In Conversation with The Honourable Justice Susan Kenny

Justice Kenny 01 December 2010

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Justice Susan Kenny has been a Federal Court judge since October 1998. She has worked as a solicitor, as an associate to Sir Ninian Stephen, and as a barrister at the Victorian Bar where she was appointed Queen’s Counsel prior to her appointment to the Court of Appeal of the Supreme Court of Victoria. She is a part-time Commissioner at the Australian Law Reform Commission, and has previously been a Commissioner of the Human Rights and Equal Opportunity Commission, as well as President of the Administrative Review Council. She also holds a number of university appointments, and positions relating to judicial training and appointment, too long to list in this short introduction. She was placed first in both history and law at the University of Melbourne, and has a Doctorate of Philosophy in law from Oxford University. Despite such an overwhelming CV, as I found in conversation, her Honour presents with the sort of self-effacement that she observes and admired in Sir Ninian Stephen.

Q: You spent 1979 and 1980 as an associate to Sir Ninian Stephen. Can you tell me how you found that experience and what impact it has had on your career since?

A: I found working with Sir Ninian to be one of the most remarkable experiences I've had in my career. He was always very courteous, hard working, and open minded about difficult legal issues. For a 25-year-old, to work with a judge like that was an extraordinary privilege.

One of the things I especially liked about him was that he never boasted. He liked to tell young associates about other lawyers and the great deeds they'd done and always with a desire to inform you and inspire. There was a certain self-effacement about Sir Ninian that I really liked. If he asked a question in court it was only to find out the range of the problem. Working in his chambers was one of those experiences that you look back on with great affection.

So to answer your first question, that's what it was like. How did it impact on me? A lot of people have had various impacts on the way I've grown, as with anyone else, but I think I certainly wouldn't have chosen to go to the Bar if it hadn't been for my experience with Sir Ninian. I'd worked in a firm of solicitors before then and enjoyed it; but hadn't really wanted to go and practise in that part of the profession, so I entertained the idea of maybe going into academia. I was very uncertain, and the large range of options that are available to young lawyers today wasn't available in 1981. It was really Sir Ninian who said, "Why don't you go to the Bar, I think you'd like it." And so I did!

Q: Was being exposed to the immediacy of law in action and decisions being made something that attracted you then to going to the Bar rather than into academia?

A: I think so. The High Court was an exciting place to be as a young lawyer and it was a time of great change. Those who were arguing before the Court were usually very good, and the judges themselves were grappling with many large issues, such as how to make sense of s.92 of the Constitution. You might remember Uebergang v Australian Wheat Board was one of the major cases at that time. On the one hand, there was the relatively narrow focus of Sir Garfield Barwick, and, on the other, what we would now recognise as an approach closer to Cole v Whitfield in that of Sir Ninian Stephen and Sir Anthony Mason. So it was tremendous to see how things were argued and how judges dealt with the problems, and to see the law being created and developed.

Q: Sir Ninian, with his fellow judges, I've noted, delivered about 76 decisions in 1979 and about 68 in 1980. Are you able to give an insight into how that was possible, and was having a good associate the main secret?

A: The answer to that last question is absolutely no. The secret I think was that Sir Ninian would write all his judgments longhand first and they would then be typed up in the old-fashioned way, without a word processor or memory typewriter. So, by the time the judgment came to be written, it was usually reasonably succinct. The judge had usually worked out his approach to the problem before, as far as I could see, he commenced the serious writing. There would, in most cases, be a period when he would ask you, as his associate, to take out the papers and look at them and then he'd call you in to discuss the issues and, in the course of that discussion, you'd start to see where he was inclined to go. Sometimes he'd ask you to do some further work on an area. By the time he came to write, he was relatively firm in his own mind about the decision, whereas today, because we have word processors and the like, we tend to think as we write. The result is that our decisions are longer, and probably take us more time to write. That, I think, is part of the answer.

The other answer is that the judges themselves were extremely hard-working, as judges still are today. They were, however, probably less accessible to the community. There wasn't a great deal of time spent on formulating speeches or attending public gatherings. I'm not sure about the quantity of material that we look at today and whether there is more of it. There are certainly more published judgments but I think the quantity of material was still considerable then. I don't think that's an excuse.

