Ceremonial Sitting of the Full Court
To welcome the Honourable Justice Stewart
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE ROBERTSON
THE HONOURABLE JUSTICE WHITE
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE PERRY
THE HONOURABLE JUSTICE GLEESON
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE BROMWICH
THE HONOURABLE JUSTICE BURLEY
THE HONOURABLE JUSTICE LEE
THE HONOURABLE JUSTICE THAWLEY
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE STEWART
9.34 AM, MONDAY, 25 MARCH 2019
ASSOCIATE: Welcome of the Honourable Justice Stewart.
ALLSOP CJ: Welcome to this ceremony for public welcome to Justice Stewart. I acknowledge the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation, and pay my respects to their elders past and present. Sitting on the Bench today with the Judges of the Sydney registry are Justice Greenwood, Justice White and Justice Wheelahan, from the Queensland, South Australia and Victorian district registries. I welcome everyone here today – in particular, the family of Justice Stewart – and I acknowledge the presence of the Honourable Virginia Bell AC, Justice of the High Court of Australia, and the Honourable Andrew Bell, President of the New South Wales Court of Appeal, and Judges of Appeal, Federal Circuit Court Judges, Judges of the Supreme Court and the Land and Environment Court and the District Court. And, ladies and gentlemen, you're all welcome.
Ms Supit on behalf of the Attorney-General.
MS J. SUPIT: May it please the Court. 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 MP, regrets that he is unable to attend the ceremony. 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 members of the judiciary and legal profession are here today. May I particularly acknowledge the Honourable Virginia Bell AC, Justice of the High Court of Australia; the Honourable Justice Andrew Bell, President of the Court of Appeal; the Honourable Brian Preston, Chief Judge of the Land and Environment Court; and other current and former members of the judiciary and members of the legal profession who are attending today. May I also acknowledge the presence of your Honour's family, who proudly share this occasion with you. This includes your wife, Lyndsay, your two children, Olivia and Stirling, your uncle Robbie and your aunt Jean.
Time does not permit a full exposition of your Honour's achievements and the contribution your Honour has made to the law to date. Therefore, this morning I will focus on just a few of the qualities and experiences that have marked your career to date. Your Honour grew up in a close family in rural South Africa. It has been remarked that you have always been strongly motivated by a desire for fairness and justice for everyone. Your mother, Iona, recalled that you were in tears as a child one weekend because a boy in your class was being unfairly bullied and teased for something that he had no control over and you couldn't stop it happening.
Throughout your schooling, your Honour excelled academically. Although initially planning to study engineering, your Honour's passions for humanity and social justice led you to major in English and economics in a Bachelor of Arts, which you later followed with a Bachelor of Laws at the University of Natal in South Africa.
Your Honour's hard work and commitment saw you graduate at the top of your class, receiving a Rhodes Scholarship to study at the University of Oxford, where you earned a Bachelor of Civil Law and First Class Honours. Your Honour was called to the Bar soon after returning to South Africa and appointed silk in 2006.
After immigrating to Australia with your family in 2011, your Honour was called to the New South Wales Bar. You set about building a thriving and demanding practice across a range of areas and came to specialise in areas of arbitration, commercial law and trade practices and consumer protection, though I understand that you still maintain a strong interest in public interest, human rights and constitutional law. Your Honour was appointed silk in New South Wales in 2014.
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 calm and patient nature and superior problem-solving skills. It has been remarked that your Honour has an innate ability to thoughtfully and methodically work through problems, quickly working out what is at stake and later presenting as relaxed and reasonable in Court. Second, your Honour's eye for detail. It has been remarked that even as a busy silk, you would never take a proposition for granted, even when it was stated in a leading text on the subject. I am told that your Honour has been known to look into the authorities cited in a leading text for a proposition which struck you as unusual, find these authorities not to stand for the principle and proceed to caution your juniors on the use of such texts, with specific examples highlighted and flagged for attention.
Third, your Honour's love and commitment to the law more broadly. It has been remarked that your Honour believes ardently in a functioning legal system as a cornerstone to democracy and the rule of law and the development and maintenance of an equitable and fair society. Your Honour's commitment to the law can also be seen through your approach to leadership and mentorship. I have been told that despite having an incredibly busy and exciting practice as a silk, you always made ample time for your juniors to work through any matters in need of your advice, and your Honour has been described as warmly welcoming of comments and input from all people with whom you work.
