AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 16 Santos Place, 32 Turbot Street, Brisbane QLD 4000
PO Box 13038 George St Post Shop, Brisbane QLD 4003
T: 1800 AUSCRIPT (1800 287 274)         F:  1300 739 037
E: clientservices@auscript.com.au           W: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N 130251

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE COURT TO FAREWELL

THE HONOURABLE MICHAEL BLACK AC
CHIEF JUSTICE, FEDERAL COURT OF AUSTRALIA

BENCH:
THE HONOURABLE MICHAEL BLACK AC, CHIEF JUSTICE

THE HONOURABLE JUSTICE SPENDER
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE RYAN
THE HONOURABLE JUSTICE HIGGINS AO
THE HONOURABLE JUSTICE MOORE
THE HONOURABLE JUSTICE FINN
THE HONOURABLE JUSTICE SUNDBERG
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE MANSFIELD AM
THE HONOURABLE JUSTICE GOLDBERG AO
THE HONOURABLE JUSTICE EMMETT
THE HONOURABLE JUSTICE FINKELSTEIN
THE HONOURABLE JUSTICE GIUDICE
THE HONOURABLE JUSTICE DOWSETT
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE STONE
THE HONOURABLE JUSTICE DOWNES AM
THE HONOURABLE JUSTICE JACOBSON
THE HONOURABLE JUSTICE BENNETT AO
THE HONOURABLE JUSTICE LANDER
THE HONOURABLE JUSTICE SIOPIS
THE HONOURABLE JUSTICE EDMONDS
THE HONOURABLE JUSTICE GRAHAM
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES

THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE COWDROY OAM
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE JESSUP
THE HONOURABLE JUSTICE TRACEY RFD
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE GILMOUR
THE HONOURABLE JUSTICE GORDON
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE REEVES
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE BARKER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE KATZMANN

MELBOURNE

9.36 AM, FRIDAY, 19 MARCH 2010
____________

BLACK CJ:   Mr Attorney for the Commonwealth, do you move? 

HON R. McCLELLAND MP:   Yes, thank you Chief Justice.  May it please the Court.  It is my great honour to be here today to celebrate the career of the Honourable Michael Black AC, Chief Justice of the Federal Court of Australia.  In celebrating that career we pay tribute to 19 years of distinguished service that your Honour has given the Court and indeed the legal profession.  At the commencement of your appointment in 1991, the then Attorney-General, the Honourable Michael Duffy, who I might say I have endeavoured to emulate in my own career, has expressed every confidence that this Court would continue to grow and enjoy a high level of respect under your leadership.  I can now say with confidence, and I am sure those here will join with me, that your Honour has exceeded these expectations and indeed the presence of so many Judges from around Australia and indeed overseas is testament to that. 

The Court has grown considerably in the past 20 years.  It now has jurisdiction over almost every aspect of civil law and has deservedly an enviable national and international reputation.  Under your leadership Judges of the Federal Court have  
literally become disciples for the rule of law in our region, often giving up their annual leave to visit neighbouring countries.  The Court’s reputation is in no small part due to your Honour’s insistence on the appointment of the highest calibre of Judges who in your words must also be, as a prerequisite, decent people and I know you’re enormously proud of your colleagues and I must say I have greatly appreciated your assistance in developing the advisory panel on judicial appointments.  

Your Honour’s elevation to Chief Justice of this Court was quite remarkable for the fact that you came directly from the Bar.  Indeed that was testament to the high regard and esteem in which you were universally held at the time.  Not only did you bring to this Court the prerequisite legal and intellectual skills, a sharp legal mind and an impressive advocacy record, but also personal qualities befitting your new role.  I recently inquired of a former partner of mine who briefed you on a number of occasions, some indeed quite controversial cases, and he said that your quiet dignity gave a reasonableness to your client’s case that was as powerful as your legal arguments, but more than that he said that your gentlemanly assertiveness compelled even the most unreasonable of clients to see reason. 