Q: After your associateship, you went directly to the Victorian Bar. You said that your experience with Sir Ninian had an impact on that decision. Had you otherwise given much thought to going to the Bar?

A: No, not really at all. When I was at university I rather had hoped to become a historian but I was persuaded to finish my law course and I enjoyed it. Then, I did articles and I enjoyed that too, but I was really still looking for what I wanted to do. Ruth Campbell, then at the Melbourne University Law School, suggested that I apply to Sir Ninian's chambers and I did, and it was really from there that I decided that I wanted to go to the Bar. Not immediately; but I really enjoyed the argument and I liked the way law developed in the courts, which I'd never seen before. I didn't come from a legal family. I had no idea how it really operated and I thought it was very exciting. So that, and Sir Ninian's encouragement, took me to the Bar.

Q: And has your interest in history been something that has worked its way into your approach to the law?

A: Yes, I think so. It often seems to me that the history of an accepted principle, or of legislation, yields an appropriate answer to a difficult question. This way of looking at things is why I liked the way Sir Ninian wrote and some of the cases I enjoyed as an associate were really dependent upon historical research. There was a case called Ward v The Queen which concerned a murder on the banks of the Murray. You might remember it. The question was where the division between the States lay. Sir Ninian suggested to the High Court librarian and me that we might like to go up to the Mitchell Library to research the maps. We came back with quite a lot of material, and it was enormously satisfying to show him what we'd found.

Q: And, if I recall correctly, it resulted in a finding that the murder had been in New South Wales so the Victorian court hadn't had jurisdiction after all?

A: That's right.

Q: Returning to your start at the Bar, was there much adjustment required off the back of two years' experience of listening to High Court appeals?

A: The answer for me was probably not. But I think if you'd asked my then master, Peter Heerey (later Justice Heerey), and senior barristers around the place at the time, they'd have said that there was a significant amount of adjustment required! (laughs). I was probably much too interested in advancing my own views of the law and did not listen sufficiently attentively to rules of practice and procedure. So, I had to learn to be more practical, more realistic.

I was in an intake to the Victorian Bar wholly allocated to the one clerk, Mr Ric Howells, and his list was known as the baby barristers' list. Like most people, I depended upon my clerk for some work at least; and since I belonged to Ric's list, I was sent off to various local courts. So, I had a fair exposure to the local courts. Eventually, I decided enough was enough. I was briefed in a speeding case, which was a challenge for me, the defendant, and the court I suspect. The defendant won; and probably only because of the defendant's persistence. With this victory, I thought I would quit while ahead; and I didn't go back to the Magistrates' Court again!

Q: Perhaps it's a fitting time to ask how it was then that you developed your specialisations in constitutional and administrative law, and was it inspired by your time with Sir Ninian or the other way around?

A: No, I think it was a mixture of matters. Certainly working with Sir Ninian and watching the High Court deal with constitutional cases made a big impact. Those were the cases I really loved and I've mentioned Uebergang, but there were other cases as well. I always thought constitutional law the most interesting of subjects. I studied undergraduate constitutional law with Gareth Evans. He was then a senior lecturer at the University of Melbourne and a very vigorous lecturer, as you can imagine. He managed to impart an enthusiasm and an urgency about constitutional law that was really very exciting. Also, at the same time, I had a student job in the Commonwealth public service with the Department that then dealt with employment. I discovered what I was learning in constitutional law actually complemented what I was doing in the public service, and vice versa, so I really loved learning about the subject and how it worked at a practical level.

Q: After eight or nine years at the Bar, you went to Oxford to complete a Doctorate of Philosophy in comparative constitutional law. What motivated you then to step out of professional life to return to study?

A: Well, I'd been at the Bar about five years; I was touching 30 and my husband and I wanted to travel. We thought if we didn't travel then, we probably never would. I was torn between academia and the Bar, and I wanted to look more closely at constitutional law problems. I wanted to live in Oxford since I was born there; and I'd won a Menzies scholarship. It all seemed to make good sense to go.

Q: I was going to say it sounds to me like the legal equivalent of boasting a Ph.D. in Nuclear Physics. Was it at least part of your goal to increase your intimidation credentials in court?