Your Honour also possesses a number of personal qualities that have made you a valued part of many lives. Your Honour has been described as robust and resilient, with one source telling of a time when, at the age of four or five, you rode home without complaining after falling off a horse and breaking your arm. Your Honour is also seen to have inherited from your family a belief in the need for members of society to do their bit, volunteering and participating in social and community life. I understand that being a Judge is a significant form of public service for you and that this is one basis for your Honour's drive to perform outstandingly on the Bench.
Alongside your thriving career, I understand that your Honour deeply values your family and is passionate about sport and the outdoors. I am told that it was not only academically that your Honour excelled during schooling. As I understand, you also excelled in field hockey, where you ultimately captained the school's first team and captained a provincial schools hockey team. I have been told that, more recently, many of your family's weekend activities support the interests of your Honour's 15 year old twins, Olivia and Stirling. It has been remarked that your Honour can be seen listening to weighty non-fiction audiobooks while sitting in the shade at one of Stirling's many long cricket games. Your Honour is an avid follower of cricket, and I'm told that whilst you hold a soft spot for South Africa, you still support the Australian team. Your Honour also thoroughly enjoys kayaking, and you have kayaked competitively in the past with family members, including in Sydney competitions and Dusi Marathons in South Africa.
In conclusion, your Honour's appointment to the Court is a testament to your many years of hard work and dedication to the law. Over the course of your career, your Honour has been an outstanding ambassador for the higher values of the legal profession and the justice system. It has been observed that you are a loyal adviser, arbiter and friend to many. No doubt, your Honour, you will bring your well-known qualities of intellect, precision and a keen sense of justice and balance to this Court. On behalf of the Australian Government, I extend to you my sincerest congratulations and welcome you to the Federal Court of Australia. May it please the Court.
ALLSOP CJ: Thank you, Ms Supit. Mr McHugh, Senior Vice President of the New South Wales Bar.
MR M. McHUGH SC: May it please the Court. I begin by acknowledging the traditional custodians of the land on which we meet and pay my respects to their elders past, present and emerging. Your Honour, I appear today on behalf of the Australian and New South Wales Bar Associations to welcome your Honour's appointment to the Court. Today is an occasion to celebrate your Honour's achievements in law and acknowledge your Honour's suitability for judicial office and, as is conventional, to share insights about your Honour provided by colleagues and friends. Your Honour, so abundant were the contributions for this occasion that I am well-placed to author your biography. Yet, for today, it may please those in attendance to know that I will keep my remarks relatively brief.
For your Honour, it would seem that advocacy had been a vocational calling as early as your mid-teens. At age 16, in South Africa, there was an occasion when your Honour spoke out critically at a public meeting that was being addressed by a Minister of the State: a courageous thing to do in a political environment in which punishment for resistors was not uncommon. At university, your Honour was an anti-apartheid activist and served in student politics, doing what your Honour could to persuade privileged students to fight for equality. There, it was not unusual for your Honour to address enormous gatherings, and it is notable that those speeches have been described as rational and well-structured, which would later become characteristic of your delivery of arguments from the Bar table and to which we will return.
Early in your Honour's legal career, after studying at Oxford, your Honour returned to South Africa around the time of the election of Nelson Mandela to the presidency. There was a new Constitution with a justiciable Bill of Rights, which was an exciting time for human rights lawyers. So keen was your Honour to be an advocate that your Honour turned down a personal invitation to become an Associate on the new Constitutional Court, and your Honour answered the call to the Bar. Your Honour had not been at the Bar long when briefed before the Truth and Reconciliation Commission: work which stood your Honour in good stead for the role, nearly 20 years later, as Counsel Assisting the Royal Commission into Institutional Responses to Child Sexual Abuse.
For university law schools in South Africa, your Honour has been a lecturer, external examiner and honorary research fellow. And as an academic, your Honour has shared legal knowledge in numerous publications, including here the Australian and New Zealand Maritime Law Journal. It is evident that your Honour has an exceptional intellect and academic capabilities with three degrees including, as we have heard, a first class BCL from Oxford. Your academic success has been attributed to an inherent love for thinking, writing and learning which is thought to be inherited. Your mother, Iona, is a researcher with a doctorate in animal science and your father, Greig, was a scientist, academic and environmentalist described as an intellectual giant.
