Ceremonial Sitting of the Full Court
To welcome the Honourable Chief Justice Allsop AO
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE JESSUP
THE HONOURABLE JUSTICE GORDON
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE DODDS-STREETON
THE HONOURABLE JUSTICE MURPHY
9.30 AM, MONDAY, 6 MAY 2013
ALLSOP CJ: Ms McLeod, do you move?
MS F. McLEOD SC: May it please the court. I appear on behalf of the Victorian Bar to welcome your Honour, Chief Justice Allsop, on this occasion on your Honour’s first sitting in Melbourne as Chief Justice. At your swearing in as President of the New South Wales Court of Appeal in 2008, your Honour remarked that you had expected your speech in 2001 upon being sworn in as a judge of this court to be your last such speech. Happily for us, this was not the case. Your Honour was welcomed in Brisbane last week and will be welcomed in Perth next week. All part of the panoply of the Full Court’s May caravan around Australia hearing appeals, with the ceremonial sitting welcomes a sort of modern day judicial royal progress.
Last week at your Honour’s Brisbane welcome, the President of the Bar Association of Queensland gave your Honour a maroon rugby jumper. There is, alas, no Victorian equivalent of the Rugby League’s State of Origin contest between Queensland and New South Wales and no equivalent Victorian football jumper. So I come offering your Honour an inducement, no doubt the last time you might be tempted to take one up from the bar to the bench. As you’ve spent time in Melbourne, you might discover it is fitting to take up a Melbourne team. One that is both exceedingly popular and free from all controversy – like your Honour’s appointment – and so I offer up for your consideration my own team of Collingwood.
Your Honour did, on an earlier visit to Melbourne, meet with members of the Bar Council and we very much appreciate your engagement with the profession. At your Honour’s March swearing in as Chief Justice you spoke of this court’s development of a body of jurisprudence in administrative law, in immigration and refugee law as of profound importance and having helped mark out and illuminate Australia’s position in the community of nations.
However, your Honour has not always had such an exalted view of administrative law. Your Honour has confessed of seeing administrative law in an introductory law school course as “time-worn, barely coherent rules to be memorised, boring, archaic and esoteric”. You abandoned law, finished your Arts degree and taught high school English and history for a time, just long enough to realise that “I may have been a tad hasty in rejecting a career in law out of hand”. Upon your return to law studies, your Honour found administrative law no more engaging, and in your practice at the Bar you said, “Although it was a necessity, it was borne diligently and dutifully, if not enthusiastically. It was only on becoming a judge that I began to fully appreciate what the subject was about and what shaped and formed the approach to its content. “Power,” you said, “specifically, the control of power and how people should be treated in the exercise of power in a just and decent society.”
But I’ve leapt ahead. Let me return to the brief biographical sketch. Your Honour was awarded a first class honours law degree at the University of Sydney and you won the university medal in law. You served as an associate to the Chief Judge of the court, as was then the title, Sir Nigel Bowen. You read with Roger Giles, later a New South Wales Judge of Appeal who retired in December 2011. Your Honour practised at the New South Wales Bar for 20 years, of those more than six as silk. You had a number of readers and a number of your readers came to you from having served as associates to justices of the High Court. Your Honour’s last reader, Dr John Griffiths, had been an academic, a fellow of Emmanuel College, Cambridge. Your Honour took silk during his reading and he finished his reading with Alan Robertson. Justices Griffiths and Robertson both now serve with your Honour on this court.
Your Honour was sworn in as a judge of this court on 7 May 2001, almost exactly 12 years ago. At the Bar, your Honour earned the nickname “Whispering Jim”, equity being famously the whispering jurisdiction. Your Honour is said to have been almost as inaudible as the late Peter Hely QC, later a judge of this court. The Commonwealth Solicitor joked at your Honour’s 2001 swearing in and welcome that the most likely theory offered for your Honour’s predilection for dim lighting is that the dim lighting is to prevent those who have difficulty in hearing your Honour’s advice from cheating and obtaining it by lip reading.