I too must say I have experienced your tempered assertiveness in our regular phone calls and you have indeed been a powerful advocate for the Court but I have willingly accepted your advocacy because you have always had an overriding desire to see the Court serve the community and the cause of justice and in that context you’ve driven many reforms;  the fast‑track list and the docket system and especially dockets indeed where panels of Judges with relevant experience are allocated to particular cases which has ensured that the Court is a centre of excellence in the many areas within its jurisdiction.  I note this year will also see the introduction of the electronic lodgement of all Court documents, considerable progress already having been made but this step will keep the Court ahead of the pack in the use of electronic technology and I would like to specifically acknowledge the Court’s contribution to the reforms of civil justice and indeed I mention that fact in introducing legislation in the Federal Parliament. 

I have also been tremendously uplifted by the personal commitment of yourself and fellow Judges to the cause of Native Title and Indigenous Rights.  It has been again of great assistance to me.  

I acknowledge also your eye to the future.  You have a great interest in ensuring education about social justice and the role of the Courts and that that forms part of a reinvigorated civics education, and you have left me with some work in progress in that respect and I will duly report the outcomes.  Indeed at our first meeting, which was here at this Court, I noted your passion about how the ideals of access to justice should be embodied in the architecture of the Federal Court buildings themselves.  The design concepts of light, space and accessibility were successfully translated to Adelaide, here in Melbourne, Sydney and other Court buildings and these buildings will be another enduring symbol of your Honour’s contribution to the life of the Court and to access to justice. 

In 1991 the then Solicitor-General, Dr Gavan Griffith QC, when welcoming your Honour as Chief Justice of this Court confidently predicted that in 20 years’ time, and we are here now, it would be said that the first two Chief Justices of the Court were great Chief Justices and I’m confident that the other five Attorneys‑General with whom you have also established strong and productive working relationships since your appointment would share my wholehearted agreement with that prediction.  Although you are retiring as Chief Justice, I think it is safe to say that you will continue to make an important contribution to the nation and in particular our nation’s legal system. 

I know you are looking forward to spending more time with your family at the risk of breaching a confidence I asked recently how Mrs Black would regard spending time with you and you openly said, “Well, I think Margaret will enjoy it.  We have been in love for 50 years, our relationship is quite remarkable,” and that is terrific.  

Your Honour, it has been a great privilege to be here today to express the deep gratitude of the Government and the people of Australia for dedicated service you have provided to this Court over the past two decades.  On behalf of the Government and the people of Australia, I extend my sincere best wishes to you and your family for the future.  May it please the Court. 

BLACK CJ:   Thank you, Mr Attorney.  Mr Ferguson, do you move?

MR G. FERGUSON:   May it please the Court.  It is a privilege to appear today on behalf of the Law Council of Australia and its constituent bodies, the Law Societies and Bar Associations of all the States and Territories of this country and the large law firm group to pay tribute to your Honour on the occasion of your retirement as Chief Justice of this Honourable Court.  On behalf of the Law Council of Australia, I would like to recognise your Honour’s outstanding contribution to the Federal Court of Australia over the last 19 years.  Your leadership of the Federal Court has left an indelible impression on the practitioners who attend this Court and, I would suggest, on the litigants who come to this Court seeking a just resolution of their disputes.  Your Honour’s responsive and innovative approach to procedural change not only demonstrates your outstanding administrative skills but also your highly developed sense of justice and complete understanding of the needs and wants of both practitioners and litigants. 

Under your guidance and control the Court’s jurisdiction has greatly increased and the Court has demonstrated its ability to adapt its own processes and requirements to continually improve its efficiency in dealing with this increased workload.  Also under your Honour’s guidance, as the Attorney-General mentioned, the Federal Court has introduced many innovations and procedural change including the specialist panel system, the introduction of the docket system and the wonderfully evocative rocket docket system.  The Federal Court’s ability and willingness to continually improve its processes and procedures has seen the Court’s reputation continue to increase at both a national and international level.  However, your Honour’s legacy as the Chief Justice of this Court extends well beyond practice and procedure.  