Perhaps no surprise then that your life partner, Lyndsay, whom your Honour met at university in South Africa, has an impressive academic record of six qualifications including a PhD in Social Psychology. Your Honour's intellectual life and contemplative nature has informed your Honour's style as a barrister, which is more about substance and perhaps wordsmithing than open warfare.
We at the Bar here were first able to observe your Honour's style in the Bar Readers' Course. Although your Honour was granted an exemption from the course, your Honour humbly wanted to do it and of course you were in the most experienced group when doing the applications and I was in a position to see your bail application and the others. And they were all very, very good – they put the most experienced applicants together – but you were better and why was that? It was structure. Your Honour said this is what I want and this is how I'm going to get it and your Honour did. And I have been telling that to the readers ever since. Structure.
Now, in respect of areas of speciality, your Honour had come to the law through an interest in human rights and civil liberties and over time became increasingly briefed in Commercial Law and in particular shipping matters. Your Honour had developed your speciality in shipping in South Africa – which has that wonderful associated sistership jurisdiction that we won't talk about today – and a former pupil recalls the first time shadowing your Honour in a court in a shipping matter.
It was after your Honour had succeeded in a shipping case at trial and the other side applied for leave to appeal and in doing so, they had briefed the now late Mr Douglas Shaw QC, known as the father of the Admiralty Act and author of the authoritative Shaw's Admiralty Jurisdiction and Practice in South Africa. Applying for leave, Shaw QC, no doubt by reference to his own master work, submitted there had been error justifying the grant of leave. Your pupil I am informed listened in both admiration and horror – admiration for Shaw and horror for your Honour – thinking that leave must be given and wondering how on earth your Honour would have anything to say in response as a then young junior against the force of nature that was Shaw QC in full flight in his favourite area.
I am reliably informed your Honour sat calmly and when called on – not always a good sign for a respondent on a leave application – when called on, your Honour stood up with quiet confidence and a wry smile and spoke slowly, "My Lord, the applicant for leave is grasping at Shaws". The court laughed – Shaw QC perhaps less so – and then with your trademark three forceful points, your Honour responded to the arguments and explained why the judgment was unassailable. Needless to say, the court agreed and leave was refused. Given your Honour's reputation and demonstration as a skilled advocate, it's hardly surprising that your Honour went on to take silk in South Africa and indeed be appointed an Acting Judge.
What is remarkable later is that while still practising in South Africa, your Honour managed to meet the requirements of being admitted to the New South Wales Bar, move your family to Sydney, establish a new practice here, take silk and now be appointed a Judge of the Federal Court, all within a decade. In effect, your Honour has made the progression from admission to the Bar to Senior Counsel to the Bench twice.
Among personal achievements, we note your Honour's public service and generous contributions to the legal profession and legal education, including your work in pro bono public interest law cases. In respect to engagement within the profession, your associations are too many to mention and have included being a member of the Australian Association of Constitutional Law, a Fellow of ACICA, the Australian Centre for International Commercial Arbitration, and of course MLAANZ, the Maritime Law Association of Australia and New Zealand. For the New South Wales Bar, your Honour has taught on the Bar Practice Course and served on the Transport Maritime and Air Law Committee as well as the Professional Conduct Committee where your Honour's views, although not intended to be persuasive in that environment, were so insightful they were quickly adopted into the committee's reports.
As promised, I will not recount all the milestones of your Honour's entire career yet, with the Court's indulgence, there is something personal I can say of your Honour's move to the New South Wales Bar and indeed now of your Honour's appointment. Regarding your Honour's move to Sydney, we met at a World Bar Conference and, sharing at least an interest in Admiralty Law, I recall encouraging your Honour to come to the Sydney Bar, noting, only half joking, that there's always room at the top. Sure enough, after being called to the Bar – called to the New South Wales Bar, your Honour quickly went on to establish yourself as a pre-eminent transport Barrister. Certainly, I had noticed I wasn't as busy as I had once been in shipping.
