Farewell sitting of the Full Court for the Honourable Chief Justice Allsop AC
Perth, Western Australia
9.15 AM, Tuesday, 14 March 2023
THE HONOURABLE JAMES ALLSOP, Chief Justice
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE COLVIN
THE HONOURABLE JUSTICE JACKSON
THE HONOURABLE JUSTICE McELWAINE
THE HONOURABLE JUSTICE FEUTRILL
ALLSOP CJ: Welcome, again, to everyone – to this sitting of the Court. It is not a ceremonial sitting of the Court to mark my retirement from judicial office, though I am retiring, and there will be a ceremonial sitting in Sydney later this month. I could not finish, however, without properly and publicly thanking the profession, the Chief Justice and Justices of the Supreme Court, and my present and former colleagues for all they have done in the presence of the local profession.
I acknowledge my former colleagues, who are sitting with us today on the bench. It is our privilege and great pleasure to have them here. Former Chief Justice French and former Justice Lee were my colleagues for seven years – and Justice Nicholson. I first met Chief Justice French in Perth in a very pointless argument about interrogatories, in which he was waiving the American Flange decision [(1965) NSWR 193] at me. I was the author of the pointlessness, but we became firm friends and have remained so ever since.
Justice Lee sent down fast deliveries, rising off a good length to me when I was at the Bar defending the interests of a number of very innocent banks before Justice Carr, who was my colleague later, until he got sick of me or my clients in the very same case, and sent us to the Supreme Court. I wish he had kept it. Former Justice Nicholson whom I had not encountered at the Bar – as well as former Justices Siopis, McKerracher and Barker, to whom I returned to work with in 2017, were great colleagues and made the most wonderful friends. They were kind, helpful and always forgiving of any oversight.
The only sadness today is the absence of the late John Gilmour, whose friendship, humour, intelligence and Celtic presence were a gift of life to all around him. Unfortunately, his widow, Marcia, could not be here either.
I acknowledge here today Mr Dharmananda, the President of the Bar, who will speak and Mr Golem, President of the Law Society, who will speak; the Solicitor-General of Western Australia; and Ms Thatcher from the State Solicitor’s Office. The Acting Chief Justice, Justice Kenneth Martin, and Judges of the Supreme Court, Justices Pritchard, Smith, Mitchell, Hill, Solomon, Lundberg and Seaward, Master Sanderson, and also Judge Ladhams from the Federal Circuit and Family Court of Australia, and also partners to former judges, Mrs Belinda Nicholson, Dr Sharon Delmege and Mrs Leith McKerracher, and my – I hope – many friends in the legal profession.
May I first thank the Profession. I begin with the Profession because of its importance to the administration of justice, a subject on which I have just touched with the Silks. There is a natural harmony and symmetry between the Profession of the State and its admitting Supreme Court. That is to be expected and appreciated. On the other hand, there is a certain asymmetry between a National Court and a State Profession. That asymmetry sometimes can inspire a slightly weaker sense of association or relationship. Perhaps that is natural. I first saw it in New South Wales.
A system of federation places upon and demands of its citizens a duality of consciousness, both State and Nation, but this is your Court, and we view you as our Profession, as it is the Court of the Profession of other states and territories and of the Australian Polity and People as a whole. The central place of an independent and learned profession in the administration of justice cannot be overlooked. Independence of the judiciary as a functioning third arm of government cannot be healthy and robust without an independent profession with an independent cast of mind – a cast of mind of duty and freedom of influence of power of others. These are not considerations to justify protection of the profession from scrutiny and criticism; they are considerations that give rise to the demands by the Courts of the Profession for lifelong learning, duties of unremitting honesty and service shaped by the undivided loyalty to the client, but within the framework of duty to the Court. To paraphrase the great Cardozo, not the morals of the marketplace and mere honesty alone, but the punctilio of an honour the most sensitive.
The power of the executive government, the power of wealth and privilege and the power of popular sentiment and opinion cannot be faced effectively by the Courts without an independent and learned profession to stock its numbers and to assist in its deliberations by fearless advocacy. Since I became a judge in 2001, I have always received and seen the Court to receive the highest standards of assistance from the profession in this State. For this I wish to express my gratitude and the gratitude of the Court to the Profession of this State. It holds a particular place in my professional affections.