Your Honour’s contribution and commitment to the field of judicial education surprises no one who was aware of your involvement in the development of the Victorian Bar Readers’ course.  I am sure other speakers today will rightfully 
acknowledge your Honour’s very considerable contribution to the education of the profession.  It must also be acknowledged today that your Honour’s contribution to the Federal Court extends to a significant impact on the physical appearance of the Court.  Your Honour’s interest in architecture is well known, as is the fact that you played a major role in designing this very building we are in today as well as the elegant and functional Federal Court building in Adelaide and the refurbishments of the Courts in Hobart and Sydney.  

There are many more things I would like to say to properly acknowledge your Honour’s contribution to the legal profession, the judiciary and the Federal Court but I am mindful of your Honour’s wish for the speeches to be kept short.  I will conclude by simply stating that your Honour will be remembered by the profession for your humanity, your championing of judicial independence and your outstanding contribution to this Honourable Court.  Your Honour, and as the Attorney-General stated, has truly been a great Chief Justice and a leading judicial figure of this country.  On behalf of the Law Council, may I wish you well for a long and happy retirement.  May it please the Court. 

BLACK CJ:   Thank you, Mr Ferguson.  Mr Riordan, President of the Australian Bar Association, do you move?

MR P. RIORDAN SC:   If the Court pleases, I appear on behalf of, as your Honour quite rightly says, the Australian Bar Association and its constituents, the independent bars of the States and Territories of Australia.  Your Honour, last week saw the 10th Congress of the International Association of Supreme Administrative Jurisdictions in Sydney.  It was hosted by your Honour and Justice Downes of this Court.  Your Honours, in your respective roles as the Chief Justice of this Court and the President of the Administrative Appeals Tribunal, are the co-presidents of that association.  This is simply the most recent example of the international focus which has been developed by this Court under your watch.  In 2004 this Court and the Supreme Court of Indonesia became the first superior courts in the world to sign a Memorandum of Understanding.  Since then your Honour has met with the Chief Justice of Indonesia on an annual basis, alternating visits between Jakarta and Melbourne.  

This important relationship of capacity building and development assistance long predates the MOU in 2004.  It extends over some 15 years and it has supported the transition from Indonesia from a military dictatorship to the democracy that it is today.  Between 1999 and 2005, the Court delivered almost 100 workshops and training activities to over a thousand Judges in Jakarta and regional courts and some one hundred Judges and administrators have benefited from intensive training here in Australia.  The Court has also developed close involvement with the Pacific Island judiciaries, particularly Tonga, Vanuatu, Samoa and the Federated States of Micronesia.  The Court provides library assistance to Vanuatu, Samoa, Tonga, Kiribati and to the Intellectual Property Court of Thailand.

There are now Memoranda of Understanding with the Supreme and National Court of PNG, Papua New Guinea, and also with the Supreme People’s Court of Vietnam.  The Court has a close involvement, particularly with maritime affairs, with the Supreme People’s Court of China.  There is a program of exchange visits between Judges of this Court and the Federal Court of Canada, and indeed, we are honoured to have a guest today the Chief Justice of that Court, The Honourable Allan Lutfy, who is present.  There are also longstanding close links with the courts of New Zealand, and in particular, the New Zealand Chief Justice is here today as well, the Right Honourable Dame Sian Elias.

Your Honour, with characteristic generosity, you have traced the roots of the Court’s international relationships to Sir John Nimmo, who was the Chief Justice of Fiji before his appointment to this Court;  Sir Nigel Bowen, who as the Attorney-General encouraged engagement in the South Pacific, and also to Mr Morling, who served as a Judge of the Supreme Courts of Tonga, Western Samoa and Vanuatu.  Simply, your Honour’s contribution and leadership in the Court’s international relations has been outstanding.  On behalf of the Australian Bar Association, I wish you a very long and satisfying retirement with your wife, Margaret.  If the Court pleases.