And now, following the announcement of your Honour's appointment, I received a call from a leading maritime Solicitor in Sydney, who will remain nameless as no doubt there are any number of immediate past presidents of the Comite Maritime International practising in Sydney. In any event, Hetherington's first words to me were, and I quote, "You're the beneficiary of Stewart's appointment" and I picked up a nice little salvage claim for an 87,000 tonne dry bulk carrier off Gladstone. You may be missing the Bar already, your Honour.
Now, of course, your Honour already had extended family here, with your uncle and his family having pioneered the way, so to speak, in Sydney. It hasn't all been about the law. Your Honour is generous with your time and family oriented, giving practical assistance, whether it be mending fences or helping family members to move. Your Honour is a committed father to your twins, Olivia and Stirling. With Stirling, your Honour, as we have heard, shares a passion for cricket and as an accredited junior cricket umpire your Honour has spent weekends umpiring and watching Stirling's games. With Olivia, your Honour shares a love of technology and tools and has spent many happy times together in the workshop. Your Honour and sister called your mother and father by their first names which reflects a strong commitment within the family to an egalitarian world view, something your Honour is passing on in the great respect your Honour has and shows for your children.
Together with Lyndsay, you all share fabulous adventures: camping, cycling, exploring in the outdoors as we have heard, if not relaxing at one of the regular family barbecues. Your Honour has also had the opportunity to combine the law with your family when you represented your cousin in a Court of Arbitration for sport as counsel. The case succeeded and your cousin went on to win an Olympic gold medal for kayaking at the London Summer Games. Your Honour's extended family are also incredibly proud of your contribution as a Lawyer and I'm told your father would have been extraordinarily proud of your Honour for being appointed as a Judge, not because of the status that accrues to this position in society but because he fiercely believed in the value of public service and a need for individuals to make as much difference as possible wherever possible.
Your Honour, the Australian Bars welcome your elevation to the Bench. If I can use a Maritime Law analogy, if your Honour's commission was a sea carriage document and we were to apply article III, rule 1 of the Hague-Visby Rules to the Court, then the powers that be have exercised due diligence to make this ship seaworthy and properly manned, equipped and supplied at Court through your Honour's appointment. I won't extend the analogy to article III, rule 3, about enumeration of packages and pieces that some of the Maritime Lawyers know about but on behalf of the Australian Bar Association and in particular the New South Wales Bar, I extend sincere congratulations and wish your Honour all the very best in judicial life. May it please the Court.
ALLSOP CJ: Thank you, Mr McHugh. Mr Moses, President of the Law Council of Australia.
MR A. MOSES SC: May it please the Court. I also acknowledge the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation, and pay my respects to their elders past, present and emerging. It is an honour to speak on behalf of the Law Council of Australia to welcome Justice Stewart's appointment to this Court. Your Honour will bring a wealth of knowledge and expertise to the Bench gained during your Honour's diverse and distinguished career in Australia and internationally.
I welcome your family and friends with us today – in particular, the pre-eminent Dr Lyndsay Brown, your wife, a remarkable person, and your twins, who you adore, Olivia and Stirling. I know that your Honour's CV is exemplary, as we've heard, but I know your proudest, most cherished roles are that of a devoted partner and father.
Your Honour grew up on a dairy farm in South Africa, and, as we've heard, you completed your Bachelor of Arts with English and economics majors at the University of Natal in 1988. You were not really interested in a career in law at that time, but, as we've heard, your Honour was heavily involved in anti-apartheid work as a student. Your Honour has said that it was that work that led you to first see law as a space where one can fight against social injustice and potentially make a difference, and a difference you have made, your Honour. You completed your LLB as class medallist and, two years later, your Bachelor of Civil Law with First-Class Honours at Oxford as a Rhodes Scholar for South Africa.
Your Honour is an athlete of some prowess, and it was your skills as a kayaker that led you to Oxford. You were at Oxford at the same time as President Bell of the New South Wales Court of Appeal, who joins us today, and I was once present during a conversation with your Honours when President Bell may or may not have been exaggerating about his prowess at cricket whilst at Oxford. Your Honour politely said that it was not the way that you remembered it and President Bell may have been engaging in historic revisionism. President Bell looked at your Honour and said, "Maybe you're right, but it's a good story," and his Honour continued to tell the story, as his Honour does.