A: (laughs) If I could I would of course, and you've got to remember for women it was quite hard then, so anything which would help you along was worth having, but that wasn't actually part of my motivation at all. While I realise the question was tongue-incheek, it is worth remembering that in 1981 women at the Bar were still a bit of an oddity. One could be made to feel very uncomfortable in certain circumstances. That explained partly why I was a bit equivocal about whether or not I wanted to stay. While some courts were delightful to appear in, there were some judges who really did not like the entry of women into their courts and some made me, as a woman, feel very uncomfortable. I'd ask myself, "Do I really want to stay in that environment?"

Q: Obviously you did choose to stay in that environment. Was there anything that changed for you?

A: I think the reason in the end for staying was that I had good friends at the Bar, and I had Sir Ninian's encouragement. Together, they made me feel as though it was worth staying on. I think because of that I did, but I can understand very well why some women would have said it was all too hard.

Q: While your perspective is now quite different as a Federal Court judge, are you able to detect whether things have changed significantly?

A: I think it has much improved, from what I hear from young female entrants to the Bar, although it's still not as good as it should be. I think what have improved are, first, the courts – I would be horrified to think that the courts today would treat advocates differently depending upon their gender. I'm not aware of this happening now. That is a significant difference because, if you know you can get into court with your case and be dealt with fairly, that makes a very real difference.

I think, secondly, having more women at the Bar means it's more normal, and women need no longer feel like oddities, and that should help self-confidence. There was a sense of exclusion, not acute. I would never say that I felt acutely excluded, but there was such a sense, nonetheless. I think that feeling of exclusion should have dissipated with the arrival of more women. I think, too, that the Bar itself has made efforts to be more inclusive, and that's a very good thing. So, I think it's better.

Q: Do any matters stand out for you from your time as a barrister?

A: A lot, for different reasons. There was the speeding case I've mentioned. There was also the very first case I can remember doing in the Full Court of the Victorian Supreme Court, with Kevin O'Connor, who is now President of the NSW Administrative Decisions Tribunal and was the first federal Privacy Commissioner. He and I had been at the Bar a very short time. We appeared pro bono for the Australian Conservation Foundation in a case called ACF v Shell, when our very much more experienced and capable leader was jammed for the oral argument. Kevin and I had to appear before the Full Court, consisting of the then Chief Justice, Sir John Young, and Justices Starke and Murray. We felt like the Melbourne University Mooting Team. I gather that the then Chief Justice didn't think the case would last long and told his secretary to leave his cup of tea where it was, because he'd be back shortly to drink it. Well, we managed to survive two days and, ultimately, we won. I have never forgotten that case.

Q: Hopefully he got over his cold tea.

A: (laughs) I don't know what his tea was like after two days, but I don't think he could drink it. I was also in the Tasmanian Dams case which I remember very well for totally different reasons. I was a "junior" to Sir Maurice Byers, Ron Castan and Peter Underwood and they were just a superb team. They were wonderful lawyers and to work with them and then see the other advocates in the Court was an absolute privilege. It was really very exciting.

Q: In 1997, you were the first woman appointed to the Court of Appeal in Victoria. What did that appointment mean to you at the time and did you experience much conflict in deciding to move to the bench?

A: The answer is yes and no. I thought at the time that I was immensely privileged to be asked. I was also worried that I was too inexperienced, too young, and inclined to think that really I should be more experienced than I was. One accepts for a whole host of reasons, probably best disclosed in one's memoirs when one's dead.

Q: You've written about the importance of the public perception of Australian courts and the impact of their composition both in relation to gender but also more broadly. With women comprising about 20% or less of the Federal Court and the Supreme Court of Victoria, what optimism do you presently hold for further shifting of the gender balance on these courts?

A: I think it will improve naturally and inevitably. When I look to the Bar now and to the young barristers coming through, I'm impressed by the generally high standard amongst both men and women. But, as we're talking about women, I can't see why that large group of talented young women won't eventually become judges in the Supreme Court and Federal Court, and other courts around the States, Territories, and Commonwealth.

Q: You later moved to the Federal Court. What attractions did the Federal Court hold for you?