BLACK CJ:   Thank you very much, Mr Riordan.  Mr Colbran, the Chairman of the Victorian Bar, do you move?

MR COLBRAN:   If it pleases the Court, I appear on behalf of the Victorian Bar and shall focus on your Honour’s 27 years as one of our number.  You served on the Victorian Bar Counsel, the Bar Library Committee and represented the Bar on Victoria Legal Aid and the Leo Cussen Board, but most importantly, your Honour is forever the foundation Chairman of the Victorian Bar Readers’ Course Committee.  The legacy of that course extends your personal and professional vision and influence to every person who has signed the Bar Roll since the first Readers’ Course in March 1980, 30 years ago.  Although the Readers’ Course Committee was not established until 1981, your Honour’s inspiration and passion led the whole endeavour of establishing the Readers’ Course from its very beginning in the late 1970s, even before you took silk in 1980.

Working with Stephen Charles, George Hampel and Michael Kelly, you persuaded a majority of the Bar that advocacy can be taught, and you led and directed the creation and critical first decade of the course.  Your Honour had yourself a remarkable number of Readers, ten.  They included Justices Finkelstein and Middleton of this Court, Justice Vickery and the late Justice Flatman of the Victorian Supreme Court, Judge Montgomery of the County Court and Senior Member Vassie of VCAT.  There is no count of those who learn from you in appearing as your Junior.  At your 1991 Melbourne Welcome to this Court, you spoke warmly of working together with your Juniors.  Your Juniors could not speak warmly enough of the privilege and delight of working with you.  Your dedication to the interests of those new to the Bar and your solicitude for their development singled you out as a personality whose impact on generations of barristers was unsurpassed.

You have had 35 Associates, whose current addresses illustrate the worldwide reach of your personal tutelage and influence;  the universities of Melbourne, Oxford and Cambridge, the Australian High Commission in Samoa, Shadow Minister in Canberra, major law firms in Melbourne, Sydney and New York, and of course many at the Victorian Bar.  Your Honour’s respect for and close engagement with each individual Reader, Junior and Associate is at the heart of your professional and educational philosophy.  That personal generosity of spirit and philosophy of engagement are the foundation of the Readers’ Course you established and of your leadership of this Court.  On behalf of the Victorian Bar, I wish your Honour and your wife, Margaret, a long and satisfying retirement.  May it please the Court.

BLACK CJ:   Thank you, Mr Colbran.  Ms Counsel, do you move?

MS COUNSEL:   May it please the Court.  I appear on behalf of the Law Institute of Victoria and the Solicitors of this State.  Your Honour’s Principal in Articles was Mr Leonard Clinton Shaw of the firm of what is now known as Corrs Chambers Westgarth.  Mr Shaw’s previous Articled Clerk also achieved distinction, The Honourable John Winneke, the first President of the Victorian Court of Appeal, and like your Honour, a Companion of the Order of Australia.  Your Honour went straight to the Bar.  You were admitted on 2 March 1964 and signed the Bar Roll two weeks later or so on 19 March, this very day some few years ago.

BLACK CJ:   So it was.

MS COUNSEL:   At the Bar, your Honour often represented the Law Institute in disciplinary proceedings.  You were also a Victorian Bar representative on the old Victorian Legal Aid Committee.  You worked closely with solicitors such as John Kelly and David Woollard.  John Kelly is a past President of the Institute and now a Barristers Clerk.  Your Honour’s contributions to the constant and substantial work of the Legal Aid Committee were highly valued.  

The Attorney-General referred to your Honour’s practice as primarily appellate.  Your instructing solicitors describe the extraordinary breadth of your practice;  Common Law, Crime, Personal Injuries, as well as Constitutional and Administrative Law, Equity, Commercial and Industrial Law, at trial and on appeal.  Asked recently about cases that were important to you, your Honour said:

Some of the most important cases are those no one has ever heard of.  You go into the Law to do good things.  The most obvious example, I suppose, is if you save someone from eviction;  that sort of thing.  I did some of those, and they were enormously satisfying.