Your Honour was admitted to the profession in South Africa in 1996 and practised at the Durban Bar for some 15 years in the post-apartheid years. During this time, as we've heard, your Honour worked in that very important Truth and Reconciliation Commission, a justice body described by former Minister of Justice Mr Dullah Omar as a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation. The Law Council has said that Australia would also benefit from such a commission to come to terms with its past. I've heard your Honour describe the very difficult work that you undertook in that commission as bearing witness to people's experiences and giving people the opportunity to be heard.
That attitude of great respect and that acute appreciation of the very essence of what it means to be an advocate, to speak for the voiceless, has been a defining characteristic of your Honour's career. Australians saw that same commitment to the administration of justice in the respectful, dignified way you conducted your work as Counsel Assisting the Royal Commission into Institutional Responses to Child Sex Abuse, where you worked alongside friend and colleague, Counsel Assisting and fellow New South Wales Barrister Dr Hayley Bennett. The community owe you a great debt for your work on these important endeavours.
Your Honour's earnest commitment to the rule of law, to public service and to seeing justice be done is precisely why we, as a profession, are confident you will be an asset to the Court. Your Honour took silk in South Africa just 10 years after admission, a testament to your exceptional talent, legal acumen and advocacy. You regularly appeared in South Africa's highest Courts, and your practice was diverse, spanning most areas of civil law but with particular specialisation in transport, logistics, international trade, private international law, insurance, commercial law, constitutional administrative law, human rights, land rights and public interest law. In 2009, you served as an Acting Judge of the KwaZulu-Natal High Court.
After immigrating to Australia with your family, your Honour was called to the Bar in New South Wales in 2011. South Africa's loss has been very much our gain. In coming from South Africa, your Honour follows the path of other lawyers, such as the Honourable Justice David Ipp, who himself came to be a giant of our profession in Western Australia and New South Wales, and his Honour is here with us today. I had the privilege of working alongside your Honour at the New South Wales Bar, where we both practised at New Chambers, and you are in good company joining one of our colleagues, the Honourable Justice Tom Thawley, on the Bench.
Your Honour has many commendable traits, but something your peers remark upon without fail is your Honour's grace and humility, and for that reason I will not embarrass your Honour by dwelling on the fact that you were once referred to in the media as the sexiest intellect in the Southern Hemisphere. I will footnote that in the speech for the Court records. It is a true measure of your humility that despite having made it in South Africa, practised as a silk for five years with a formidable record and having served as a Judge, as we've heard, your Honour chose to complete the Bar Practice Course and sit the Bar exam like any other candidate.
The Bar Practice Course involves a practical component, where advocacy exercises are undertaken by readers. On one occasion during the practice course, a senior barrister – I will disclose his name – Robert Newlinds SC – was providing feedback to the readers. After your Honour participated in a mock interlocutory exercise, Newlinds was rather frank in his critique of your Honour's submissions. Not long after this exercise, your Honour went head to head with Robert in the commercial list, and your Honour emerged victorious. I'm told on good authority the seasoned barrister took the loss graciously, uttering words to the effect, "I'm glad you took on board the points I made. You've improved." I'm sure that's a true story.
Your Honour is revered for your impeccably calm but unwavering presentation of submissions, which proved highly effective in withstanding even the most Socratic lines of judicial questioning, including from the formidable Justice Rares, who you join on the Bench, leading colleagues to nickname you the Rares Whisperer.
When your Honour decided you had obtained enough local experience to apply for silk in New South Wales, there was an audible sigh of relief, both from the junior Bar, relieved they need no longer compete with your Honour for work, and relief from the Bench that you would now be leading the argument. At the Bar, you established yourself as a pre-eminent Counsel. Your Honour also acted as Arbitrator and Counsel appearing in international arbitrations in Hong Kong, Singapore, Australia and South Africa.
Human rights law has, of course, been a key focus and passion throughout your Honour's practice. In 2016, your Honour was appointed by the Australian Human Rights Commission to conduct an internal inquiry following complaints that the Commission had violated human rights and engaged in unlawful discrimination. You have been a fearless advocate for human rights and the rule of law. Your Honour's steadfast commitment to public interest work while at the same time advancing a celebrated commercial career is to be commended and an inspiration to every lawyer. We have heard from my learned friend Mr McHugh that your Honour has made significant contributions to the legal profession in this country.