May I turn to the Supreme Court. I would first like to thank Chief Justice Quinlan and all the judges of the Court of Appeal and the Supreme Court for their friendship, collegiality and cooperation in my time as Chief Justice, and I extend that to Chief Justice Martin, who was Chief Justice when I began in 2013. I very much appreciate it. The overlapping political and social organisation of a federated nation requires the difference in unity, local and national, in an integrated judicial system be reconciled and worked through in a daily process of mutual respect, friendship, collegiality and a proper rejection of institutional hubris drawn from the essential humility we must display. That essential humility is demanded not least by the recognition of the talent of others. Whilst regular meetings of the Council of Chief Justices of Australia and New Zealand are an important feature in this regard, they are buttressed by the respectful, harmonious and collegiate relationship amongst the judges for the States, Territories and the Federal Courts. Such, of course, should be assumed as natural, but that does not mean it should not be remarked upon and be the subject of expressed thanks on appropriate occasions such as this.
This does not merely reflect good professional manners amongst colleagues. This is a feature – indeed, a demand – of the Constitutional reality of an integrated Federal – that is, State and Commonwealth – judiciary. It is the duty of judges of all polities to give unsparing respect and support to each other. This was a vision of the first Chief Justice of the Court, Sir Nigel Bowen, whose intellect, calm patience, grace and tact stamped the Court with a character it has not lost – one of politeness and intellectual force and practicality, taking its place in an integrated national judicial system with strong and collegiate Supreme Courts, which he much admired, having been part of one himself.
That Sir Nigel’s vision has come to pass after early tribulations is a tribute to the same qualities of patience, grace and tact of later Chief Justices, State and Federal, including Chief Justices Martin and Quinlan, for which I thank them today personally and publicly.
May I turn to my colleagues and former colleagues.
One of the great gifts and privileges of the positions of Judge and Chief Justice of the Court has been to work closely with remarkable people. Here today are some of those remarkable people, sitting around me. The contributions to the law and the life of this country of my former colleagues who sit here with us today has been deep and lasting. They and this Registry, together with John Gilmour and John Toohey, brought the depth of understanding of the importance of national law to this country, to this Registry and to this State.
They did so by technique and style to mark the Court out with intellectual power and rigour and politeness. This ensured that this Court was and is both a challenge and a pleasure in which to appear. This character of the Court could not have been established or maintained without those who are sitting with me here today. My present – for another 24 days – colleagues, together with the former justices, Barker, McKerracher, Siopis and Gilmour, who were with me while I was Chief Justice, have given me so much support and guidance that I cannot properly express my gratitude.
The wisdom, decency and generosity each brought to the Court was on display whenever I needed help, even if I did not appreciate at the time that I needed help. As a parent must take great care not to show favouritism to one child over another, so a Chief Justice cannot have favourite registries. All I will say is that I have never felt other than the greatest enjoyment possible in working with the Judges of this Registry. All of you, former and present, have been peerless Judges and warm friends, for which I am very grateful.
The almost 22 years that the Commonwealth and the State of New South Wales have given me as a Judge have provided me with the opportunity to think about and experience law and justice in a way and from a mode of attention that one does not experience quite so much in practice. That is, that law is justice, that law is to be experienced not only by reducing ideas through abstract taxonomical arrangement to rules and principals, but also by recognising the human realities of experience within the law, and that law is concerned primarily with power and its limits, and the protection of the individual and of a justice democratic society.
Power is not abstract. It is real and human. It affects, sometimes destroys, people, so the principles concerning it must include a demand on those who wield it to recognise the human consequences and effect of the exercise of the power they wield. That is to be reworked into a legal principle, but to exclude it as a legally related proposition is to court injustice. That law is or can be seen as justice and not abstractedly separate from it in some reductionist-defined, taxonomical way, comes from the recognition of deep human values that reside within the common law and equity, in which the Constitution is embedded.