Your Honour had, as Counsel, more than your share of prominent and publicly important cases.  You also did more than your share of fee-declined cases for people in need, including all the way to the High Court.  The Law Institute address at your Honour’s welcome singled out in particular the Tasmanian Dams case and Re Knowles, a convicted murder’s petition for mercy that was fully opposed and hard fought, and that you won.  With trepidation, because they are only a few examples, I single out for mention today Judgments in the case concerning Native Title to the islands of Dauar and Waier, expressly put to one side and excluded from the High Court Decision in Mabo, resolved in 2001, nine years after Mabo;  Haneef;  Al Masri;  and your Honour’s dissents in Tampa and Yorta.

It is said of your Honour that you are the quintessential Common Lawyer for the 21st Century.  You believe in, and use to great effect, the high technique of the Common Law adapted to the Age of Statute, and that your capacity to marry the two has been a seminal contribution.  Your insights into the technique of the Common Law in application to Statute are a resource on which the legal academy has drawn repeatedly to introduce its students to the intellectual excitement of the Law and its capacity to contribute to a better world, and to challenge them to achieve the highest standards.  The profession takes immense pride in the fact that tomorrow, the University of Melbourne will confer its highest honour, the degree of Doctor of Laws, upon your Honour.  

On behalf of the Law Institute and the Solicitors of this State, I wish your Honour and your wife, Margaret, a long and satisfying retirement.  May it please the Court.

BLACK CJ:   Thank you, Ms Counsel.  Well, thank you, Mr Attorney, Mr Ferguson, Mr Riordan, Mr Colbran and Ms Counsel for your very generous – embarrassingly generous ‑ remarks.  I appreciate very much what you have said, but must immediately add that achievements attributed to the Chief Justice of a large and collegiate court such as ours rest upon the work of many, and so it was also, such achievements as you have referred to at the Bar.  I will develop that idea a little later.

First, I want to say that the Court is greatly honoured by the presence here today of so many distinguished people, especially honoured by the presence of the Chief Justice of Australia, The Honourable Robert French, and Mrs French, The Right Honourable Sir Zelman Cowen and Lady Cowen, and The Right Honourable Sir Ninian Stephen and Lady Stephen.

We are greatly honoured too by the presence of Justice Hayne and Justice Crennan, Mr Crennan, and Sir Daryl Dawson and Lady Dawson.  The Court and I personally are likewise greatly honoured by the presence of the Chief Justice of New Zealand, Dame Sian Elias and we welcome and are honoured too by the presence of the Chief Justice of this State, the Honourable Marilyn Warren and the Chief Justices of the other States and of the Australian Capital Territory and the Northern Territory.  We also welcome the Chief Justice of the Federal Court of Canada, the Honourable Allan Lutfy and Mrs Lutfy.  Ottawa is in mileage terms a long way away but is close in others. 

It is a very special pleasure to have with us today the President of the Victorian Court of Appeal and many Judges of that distinguished Court and also many members of the Supreme Court of Victoria.  My own pleasure is all the greater because I have had a close and happy association with nearly all of them at them at the Bar.  I mean I have had a close and – that is the problem with lawyers, I have had a close and happy association with those I was at the Bar with – you cannot get out of the habit – and a close – although context would have solved it, as it always does, although the words that we are told must prevail, and a close and happy association with all of them as fellow members of the Judiciary.  I also welcome an old friend from the New South Wales Bar, an old comrade in arms and a member now of the Supreme Court of New South Wales and I thank him for coming so far to be at this sitting.  

I am delighted also to welcome Judges of the Family Court, my old friend, the former Chief Justice, the Honourable Alastair Nicholson and we welcome too the Chief Federal Magistrate and the Chief Judge of the County Court and Judges of that Court, Federal Magistrates – Chief Federal Magistrate I should have said – and the Chief Magistrate of Victoria.  My retired Federal Court colleagues from Victoria are especially welcome and they are included in the tribute that I will later pay to the Judges of this Court.  