I did want to mention a case last year in which your Honour appeared for the New South Wales Bar Association as Intervenor in the important matter of CPJ17 v the Minister for Immigration and Border Protection in this Court. The matter concerned whether a conflict arose between the Federal Court Rules and the Barristers' Conduct Rules, namely, whether a Barrister acting on a direct access brief was obliged to file a notice of acting in accordance with Federal Court Rule 4, subrule (3). The case had critical ramifications for Barristers across Australia undertaking direct briefing, usually on a pro bono basis, in migration matters.
Your Honour took on this matter with your learned junior, Dr Chordia, instructed by the Bar Association's policy lawyer, Elizabeth Pearson, and your Honour's submissions that rule 4, subrule (3), did not apply to Counsel in such circumstances were accepted by Justice Charlesworth, and your work on this matter earnt the appreciation and thanks of both the Court and the Bars across the country. A different result would have impeded the ability of barristers to act in these important matters on a pro bono basis, which are severely underfunded by the Commonwealth, which places pressure on this Court and the Federal Circuit Court.
Whatever the case, your Honour, you have been a diligent, fierce and first-class advocate who has enjoyed the respect of the Bench and the Bar. When your Honour's appointment was announced, the Attorney-General noted your assistance would provide the Court with additional resources to accommodate the expected increase in case load from increased enforcement actions by ASIC following the Banking Royal Commission. Over the weekend, it was announced the Federal Court's jurisdiction will be expanded to include corporate crime and financial-sector criminal misconduct. This will be important work which this Court is well-equipped to undertake, and there are few better qualified to undertake it than your Honour.
In concluding, your Honour has a profound respect for Nelson Mandela. A well-read version of Mandela's Long Walk to Freedom was on the bookshelf in your Honour's chambers. Your Honour would be familiar that Mandela once said, "A good head and good heart are always a formidable combination, but when you add to that a literate tongue or pen, then you have something very special." In your Honour's appointment, this Court and the community it serves are fortunate to be the beneficiaries of a special lawyer with all those characteristics. Your Honour's advocacy, humanity and decency has been powerful reminder for all who had the good fortune to cross your path that law is fundamentally a profession of service, a profession, in your Honour's words, of making a difference. Justice Stewart, on behalf of the Law Council and the Law Society of New South Wales, we look forward to the contribution you will make in coming years to this Court and to the administration of justice in this country. I congratulate and heartily wish you well. May it please the Court.
ALLSOP CJ: Thank you, Mr Moses. Justice Stewart.
STEWART J: Chief Justice, Justice Bell, President Bell, Judges, former Judges, former colleagues, friends and family, ladies and gentlemen, thank you all for coming today. You do this Court and me a great honour by doing so. Thank you.
I am grateful to you, Ms Supit, Mr McHugh, Mr Moses, for your kind and generous words and for the effort of your research and, of course, for your creative flair. Naturally, the usual disclaimers apply. I respond only to one of the stories, and that is the one of the leave application that you, Mr McHugh, spoke of, and I can only say I'm not sure about that.
I begin by also acknowledging the traditional custodians of the land on which we meet, and I also acknowledge the traditional custodians of the land on which I grew up, the San or Bushmen people, who inhabited that area for tens of thousands of years before it was then settled by others.
One of my themes – one of two themes – today is belonging. To illustrate it, I quote from the opening paragraph of a famous South African novel:
There is a lovely road that runs from Ixopo into the hills. These hills are grass-covered and rolling, and they are lovely beyond any singing of it. The road climbs seven miles into them, to Carisbrooke; and from there, if there is no mist, you look down on one of the fairest valleys of Africa. About you there is grass and bracken and you may hear the forlorn crying of the Titihoya, one of the birds of the veld. Below you is the valley of the Umzimkulu, on its journey from the Drakensberg to the sea; and beyond and behind the river, great hill after great hill; and beyond and behind them, the mountains of Ingeli and East Griqualand.