Such values are derived from human exchange and experience, from the rejection of unfairness, from the dignity of the individual and the group, from the urge in humans for the requisite degree of certainty for the context and purpose at hand and from human decency born of basal kindness and mercy. One lives these ideas and the physical reality of their experience in the daily work of this Court: the migration, the Native Title, the bankruptcy, employment and industrial relations, indeed, even the commercial and regulatory work and constitutional problems and statutory construction, to a greater or lesser degree in all the Court’s work. This is so because these deep human values and their sources comprise the human tissue of the law which envelopes, saturates and binds abstract ideas, rules and principles otherwise expressed in bald text with all the power of text but also with all the limitations of text.
Courts are places where catastrophic experiences take place for litigants every day. That is the nature of the potential harm bound in the results of every case. This potential catastrophe is, in itself, inextricably bound with the humiliation of powerlessness from being cast into the hands of others, cast into the hands of lawyers and Judges. The Judges of this Court and, may I say, the Judges and former Judges of this Registry, in particular, taught me these things for which I will be always grateful.
MR B. DHARMANANDA SC: May it please the Court. May I also acknowledge the traditional owners of the land on which we meet, the Whadjuk people, who form part of the Noongar Nation. I also pay my respects to the elders past, present and emerging.
On behalf of the WA Bar, it is my distinct privilege and honour to address the Court at this farewell sitting for the Honourable Chief Justice Allsop AC. Leaving aside his work in Dr Strangelove, one of Peter Sellers’ greatest performances was his role as Chance, the gardener in Being There, for which he was nominated for best actor. It is by chance I have the good fortune to speak on behalf of the WA Bar today to farewell the Chief Justice.
There was no chance but sheer deterministic ability that caused the Chief Justice to be appointed as the Chief Justice of the Federal Court of Australia some 10 years ago. As is well known, the Chief Justice won the University Medal in law in 1980 from the University of Sydney; was a sought after Barrister at the Sydney Bar, being one of the equity whisperers; served as a Judge of the Federal Court between 2001 and 2008; was President of the New South Wales Court of Appeal between 2008 and February 2019; and was appointed Chief Justice of this Court as of 1 March 2013. That is a formidable record of achievement and contribution to the administration of justice.
On 26 January 2023, your Honour was made a Companion of the Order of Australia for your eminent service to judiciary and the law, to organisational and technological reform, to legal education and insolvency law. Before then, in 2013, your Honour was made an Officer of the Order of Australia for your distinguished service to the judiciary and the law. Time and my inability to summarise thematically the wide ranging extent of your Honour’s contribution does not permit me to address the whole of your Honour’s extraordinary contribution in any meaningful or fulsome way. May I, instead, highlight a few points.
Your Honour has decided far too many important cases to identify a short list of them. May I merely pick a few favourites. In 2001, in Branir v Owston Nominees (No 2), in a tour de force, your Honour explained the nature of the appellant jurisdiction and, equally importantly, explained the nuanced approach that needed to be taken in determining when an informal contract is made.
In 2003, in DSE Holdings v InterTan, your Honour explained when legal professional privilege might be lost, if legal advice informed a party’s state of mind, if that state of mind was in issue. That case is cited time and again for its erudite statement of principle. In 2018, in Jones v Matrix; Re Killarnee, your Honour presaged the High Court’s 2019 decision in Carter Holt v The Commonwealth in holding that a trustee’s indemnity right falls within the property of the company for the purpose of the statutory order or priority of payment. In 2015, in Paciocco v ANZ your Honour dealt succinctly with the obligation of good faith, identifying the legal principle but on a broader canvas that informs that obligation.
Your Honour’s approach to the obligation of good faith is an example of your Honour’s approach, more generally, to the law. In your 2019 Kenneth Sutton Lecture on Statutes and Equity, you explain that equity is deeply conceptualised. You refer to Benjamin Cardozo’s The Paradoxes of Legal Science where Cardozo said that:
…a fruitful parent of injustice is the journey of concepts.
You explained that equity shuns taxonomy and, instead, seeks to deal pragmatically and emphatically to address human relationships. You suggested that statutes should be interpreted in context, applying the technique that rejects simple bright lines where fairness and decency of behaviour are being called for. Drawing from Iain McGilchrist’s work in The Master and His Emissary, your Honour has explained, more than once, that:
Law is often nonlinear because it is necessarily both relationship and experiential and the neuroscience tells us that there is the need to balance and integrate the explicit and the implicit, the part and the whole. Law is not all about taxonomy, systems, rules and definition. The human context matters.