This Court and the Supreme Court of the six States and three Territories and the Family Court have developed strong and cordial relationships over the years.  They have been strengthened by many individual friendships including, from my view point, greatly valued friendships between heads of jurisdictions.  It is a moving experience for me to be joined here in this Court, this Number One Court in Melbourne, by all the members of the Council of Chief Justices of Australia and New Zealand with whom it has been an enormous privilege to work. 

There is a very strong sense of unity within the judiciaries of Australia and we can indeed refer to ourselves as members of an Australian Judiciary, or an Australian/New Zealand Judiciary as the case may be, but whilst doing that we need feel no less attached to our own institutions and our own deep historical foundations.  This is very much a federalist approach.  I have been especially conscious of those foundations over the past few weeks.  That said, jurisprudentially and in practical terms, we are all part of an integrated legal system in Australia, of the High Court at its apex.  As has been observed, the development of the common law of Australia – a term not widely in use when I assumed this office and not in use at all when I began practice – is a great cooperative enterprise in which we are all engaged.  

There is also a close and affectionate relationship between Australian Judges and our judicial colleagues across the Tasman.  This is evident in the regular meetings of the Council of Chief Justices of Australia and New Zealand and also in the annual conferences of the Supreme and Federal Courts which New Zealand Judges also attend and in whose country the conferences are sometimes held.  We share with New Zealand too close links with the jurisdictions in the Pacific Islands through shared aid projects and the biennial Civic Judicial Conference.  We value greatly our very close links also with the Canadian Federal Court and the presence of my friends, Chief Justice Allan Lutfy and Mrs Lutfy, all the way from Ottawa, attests to the strength and warmth of that relationship, and long may it thrive.  

It has been an enormous privilege to have been a member, and still remain a member until midnight tomorrow, of this great body of – midnight on Sunday on the better view, of this great body of judges who share the great common law tradition.  There are, however, important links which have been referred to with other parts of our region and we do especially value our links with the Supreme Court of Indonesia and with the Supreme and National Courts of Papua New Guinea.  These and other such relationships should be seen as two‑way affairs.  As I myself have said in addresses to the Supreme Court of Indonesia in Jakarta, the meeting of common law and civil law Judges, such as we have in Indonesia and such as we have had in Sydney and Canberra last week, are especially important and I am proud of the part that my colleagues have played in that discourse.  

I should add that the international work is often quite unglamorous.  It is performed by my colleagues with great generosity; a weekend trip starting late on Friday and returning on Monday morning to South East Asia is interesting but not glamorous and it is hard work and I commend them.  That is how it is all done and I commend them for it.  

I also now wish to welcome the members of the Bar and the solicitors who are present and to say how pleased I am that they are here.  Thank you all for attending and it is particularly good to see old friends.

Although I developed a federal practice and spent much time in other parts of Australia over the last 19 years, indeed before, I have very deep roots in the profession in this State.  I had the privilege of serving my Articles in Melbourne with a very fine firm of solicitors and of reading here with one of the great common law advocates of my time.  Incidentally, Sir John Nimmo was his master, was Woods Lloyd’s master;  it is an interesting continuity.  I also had the privilege of being led by and subsequently leading outstanding advocates who had chambers in the city and I had the benefit of being a member of a Bar whose traditions of excellence and independence are very strong.  Those are traditions that lie deep in the history of this part of Australia and beyond in the Bars of England and Wales and in the Irish Bar in Dublin, from both of which our first members came. 

I always wanted to be a barrister and I have never regretted my decision to become one.  I greatly enjoyed my time in practice at the Bar based as it was here in Melbourne.  That said I also derived great satisfaction from working with members of the solicitors’ branch of the profession in cases, as you kindly mentioned Ms Counsel, and on occasions acting for their professional association.  I thank the members of that side of the profession for their presence too.  I commend the profession in Victoria as elsewhere, for its commitment to procedural reforms in this Court-reforms that need to continue and which now are underpinned by amendments the Parliament made recently to the Federal Court of Australia Act.  For these I also thank you, Mr Attorney. 