The quote describes the countryside very near where I grew up and names one of the rivers in which I most loved to kayak and the mountain range in which I most often hiked and climbed. It is a profoundly beautiful place. I was extraordinarily lucky to grow up there. How I came to leave there and to be here is a story too complicated to explore today. I will nevertheless touch on aspects of that story and in order to do so I introduce my second theme: community. In the words of an isiZulu phrase: Umuntu ngumuntu ngabantu. A person is a person through other people. For my purposes, it means that we live our lives among and through other people as others live their lives with and through us. It recognises our common humanity and the responsibility we owe each other.
In that regard, I acknowledge that I was born into privileged circumstances. I was born white, male, able-bodied, cisgendered and heterosexual to parents who had themselves been born into similar circumstances of privilege and their parents before them. I did not suffer the discrimination, inequality, marginalisation and disadvantage that people of colour, women, people with disabilities and LGBTQI + people faced and still face. I recognise that just as I had advantages, there were others who were disadvantaged. That recognition, in part, informs the responsibility that I have to others.
From our wonderful, intelligent and modern parents, Iona and Greg, I of course learnt so much. I pay tribute to their industry, their demonstration by the way that they lived, that through hard work and application one can make the most of one's circumstances and make opportunities for a fulfilling life. By their engagement with the world, their energy and enthusiasm and their scientific scepticism and critical thought they set an example of critical public service.
I loved my life at the Durban Bar. I did, as you have heard, a wide variety of work. Perhaps the most rewarding was the public interest work. It was very special to live and to practice law under a justiciable bill of rights where the exercise of public power is set within universally adopted value-boundaries, including values of equality and human dignity, and not only the executive but also the legislature has freedom only within those limits; where the tyranny of the majority is confined to history.
You have heard something of the circumstances of us leaving South Africa and coming to Sydney. I do not wish to dwell on those, but I can say that it is the hardest thing that I have ever done; uprooting a busy, personal life and professional practice and starting again in another country. The year before the move, Liydsay and I did what has come to be called in South Africa an LSD trip; look, see, decide. I made contact with Andrew Bell, now President of the Court of Appeal, whom, as you have heard, I knew from Oxford. His very clever wife, Jo Bird, and I had been in the same BCL class. Andrew thoughtfully arranged for me to meet David Ipp who honours me in being here today. Some decades earlier, David had given up a silk's practice in South Africa and commenced afresh in Australia and as you know, became a towering judge in Western Australia and then in New South Wales. David and I met in the garden of Andrew and Jo's home.
Contrary to my expectation, David did not ask me anything about the nature of my practice and how I thought that I might attract briefs in Sydney. He asked me about my wife, my marriage and whether it was our joint and equal resolve to change countries. He told me about how terribly hard it was likely to be and that unless we were united in the effort, we might fail. David has been quoted as describing the experience of appearing as a recent immigrant in an Australian court as being:
Like a blind man floundering around in a room full of traps.
It was the same for me. Amongst other things, I struggled with the language and the cultural references. For example, in an early trial in the Local Court, I was cross-examining someone who referred to a whipper snipper. "A what?" I asked. "A whipper snipper" he replied. I asked him again and again he gave the same answer. Finally, taking pity on me, the Magistrate explained what a whipper snipper is, what I had grown up to know as a weed eater.
In another case, I challenged a witness' version that a particular person could not readily have been called as a witness in the case because he was "in Silverwater". After first establishing from the witness that that was no more than an hour away I asked, facetiously:
So you're saying that it is not possible to travel from Silverwater?
Not appreciating of course that the reference was to a jail.
On another occasion – I had not been here long and I was struggling with a number of things including how expensive things are in Sydney and how weak my South African currency was and with how to get our remaining assets through South African exchange controls – I appeared in an urgent matter in this Court before Justice Rares. I was seeking to defend the arrest of a vessel on behalf of my client. I explained to his Honour why the arrest was justified. His Honour was not happy and said this – and I'm quoting from the transcript which I have kept all these years:
If you are wrong, you will have to pay some damages. At the moment, the evidence I have before me is you have no assets at all and certainly none in the jurisdiction and you are a foreigner.
For a fleeting moment, I really thought that he was talking about me and not my client. In that moment, I was devastated and adrift in a sea of uncertainty. I did not feel like I belonged here. I am now honoured to be a judicial colleague of Justice Rares. He and my other new colleagues have been very welcoming and generous in assisting me as I settle in. I thank you all.