In a recent series of lectures on creativity and the brain, Professor Indre Viskontas has made vivid the self-delusion of the left brain. It does not always know why the right brain does what it does.
But it also doesn’t know that it doesn’t know and it retains the illusion of control. It makes up a reason for an action even when it does not know the whole story.
Your Honour has emphasised many times why a left-sided approach to legal problems can lead into self-delusional error. Your Honour has always sought to integrate rules with principle. Your Honour’s skill, deep knowledge and intuitive approach will be much missed, if I may say so, with the greatest of respect. On 13 May 2013, there was a ceremonial sitting in Perth in this courtroom to welcome your Honour as Chief Justice. I recall, as if it were yesterday, you gave an anecdote referring to the time when you were an associate to Sir Nigel Bowen. You referred to a test case before the then Chief Justice, Sir Nigel Bowen, Justices Brennan and Deane in a patent case that followed. You said:
One could feel the mental power encased and folded in the polite exchanges. It taught me the value of civilised discourse as the marker of a good court as part of the proper exercise of judicial power. That is, that civility is not an affectation, but a proper instance of the exercise of that power.
Your Honour has been the Chief Justice for a decade of a Court that now has more than 50 Judges. Long may the reputation of the Court as a place of civilised discourse continue. Hopefully, your Honour’s approach reflecting the long tradition of the Court has been permanently inculcated into the fabric of the Court. The work of the Court is vast. Your Honour’s contribution in explaining the ambit of Federal jurisdiction has assisted in making the Court a national court of stature, not just a Court that interprets Commonwealth law. There is a small parallel with the work that the Honourable Robert French AC did in the 1980s in explaining the black hole of the Federal Court’s accrued jurisdiction, using that now unfashionable and inappropriate term.
Last, may I mention Minister for Environment v Sharma where, in 2022, the Full Court, in which your Honour presided, held that the Minister did not owe a duty of care to children in Australia to consider environmental conditions when approving an extension of a coal mine. The Court decided the case by applying established principle. The case was characterised in the press as:
…undoing 20 years of climate litigation progress in Australia.
There is little doubt you would have met that misplaced criticism with dignity, not despair. It is my privilege to say a few words on behalf of the WA Bar to farewell your Honour. May your work continue in other ways. May it please the Court.
ALLSOP CJ: Thank you, Mr Dharmananda. Mr Golem, President of the Law Society.
MR A. GOLEM: May it please the Court. The Law Society joins in acknowledging the traditional owners of the land on which we meet, the Whadjuk people of the Noongar Nation. On the Society’s behalf, I pay my respects to their elders, past and present. It is a privilege to appear today on behalf of the Society at this special sitting to farewell the Honourable Chief Justice, James Allsop AC. May I also take the opportunity to welcome and congratulate our new silks on their eminent appointments as Senior Counsel in the legal profession. Their appointment is recognition of their demonstrated distinction in the practice of the law. Each of the appointees have proven their legal abilities and integrity over a long career.
Over this past year there have been many occasions to celebrate both the welcoming of new Judges as well as to celebrate and acknowledge farewells and retirements. Each of these occasions have become extremely important, and for those at the bar table they are a special privilege. We are, again, privileged on this occasion to mark your Honour’s farewell from the position of Chief Justice of the Federal Court of Australia, a role, as we’ve heard this morning, you have occupied for almost 10 years. Your Honour has enjoyed a long and illustrious career. A short synopsis does not do justice to your Honour’s lifetime of achievements, but let me say something briefly.
From 1981 to 2001 your Honour practised at the Bar in New South Wales and elsewhere in Australia. Your Honour was then appointed Senior Counsel in New South Wales in 1994 and Queen’s Counsel in Western Australia in 1998. From May 2001 to June 2088, your Honour served as a Judge of the Federal Court of Australia undertaking the roles of trial judge and appellate judge on a full range of Federal Court work. From June 2008 to February 2013, your Honour was President of the New South Wales Court of Appeal. Your Honour was appointed Chief Justice of this Court in March 2013. It was also the same year that your Honour was appointed as an Officer of the Order of Australia.