A: The central reason was that I felt, as an appellate judge, I lacked the experience of a trial judge and I didn't have any commensurate experience to fill that gap. I hadn't been a long-time trial lawyer and I hadn't sat as a judge in a trial court. I felt rather presumptuous about dealing with often the quite workaday matters that arose in a trial from the point of view of a person who had never really been involved in that environment. So, the prospect of operating both as a trial judge and as an appellate judge seemed to me to be a good one and, although it's odd to say 12 years after becoming a judge, I think I made the right decision. This was not because I wasn't learning a lot in the Court of Appeal. I was learning an enormous amount there, and I was tremendously well-supported and mentored by the other members of the Court. I left with great personal regret, but I think to develop, given the age I was, and with the experience I lacked, coming to this Court was a good thing.

Q: Having experienced appellate work in both courts, do you have a view on the respective merits of having a separate appellate court on the one hand and drawing appeal judges from a pool of trial judges?

A: From my perspective, I like the system in the Federal Court much more. There are a number of reasons for this. I think if you're working as a trial and appellate judge on a daily basis, you tend to understand the problems of both more immediately, and those problems change as the changes in jurisdiction occur. If you're working as a trial judge you understand the possible problems of the appellate court should the case go on appeal and tend to present your work with that in mind – that is, to present the case in such a form that it can be dealt with expeditiously and fairly by a court of appeal if the need arises.

As an appellate judge, if you're used to the trial environment, I think you have more confidence to say what is and what is not appellable error, and to do it in such a way that the parties and the primary judge feel is appropriate. The danger of not working as a trial judge and being solely an appellate judge, at least in an intermediate appellate court, is that one will say things that mean nothing to the primary judge or, worse, create even more problems than before simply because one's not sensitive to what's going on within a trial. Hence, I think it's a very good system we have here. Apart from the fact that variety I think is what keeps judges alive and doing two kinds of work certainly leads to a healthy judicial outlook.

Q: Your first substantive intellectual property case in the Federal Court was the McCormick decision, which is still commonly cited and which identified a difficulty with the honest and concurrent use provisions in the Trade Marks Act, which still endures. How did you find that case, and how do you find, more generally, determining legal issues in an unfamiliar area of law?

A: I love it. Fortunately, in the intellectual property area by and large, the advocates are splendid and that helps a lot. So, it's fun to have two good advocates arguing. It's a real pleasure; and I wouldn't be a judge if I thought I was never going to have a difficult and new point to decide. And, the McCormick case I always remember with great affection because it was not only legally interesting, it also had a kind of factual interest as well. It was a very human case, if I can put it that way.

Q: From a somewhat biased perspective, it seems to me that that is more frequently true with intellectual property cases than perhaps some other areas of law.

A: I think you're right. I mean the great charm of intellectual property cases is that it takes you into a large range of human endeavour, whether it's batter mix or fashion, handbags and purses, or complicated machinery. It's taking you usually into a walk of life that you would not ordinarily see and there's the pleasure of seeing the witnesses who know that walk of life and come forward and tell you about it. It is a tremendously broadening experience, I think, and it's one of the charms of intellectual property cases. I think intellectual property is one of the most interesting areas in the Court's jurisdiction. One of my grandfathers came out from Scotland at a young age and took himself to Longreach in Queensland, where he trained himself to become a chartered accountant. He subsequently undertook more studies, without ever going to university. As a little girl, I can remember sitting on his knee as he explained something or other about engineering, or something like that. He taught me not to be frightened of new areas and new disciplines and to enjoy them. I don't think we have as many people like that now. Today, we tend to have experts university-trained in particular disciplines. But he did impart huge enthusiasm for all branches of knowledge, and he had the view that if you tried hard and concentrated, you could learn anything. I think that's partly why intellectual property is satisfying because one's compelled to learn about new disciplines. Further, as judges, we have wonderful advocates who make very good teachers.

I think it's important that the advocate in this field recognises that he or she is not just explaining the law, or arguing for a particular construction of the law, but in the end in many cases has to act as a kind of teacher to the court. To be able to explain the science simply is a real gift. There are some advocates that are just superb in this regard.

Q: From your experience of sitting on a number of Full Courts in intellectual property cases, or from other discussions with fellow judges, do you discern much difference in approach in the core issues for decision? I have in mind, in particular, some of the difficult decisions involved in each area of intellectual property, including deceptive similarity and comparison of goods and services for trade marks, inventive step in patents, substantial similarity in overall impression for designs, and substantial part in copyright?