About 10 years before we came to Sydney, my father's youngest brother, Robbie, and his family moved here from Cape Town. Their family has been an extraordinary support to us. The same is true of my cousin on my mother's side, Jinty, and her family who moved here at much the same time as we did. We cannot thank the Stewarts and the Ainsworths enough.
On that LSD trip that I mentioned, Robbie introduced me to Mark Williams SC, now Judge of the District Court. Robbie had known Mark from the Manly Surf Club where they were both members. Andrew Bell and Mark Williams put together a list of the top 10 floors to which they thought I should apply for a space when I arrived a year later. Several floors did not respond to my inquiry. Several others said sorry but we are full. Justin Gleeson SC tried hard to find space for me at Banco. John Robson SC, now Judge of the Land and Environment Court, interviewed me by telephone and found space for me on 12 Wentworth Selborne.
It was essentially an electrical services cupboard behind the photocopier that I shared with another reader. I moved there from my spacious silk's chambers in Durban that looked across the busy harbour to the container terminal. I am very grateful to the members of the 12th floor for accommodating me and assisting me in my first four years in Sydney and in particular to James Renwick SC for being my nominal tutor and generously opening doors for me.
I should mention that in the year before we moved to Sydney I made another trip here to a conference. There, I was fortunate enough to meet Jane Needham SC and, as you have heard, Michael McHugh SC. They have both generously assisted me ever since. It was Jane who suggested to Gail Furness SC that I might be the right person to work with her in her role as Senior Counsel assisting the Child Sex Abuse Royal Commission. So it was that I came to work with Gail at the Commission over a period of about four years and to learn so much from her. I pay tribute to her extraordinary work that contributed to making that Royal Commission such a societal changing success.
It was at New Chambers that I first started to really feel like I belonged at the Sydney Bar. Perhaps it was because it was a new floor and I was, in effect, a founding member, or perhaps because by then enough time had passed. In any event, I am particularly grateful for the manner in which I was made to feel welcome and very soon part of the fabric of the new floor. David Jackson QC was our first Head of Chambers. Liz Cheeseman SC and Tom Thawley SC, now also one of my colleagues on the Court, were instrumental in getting me onto the floor, as was Greg Nell SC. As another shipping specialist, Greg has been my opponent more often than anyone else in the last eight years and it has always been a privilege. I acknowledge too Hayley Bennett, my immediate neighbour in chambers, for her friendship and support and just down the corridor of course was Arthur Moses SC whose visionary and tireless leadership of the profession is unsurpassed.
It was at about this time that I also started to feel that I belonged in Australia. When we first arrived, the eucalyptus trees, which are aliens in South Africa and the source of environmental harm there, had been eyesores, but over time in Australia I came to appreciate their beauty and their majesty. The raucous cockatoos and laughing kookaburras had been an affront, but I came to love their sounds. I belonged.
The Maritime Law community has been a source of great friendship and support and, importantly, work. It may be unique for the passion and interest that its members have for their subject and for the respect, civility and collegiality they show each other. The Solicitors who first took the risk of briefing me in Australia are from this community. They are here today. I thank you so much for taking that risk. You know who you are. A number of close friends of Lyndsay's and mine who are not lawyers have also honoured me in coming today. Thank you.
I have been assisted by a number of exceptional clerks: Bob Rymer and Jay Coutinho at the 12th Floor, Ian Belshaw and Michael Wilcox at New Chambers, and the ground-breaking Tammy Young of Young's List in Melbourne. I thank each of you.
My partner of nearly 30 years, the indefatigable Lyndsay Brown, has been with me every step of this journey. Her extraordinary energy, passion, tenacity, empathy and straight out directness have brought us through so much. I owe everything to her. Our twins, Stirling and Olivia, continue to be the principal source of joy in our lives. I am so proud of their courage, their engagement with their world, their intelligence and sense of humour. Liv and Stirlo, you are remarkable young people and I love you very much.
And so it is that I live my life among and through other people and, in turn, others live their lives with and through me. This is my community and it is how I come to belong. Thank you.
ALLSOP CJ: The Court will now adjourn.