One of the many desirable developments during my time on the bench has been the increasing recognition given by the Superior Courts of Australia to the work of academic lawyers, to law teaching and to the importance of the law schools generally.  I have greatly valued my association with my old University of Melbourne and with Monash as well and I am enormously honoured, as indeed we all are, by the presence in Court today of my Law Dean, Sir Zelman Cowen, one of the great law deans to whom many of us on this Bench owe a great deal;  it is a great honour that Sir Zelman is here with Lady Cowen.  It is with a sense of continuity therefore that I also welcome the present Dean of the Melbourne Law School, Professor Michael Crommelin, I am delighted to see him and his colleague, Professor Saunders from Melbourne University and my friends Professors HP Lee and Marilyn Pittard from Monash. 

When I joined the Federal Court there were many distinguished scholars on the Court but none of them, as I believe, had been members of the full time staff of the universities.  That has now changed and a little while ago I counted up eight members of our Court who had held senior full time academic rank, six of whom had been, at one time or another, Deans of Law Schools.  We have benefited greatly from these connections and continue to do so.  

I now wish to pay a tribute and to recognise and thank my judicial colleagues.  In response to the very generous observations that have been made from the Bar Table I again emphasise that the achievements of a Court such as ours are in many respects necessarily collegial.  Without that they would not happen.  The development of jurisprudence is somewhat different because although that is developed in a collegial atmosphere, the reputation of a large Court must rest upon the aggregation of contributions that are very much individual as Judges perform the individual tasks of applying the law.  This reflects the nature of a large Court that has both trial and appellate jurisdiction, but in both these respects the Court has been extremely fortunate in having had members, past and present, of the highest calibre and I am confident that will continue in the future, Mr Attorney. 

During my time in office, my colleagues have continued the tradition established by the foundation Judges that we recognise of exceptionally fine scholarship and also of innovation and courtesy.  These qualities have characterised all aspects of the work of my colleagues including the administration of the Court, a matter to which I shall refer briefly.  

I want to illustrate these qualities, again briefly, by reference to the Native Title work that my colleagues have undertaken.  This work has been shared.  It is a great tribute to them that an entirely new field of jurisprudence has been developed through their decisions and of course those of the High Court on appeal.  Just as importantly to my mind has been the way in which my colleagues have developed new procedures, such that the Court now sits routinely in some of the most remote areas in the world, in some areas so remote that there are occasions on which the first item of evidence on the transcript is the recording of the GPS coordinates.  These are places rich in human history that nevertheless do not appear on any map, a matter that gives cause for reflection. 

My colleagues have sat in these areas with difficulty but without complaint.  They have been innovative;  they have heard evidence in the form of song and of dance, and from groups of people;  they have developed the common law and the procedures of the common law so as to be sensitive to the culture of our indigenous people.  They have made much new law.  

I take these as for example from just one area of our Court’s jurisdiction.  My colleagues have been innovative in other areas.  They have also sought to reform the procedures of the Court in many ways and we have done so and they have done so successfully.  We seek to reduce, and continue to seek to reduce, delay and cost.  

Together we have also developed self-administration from its infancy six months before I took office to its form today in which the Court has responsibility for every aspect of its administration and in which many of the decisions represent the collegial view of the Judges.  

A recent tradition in the Court has been that at a farewell ceremony for each Judge the Chief Justice makes his own brief additional comments about the special contributions made by the retiring Judge.  It is a tradition that we have borrowed from New South Wales and it is a very good tradition, however, if I would do so today, it would take a very, very long time and I must therefore express my tribute and my thanks – my warm thanks – to my fellow Judges in a general way but deeply conscious of their large individual contributions.  

In focussing upon the present Court, we should not forget the past.  We inherited, if that is the right word – possibly not – a very strong Court with a fine collegial spirit.  It has grown in size;  it has also grown in the scope of its jurisdiction.  We should however recollect that we have suffered some very bad times as well.  

