finally persuaded to marry him. Outside of Shakespeare, your Honour was always a careful, insightful and meticulously prepared advocate. Coupled with your disarming charm and wit, your Honour was a formidable opponent.

In what, from my own self-interest, I hope is described later as a "clash of titans," I had the pleasure and significant challenge of appearing against your Honour in a matter in this Court late last year. That matter was rated by your Honour's junior as one of the highlights of her career at the Bar. So impressed was she, that she made it a centrepiece of her toast at last year's Bar and Bench dinner. Perhaps unkindly, your Honour's junior was not speaking of your Honour's advocacy but, rather, that your Honour and I were appearing on either side of a case concerning hair loss services. The wailing and lamentations in the profession on your Honour's announcement were heartfelt, even if it was immediately conceded that the Court and society had correspondingly gained.

Nevertheless, to have come to the Bar too late is really no excuse to have left it too early. Your Honour brings great legal abilities, an even temperament, attention to detail, a huge work ethic and real humility and humanity to this Court. The Law Society locally and the Law Council of Australia nationally congratulate your Honour. We look forward with every confidence to many years of appearing before you. May it please the court.

ALLSOP CJ: Mr Howard. Justice Jackson.

JACKSON J: Thank you, Chief Justice. Mr Macliver, Mr Davies and Mr Howard, thank you very much for your kind words. I am not the first to make the observation that these occasions feel a bit like one's own funeral. People have to talk about you at length, but they're not allowed to say anything bad. Mr Davies, that must have been a particular challenge for you given how long we have known each other. I thank you for complying with my request that whatever you do don't tell the truth. The Honourable Robert French AC, Chief Justice Peter Quinlan, Chief Judge Sleight, Chief Magistrate Heath, my new colleagues on the Bench of this Court, and other distinguished guests, colleagues, friends and family, you do me a great honour by being here today.

I will confess to being daunted by this occasion, but I am much more daunted by the challenge that lies ahead. It is natural to think of a ceremony like this one as marking an achievement, but, of course, I haven't reached the top of the mountain, just the bottom of the next one. Only time will tell whether I will ascend or stumble. With that in mind, I will refrain from issuing lofty pronouncements about the role of the Judge, but there are two aspects of the challenge I want to mention because I have been thinking about them quite a bit. One is complexity. The increasing complexity of modern society is inevitably reflected in the cases that come before the Court and the judgments that it issues. It may be that the trend can't be stopped, but, perhaps, at least Judges can avoid accelerating it. We must not make hard cases harder.

The other challenge I have been thinking about is presented by what might be called the human element. Judges must decide cases according to law, but the legal process is not just a set of algorithms. I hope I don't forget that very often someone's livelihood, reputation or even way of life is on the line, and that when those things are at risk it's not just what we decide, but how we go about deciding it which is important. I hope I never lose sight of the reality of human vulnerability and human frailty, not least my own. I suppose what I'm trying to say is that while I am going to judge, I will try not to do it in a judgey way.

But for me, the main point of today is to say thank you. While it may seem strange to respond to the funeral orations with an Academy Award acceptance speech, there's no getting around the fact that if this is an achievement it is far from mine alone.

I was lucky to spend the first half of my professional career at Northmore Hale Davy & Leake, which became Minter Ellison. I started there as a law student working for the litigation partners, David Wallace and Bruce Goetze, now his Honour Judge Goetze. David and Bruce were the first lawyers I ever met and I could not have had a better introduction to the profession. They each set a fine example for me with their depth of knowledge, thoroughness and ethical approach, along with a sure grasp of that human element I've already mentioned. I'm particularly grateful to David for taking me on and taking me under his wing.

When I joined Northmores, it was steeped in the finest WA traditions of the generalist Solicitor Advocate, so even though I came to the Bar late, I did not miss out on a sound grounding in advocacy. I was articled to John Chaney, later Justice Chaney, and also received first-class training and guidance in commercial litigation from Michael Ferguson and Peter Doherty. I would also like to mention my good friend, Graham Nagle, who was half-mentor and half-partner in crime during those early years. I am very happy that all of you whom I have mentioned have come along today.

As a solicitor, I was, of course, not blind to the attractions of the Bar. I was lucky enough to brief and work with some very fine barristers, including Graeme Murphy, now Justice of Appeal Murphy, and Andrew Beech, now Justice of Appeal Beech, both of whom taught me a lot and have done me the honour of coming here today. I confess, however, that I wasn't sure that arguing over other people's money was the best way to spend a life, so it took me longer than it should have to become a barrister. I say longer than it should have because as soon as I got to the Bar I realised both that I was in my element and that it was about much more than arguing over other people's money.

The Bar is a calling, essential to the proper administration of justice, which is, in turn, essential, to a society where life is not nasty, brutish and short. And far from being an argumentative place, I found it to be highly collegiate and supportive. I'm indebted to too many people to thank individually, but I'm delighted that so many of my colleagues from this most recent phase of my career are here today. That goes as well for the fine instructing solicitors I had the privilege to work with, many of whom have made the effort to be here. I'm deeply grateful for the support that you gave my career. I'm also very grateful for the cheerful and indefatigable professionalism of my personal assistant, Shelly Botica. Shelly, I'm sorry that this is Groundhog Day.

I now turn to the most important people – family. It is a matter of great regret that neither of my parents, Dianne and Ross, are here. They both died too young. Mum would have been especially happy to have seen this day and she would have been entitled to feel a sense not just of achievement but of vindication. Mum and Dad separated when I was 11 and Mum raised me and my brother, Vaughan, by herself from then on. It was a time when there was still a degree of stigma in coming from what was known as a "broken home." Today is a testament to how hard Mum worked to instil the right set of values in us and to give us every opportunity to succeed. I very much wish she was able to be here to see this day.

I'm sure that many of those present know firsthand the particular feeling of being alone in the world that comes with the passing of both of one's parents, but I've never really felt that way because as it happens I have parents galore. I'm referring to the step-parents and parents-in-law who have made me feel supported and loved throughout my life. Dennis, Gerie and Ole, David and Maggie and Helen, I'm thrilled that you're all here today.

My children, Finn, Jasper and Rosie, I'm so very proud of the amazing people you have become, even though that is only a natural development of the amazing people you've always been. I think back with special fondness to all those times around the dinner table when you would listen breathlessly to the thrills and spills from my day which might have been spent in a gas arbitration or on a pipeline regulation case. Perhaps I'm remembering that wrongly, but don't worry. It's only a matter of time before the Income Tax Assessment Act comes up in my new job and I will be sure to tell you all about it.

And now for the most important person – Chelsea. You've been a part of my life over 30 years now. You were 17 and I was only 19 and Mr Howard has told everybody the tawdry tale of how we met. That lapse of time really means that you have been my life. It's a trope of these judicial welcome ceremonies to acknowledge the sacrifice made by the new Judge's spouse in putting up with long work hours and frequent absences. This speech can be no exception, but you never resigned yourself to long work hours and absences. You never made me feel that was just a fact of life and that you and the kids could get along perfectly fine without me. You always made it clear that we were an indivisible unit. For that, I'm truly, deeply grateful. In the words of the Michael Leunig cartoon, you've always been my "direction-finding duck." This day is yours as much as it is mine.

But now I can hear the Academy Award music rising in volume telling me that I've gone over time. Thank you everyone for coming. Once again, you've done me a great honour.

ALLSOP CJ: The Court will now adjourn.


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