On this court, you earned the nickname “The Admiral” for your Honour’s pioneering work in that jurisdiction. Your Honour became the convener of the National Panel of Maritime Judges and is said to have advanced the profile of this court over that of the state Supreme Courts that have concurrent admiralty jurisdiction. After seven years distinguished service as a judge of this court, your Honour was poached by New South Wales to be President of the Court of Appeal. At your Honour’s farewell from that court in February, New South Wales Chief Justice Bathurst spoke eloquently of your Honour’s extraordinary contributions as President and I quote just one sentence: “There is no doubt that the personal contact and intellectual engagement you maintain with each Judge of Appeal has immeasurably contributed to the high morale and productive collegiality which the court enjoys.”
Others have described that court under your Honour’s presidency as a court of great courtesy and civility and of clarity in its judgments. While I’m sure your Honour will continue to do so diligently and dutifully, I trust we can support you in doing so here in Victoria enthusiastically. On behalf of the Victorian Bar, I welcome your Honour to Melbourne and wish your Honour long distinguished and satisfying service as Chief Justice of this Honourable Court. May it please the court.
ALLSOP CJ: Mr Tang.
MR R. TANG: May it please the court. I appear on behalf of the Law Institute of Victoria and the solicitors of this state, to congratulate and welcome your Honour Chief Justice Allsop on this occasion of your Honour’s first sitting in Melbourne as Chief Justice. Your Honour served articles at Freehill Hollingdale and Page in Sydney, what is now Herbert Smith Freehills. You were articled to David Gonski and you also worked with another partner, the late Kim Santow. They were a formidable pair of solicitor mentors. Kim Santow, after the best part of 30 years at Freehills, was appointed to the New South Wales Supreme Court, only the second solicitor appointed to that court. He served first in the equity division and then on the Court of Appeal, retiring at the end of 2007, almost at the end of Justice Mason’s presidency. David Gonski later left Freehills, moving into the wider business world and among other things, he’s well known for his work as the Chair of the Expert Advisory Panel that produced the recent report on school funding, bearing his name.
After some months at Freehills, your Honour was appointed Associate to Sir Nigel Bowen. Your Honour served nine months with Sir Nigel whom your Honour describes as having been a truly great judge and wonderful person. You then returned to Freehills but only for a few months before going to the Bar.
Your Honour’s instructing solicitors appreciated the pains your Honour took to listen to the client, to take the client’s concerns into account and to explain the issues in the language the client could understand. Your Honour also thoroughly involved your instructing solicitor in the conduct of the case, taking your instructor through submissions and closing arguments in chambers. In your Honour’s early years at the Bar, you tutored in equity and lectured in property at the University of Sydney Law School. You were for a number of years the Challis Lecturer in Bankruptcy. Your Honour has taught a graduate course in equity financing and has coordinated and taught graduate courses in maritime law and admiralty. The University of Sydney made your Honour an adjunct professor.
Your Honour’s dedication to teaching was such that, more than once, you left the pleasures of a Sydney summer to deliver a series of lectures in Swedish universities, in the depth of their winter. However, there have been some consolations. The Fall 2011 Meeting of the Maritime Law Associations of the United States, Canada and New Zealand, at which your Honour presented the paper was in Hawaii. I imagine the climate there was somewhat more agreeable. Your Honour was for some years a governor of the World Maritime University in Malmo, Sweden, and a Director of the Australian Maritime College in Launceston. Your Honour has also been heavily involved in judicial education in our region, particularly in China.
Your Honour was recognised in the Australia Day honours last January. You were made a Companion of the Order of Australia, for the distinguished service to the judiciary and the law, as judge, through reforms to equity and access and through contributions to the administration of marine law and legal education. Your Honour has also received international recognition. In 2011 you were made a Master of the Bench of the Middle Temple in London, an honorary bencher, and last March your Honour was elected to a law institute, although not the one I represent today. Rather, it was the American Law Institute. Judge Learned Hand, whom your Honour admires, was with Justice Benjamin Cardozo one of the early leaders of the American Law Institute from its establishment in 1923. Indeed, Hand is credited as a leader in the creation of the restatements of the law for which the ALI is best known.