In this year’s Australia Day Honours List, as we’ve heard earlier this morning, you were appointed a Companion of the Order of Australia. So it’s an interesting fact, your Honour, that your appointment as Chief Justice of this Federal Court as well as your retirement from this eminent position have coincided with both of your Honour’s respective appointments to the Honours List. Upon the announcement of the Honours List, the Governor-General, David Hurley, said this: “This year’s recipients have had a significant impact on the local, national and international level and are quite simply inspiring. They go above and beyond. They are from all over the country. They contribute every day in every way imaginable. These are the people who see us through the good times and, also, the bad. They are the first to show up and the last to leave”.
The Governor-General went on to say, “They are almost always humble to a fault, but I urge the recipients for today at least to put aside their humility. It’s important that they know how much they are valued”. As we have the privilege to bid farewell today I would like to reiterate these wise words and reflect on your Honour’s career with deep respect and gratitude for all the good work that your Honour has done in your service to society. Throughout your Honour’s tenure as a Chief Justice of the Federal Court, a role that carries enormous workload both in terms of judicial and administrative responsibilities, your Honour has shown great leadership, good judgment and great empathy.
Importantly, your Honour has epitomised the Court’s integrity and, also have always shown great leadership in reminding us of the importance of remembering the human experience both of litigants and lawyers. As your Honour reminded us in an address to the Bar Association last year where your Honour said this: “The success of technology and its adaptation in the courtroom is to be measured by the experiences of the people involved particularly those who rely on the Court and those whose liberties are at risk. It is the lived experience of those people which requires the greatest attention”.
Ten years ago the Federal Court of Australia’s ceremonial sittings welcomed your Honour, and you said the following words which resonate with us today: “When this Court was established, relations with state and courts in a number of states was, to put it mildly, less than where it should be. That perhaps was understandable in human terms, but if one appreciates the importance of Chapter III of the Constitution and section 77, in particular, one realises the importance, indeed, the Constitutional importance of good, cooperative and collegiate arrangements, relationships between Courts of the different policies in the one nation. We are all part of one integrated and federated legal system”.
Your Honour has demonstrated great leadership, humanity and strengthened the relationship between the Courts among the different jurisdictions and the legal profession, as a whole, is indebted to your Honour’s hard work and commitment to the administration of justice. We are truly privileged to attend today’s sitting 10 years on and to extend our collegiality and our deepest respects to your Honour on this important occasion. On behalf of the Law Society, I am delighted to congratulate your Honour on an extraordinary judicial career and the Society and our members wish your Honour and your family all the very best for the next steps that you take together. May it please the Court.
ALLSOP CJ: Thank you, Mr Golem. Justice Banks-Smith.
BANKS-SMITH J: Chief Justice, Judges of this Court, Judges of the Court of Appeal and of the Supreme Court, Judges of other Courts and Tribunals, members of the profession and to all of you present here today, it is an honour to have the opportunity on behalf of the Western Australian Judges of this Court, both former and present, to acknowledge your Honour’s contribution as the fourth Chief Justice of the Federal Court of Australia.
Time does not permit a comprehensive review of your Honour’s 22 years in judicial service to the Australian community. The fact that your Honour has served as both the President of the New South Wales Court of Appeal and as Chief Justice of this Court speaks for itself. But I do want to acknowledge briefly your Honour’s contribution to the jurisprudence of this country and your role in leading a cohesive Court that operates across an extraordinary geographic span.
Your Honour’s interest in the law is broad and deep. You have continued to sit both at appellate level and first instance. You have promoted and enhanced the reputation of this Court as a Commercial Court. In particular, you have viewed ordered disputed resolution processes as underpinning efficient commerce. Your Honour discussed the importance of this in Commondate Marine v Pan Australia Shipping in the context of elections between arbitration and litigation. It is also apparent from your Honour’s analysis of the content of a contractual requirement to negotiate in good faith in United Group Rail Services and Rail Corporation of New South Wales.
Your academic endeavour and scholarship is perhaps most apparent in some of your decisions in specialised areas, such as arbitration, insurance and maritime law. For example, in Gordian Runoff Limited v Westport, when on the New South Wales Court of Appeal, you examined closely the nature of an error of law by an arbitrator and the nature or arbitral reasons. Your Honour’s interest in maritime law stems from a deep understanding of the significance of international maritime transport, a method of transport that carries the dominant proportion of world trade. Such trade cannot operate without a largely harmonious international system that recognises priorities and security interests.