A: No. Overall, I would say on the Full Courts that I've been part of I haven't been aware of very strong differences amongst the members of the bench. I would say the contrary is the case perhaps in areas like taxation, where you can see marked differences in analytical approach, but, in my experience at least, if we differ in IP cases, we differ more because of emphasis. We take different emphases in a case by seeing one point as more important than another, with the result that one judge will want to decide on one basis, and another on an alternative basis. But in terms of fundamental differences on those important areas, I've not been aware of strong, vigorous differences between us.

Q: In a 2004 speech that you gave honouring Justice Gaudron's contributions to the High Court, and in particular her commitment to the rigorous application of the judicial process, you said that "courts are responsible for delivering open justice and that includes writing plain, readable and honest reasons for their decisions". The word honest struck me. In striving to deliver honest reasons for your decisions do you ever find that reasoning that is initially attractive, on reflection involves assumptions that cannot be supported?

A: Yes, I think that's quite a common experience. Particularly in a complex case and especially in the intellectual property area. I can go into court with a view about a case, or about the issues in a case, and perhaps not be dissuaded even in the course of argument; but, when I get back to chambers and I start teasing out the assumptions I can reach contrary conclusions. Good advocates can mask some less-thanlegitimate assumptions in argument. The task of a judge is to discern the assumptions being made on both sides and evaluate them. This often requires quiet reflection and being intellectually tough on oneself.

Q: Is it a common experience for you that advocates will nevertheless try to develop submissions based on these sorts of assumptions, for example, in intellectual property cases an assumption that it would not be just to find in favour of a party cast as a copier or a freeloader?

A: Yes, advocates like to use those kinds of phrases; it is probably part of an advocate's armoury. While they may be immediately appealing, the attraction of phrases like that usually disappears when you look at them closely. If there's any truth in the ideas they generate, it usually lies elsewhere in the facts and law.

Q: Since 2003, you have also been a part-time Commissioner for the Australian Law Reform Commission. Can you tell me about some of your work with the Commission?

A: Well I'm a part-time Commissioner, as other judges of the Court have been, which means that you don't participate much in the dayto- day running of the Commission. You do have the pleasure of participating in major project work at a number of levels. First of all, the Commission operates by way of advisory committees, which means that the experts in a field come together to discuss a contemporary problem from their various perspectives.

There were two Commission Reports that stand out for me. One was the Uniform Evidence Law report and the other was the Gene Patenting report. The latter was particularly interesting, because around the table of the advisory committee, there were many people from the health areas, heads of medical schools, people in community health, people from Indigenous health, lawyers, and commercial interests. To get them to talk about a common problem together and freely is an extraordinarily interesting and fruitful experience. It was not just interesting in the sense that it would be interesting to any citizen but interesting particularly to a judge involved in the area because one starts to understand the complexity of the relationships that give rise to many of the issues confronting the legislators and, ultimately, the courts.

Q: Was that one of the first projects that you worked on?

A: It would have come in the early part of my term as Commissioner. In the end, as you know, the ALRC didn't recommend great changes to the Patents Act. In the law reform discussions, disagreements that begin as quite intense can dissipate as various stakeholders come to understand the views of other stakeholders.

Q: It's always struck me in relation to patenting of genes that much of the commentary that you read in newspapers is predicated on false assumptions about the operation of patent law. Did much of the review involve a learning process for the participants themselves?

A: Yes, it did. Law reform operates at a number of levels but I think getting people around a table to debate what is seen to be a contemporary problem often means that they tease out misconceptions and walk away satisfied that what they saw as a problem is really not a problem at all. So, that may mean that there is no need for reform, or it may mean that the area for reform is quite specific, and all the major stakeholders, or most of them, agree upon its necessity. It's good for government and parliament to know that that's what those informed think. It's a really valuable process. What's more, because it takes place outside government, with judges present, it means that people tend to feel that they're going to be dealt with on a non-political basis, and they are dealt with on a non-political basis. That's the other thing that impresses me about law reform in this country.

Q: Finally, given your large range of professional interests and commitments this may well be a hypothetical question, but what do you, or would you, do in your spare time?

A: Well, my non-judicial time is fairly full. I have a husband and three boys, 16, 12 and 9, so I'm pretty busy there. There are lots of sports runs and things like that. All three were born in Thailand and came to us by inter-country adoption and so my other major interest is in Thai culture, and I try regularly to learn more Thai language. When I retire I'm going to become fluent!