There are 18 Australian members of the institute including from the High Court, retired Chief Justice Sir Anthony Mason, retired Justices Gummow and Kirby, Chief Justice French and Justice Keane and on this court, your Honour and Justice Middleton. At your Honour’s farewell from the New South Wales Court of Appeal and welcome as Chief Justice of this court, others have spoken of your immense contribution to justice and the jurisprudence in your Honour’s judgments over the course of your 12 years as a judge. Chief Justice Bathurst said, “Your passion for scholarship and high legal principle is equally balanced with great practicality and compassion for the individuals caught up in the legal system.”
On behalf of the Law Institute of Victoria and the solicitors of this state, I wish your Honour long, distinguished and satisfying service as Chief Justice and once again, a judge of this Honourable Court. May it please the court.
ALLSOP CJ: Justice Crennan, Chief Justice Bryant, Judges of Appeal, Judges of the Supreme Court and the Federal Circuit Court, colleagues and friends. Thank you, Ms McLeod and Mr Tang, for your kind remarks. Although it’s my natural instinct to be uncomfortable about being an apparent centre of attention such as this and thus being the cause of busy people taking themselves away from dealing with other people’s problems or their own lives, I appreciate the fact that this is an event for the court and for that reason it is important.
What is important also, I think, is not to be portentous on occasions such as this and that is made easy by the warmth and friendliness of the welcome and by the collegiality of my colleagues. In respect of my colleagues, I’ve been made to feel welcome by all the judges of the court and in Victoria in particular. I appreciate that very much. It transforms what, in the first month or so, seems to be an impossible task into a task that is merely very difficult.
I sat last Wednesday in a similar ceremony in Brisbane. Ms McLeod has given it away – I refused to tell my colleagues what happened last week. It was in fact evidence that was tendered on that occasion. As Ms McLeod said, it was a Queensland maroon State of Origin jersey. I considered rejecting the tender for a number of reasons, not least of which that it lacked Billy Slater’s number on it. I assume that the Victorian and New South Wales relationship in the national polity is sufficiently mature not to call for a similar offering. Further, because this is a Federal occasion, I do not propose to discuss last year’s grand final.
Much has changed since this court began its working life 36 years ago, for instance, this court building has been built. But importantly, Australia has become an influential and significant commercial centre of the Asia-Pacific region. Commerce is the life blood of the nation’s wellbeing and that is why commercial dispute resolution is so important to the nation. I spoke at my swearing in of the other aspects of this court’s jurisdiction of great importance. I mentioned the importance of commercial dispute resolution and I propose to do so again today, without in any way intending to detract from the other areas of importance that the court administers. The growth and importance of this work in the court and in this registry and in the Supreme Court is of vital significance. This registry is one of the largest commercial centres of the region and it is entitled to expect from its judicial branch of government the skill that is attuned to the needs of the community it serves.
One of the most significant changes, I think, since this establishment of the court, has been the change in relationship of the courts. When this court was established, relations with state courts in a number of states, was, to put it mildly, less than warmly congenial. That perhaps was understandable in human terms. But if one appreciates the importance of chapter 3 of the Constitution, section 77 in particular, one realises the importance, indeed constitutional importance, of good cooperative and collegiate arrangements and relationships between the courts of the different polities in the one nation. We are all part of one integrated, federated legal system.
I look forward to working in Melbourne on a regular basis to enjoy the benefits of the exceptional standard of advocacy one always finds in Melbourne and to enjoy the collegiality of my colleagues and friends that I have here. Thank you all for doing the court the honour of coming today. I appreciate it very much and I look forward to seeing you regularly when I return. The court will adjourn.