In this context, in your lead judgment in The Ship Sam Hawk v Reiter Petroleum you rejected an argument that a lien in rem over bunkers, or fuel supply, was recognised under Australian Maritime Law. In El Greco (Australia) v Mediterranean Shipping Co you comprehensively addressed the method of counting the number of units or packages in a shipping container for the purpose of limited liability for lost cargo. Your Honour’s examination was subsequently discussed by the United Kingdom Court of Appeal on a number of occasions.
But it is not in the outcome of such cases that your Honour’s contribution is to be recognised, but in the record your reasons provide of the history of the maritime lien, time charter, bills of lading and the nature of international maritime rights.
Your Honour’s intellectual leadership has also extended deeply into the human rights work of this Court. Your Honour’s reasons in Hands v Minister for Immigration and Border Protection are cited regularly by Counsel and the Court in highlighting the need for the proper consideration of what harm might befall a non-citizen if they are deported from Australia. Your Honour emphasised that where decisions that might have devastating consequences for people are being made by those in power, there must be a real consideration of the circumstances. In your words:
Confronting what is being done to people.
Many years previously, in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs, your Honour did just that where you considered in detail the Convention Relating to the Status of Refugees done at Geneva in 1951 in seeking to ascertain how Australia’s changing protection obligations to Hazara from Afghanistan were to be assessed in the face of escalating war in that country.
Your capacity for empathy was also apparent in some of your decisions on the New South Wales Court of Criminal Appeal. For example, your cris de coeur, if I might respectfully use that expression, over mandatory minimum sentences for people smugglers in Karim v The Queen and Magaming v The Queen. Your Honour observed that persons affected by such mandatory minimum sentences were often uneducated, illiterate and indigent, hailing from communities marked by disadvantage. They were deckhands with no real involvement in the commercial or organisational level of smuggling.
I know that some of these decisions are the ones that your Honour will reflect upon fondly over the years to come.
Your Honour has also shaped the internal workings of the Court by the significant introduction of national practice areas, focused case management and specialised lists, including in the areas of insurance, corporations and bankruptcy. Such an approach has encouraged collaborative involvement in management of the Court’s work by all Judges and Registrars.
And, finally, I want to say something about your Honour’s stewardship and the privilege it has been to serve on your Court. Your Honour has always been accessible to the Judges of the Perth Registry. Indeed, you had given the impression of having considerable affection for Western Australia. We may have sometimes assumed we are the favourite children. You have visited regularly. During the COVID pandemic, when we were a somewhat more isolated outpost than usual, your Honour made a concerted effort to keep in touch with us by phone.
This is a collegiate Court. On the rare occasions when we are all together, there is palpable friendship, camaraderie and mutual support. Your Honour has sought to provide pastoral care and taken that role seriously. Your Judges speak highly of you. You have earned and enjoy the respect of all. That is no mean feat as we are not known for being shrinking violets.
And during it all, your Honour has steadily reminded us of the effect of our exercise of power on people, groups and society more generally, and that it is essential to reflect always on the human reality of what we do. On a lighter note, we have enjoyed your company and observing the delight you take from what others might assume to be mundane; in particular, your interest in all things maritime.
I have the special pleasure of driving up our beautiful coast and past the Fremantle Port each day, seeing which cargo ships are in town, and the bustling loading and unloading of cars and containers. Whilst far from being a ship spotter, I reluctantly concede that I have identified a few favourites over the years. Some have beautiful paint jobs. Some have aspirational names.
The day always starts well if overnight arrivals have included the Positive Leader, the Positive Challenger, the Victorious Ace or the Brilliant Ace.
Chief Justice, you have been our Positive Leader and our Brilliant Ace. We wish you, Sandy and your family well as you embark on this next stage.
I know that I speak for all of the Perth Judges in thanking your Honour for your enormous contribution to this Court and to the administration of justice in Australia. We will continue to reflect on that contribution every day as we strive to deploy power in accordance with your example, with humility and humanity.
ALLSOP CJ: Thank you, Justice Banks-Smith. Thank you all for coming. I very much appreciate it. Please adjourn the Court.