We suffered a profound loss in 2001 when John Lehane passed away, and multiple profound losses four years later with the passing within the space of 12 months of John Lockhart who had retired, Bryan Beaumont who had just retired, Brad Selway, Peter Hely and Graham Hill who died in office.  These were huge losses of friends and outstanding legal scholars and Judges.  I pause to remember them now.  Nevertheless the Court got itself together, got up and continued, as of course it must and does.  

The other profound loss was that of Richard Cooper, also in 2005.  It is a matter of great emotion that one of the symbols of the Court, a symbol we use in Brisbane, and which travels elsewhere, is in memory of the late Justice Richard Cooper, it is the Coral Sea Oar Mace of Admiralty.  He was a great Judge and a great friend. 

How can I sum up?  I will say simply that it has been an enormous privilege to work with such an exceptional group of Judges who have contributed so much to the development of the law here and internationally.  I am deeply grateful to all of them.  I have been doubly fortunate to have presided over a Court that is constituted by people who are not only outstanding Judges but whom I am proud and happy to call friends and indeed I do call them friends.  I extend my heartfelt thanks to them and my very best wishes.  

I must say a little about the staff of the Court.  I have made my gratitude to them plain, I hope, in other sittings but there are a few more things that should be said.  Between them the staff perform;  one might find in a small department of State.  They do everything.  The difference only is that this organisation is part of the judicial branch and the staff here see themselves as working to support that independent and indispensable third branch of Government.  

They are an excellent group of people who, as they now probably tire of hearing me say, are in many instances the face of the Court.  As such, their courtesy, their competence and devotion to their work is greatly valued, as is their role in maintaining the reputation of the Court for courtesy, innovation and I hope, excellence.  We, meaning the Judges and I as Chief Justice, value them very highly.  They are led by the Registrar and Chief Executive, Mr Soden who was first appointed in 1995 for the maximum term of five years and is currently serving his third term.  Mr Soden and I have worked very closely and very well together and he has played a pivotal part in the development of the Court.  It is true to say that the individual docket system would not have been introduced without him and his role has been pivotal in other reforms.  I thank him on my own behalf and on behalf of us all.  We would not be where we are without him. 

I thank our District Registrar, Ms Lagos, our Director of Court Services, Ms Kenworthy and our excellent Deputy District Registrars, particularly for their work in assisted dispute resolution and everyone would want me to thank our librarians, in this case in Melbourne, Mr Botherway to whom I am personally very grateful.  One other person, apart from my personal staff, I want to mention and that is – there are two people, one is our Native Title Registrar, Ms Anderson, for her fine work and good guidance in that difficult area.  The other is Ms Josan, the National Appeals Registrar with whom I have worked for 19 years and she has performed brilliantly often in, shall I say, complex circumstances.

I now want to take one, maybe two minutes to pay tribute to my personal staff.  Every Judge does this and the personal staff of the Chief Justice should not be excluded because there are quite a lot of them.  First Mr Graham Healey.  He has worked with me for some 19 years.  I think he and my driver and administrative officer, Mr McEvoy, are the longest serving members of my personal staff.  Mr Healey is known to every Judge of this Court and to the Judges of many other Courts and the excellence of his organisation and he deserves the thanks of us all.  I would not speak too soon but so far he has managed to get 47 Judges in and out of this Court, or into the Court, without difficulty.  I could not do it, they would not take any notice of me, but Mr Healey does it and he does it time and time again.  I thank too Mr McEvoy, my incomparable driver and administrative officer.  He has been with me for 19 years.  Pardon a slight bit of actual liberty but it is true, we have never missed a flight.  That is nothing to be wondered at in itself but equally he has never exceeded the speed limit.  That is a tribute to great skill and certain levels of diplomacy as well. 

I thank the Director of Public Information, Mr Phillips.  He has been responsible for great innovations and progress in an area to which the Attorney has referred, telling the people what is going on in the courts and how they work.  It is the appreciation of an informed public about the value of the rule of law that is the best guarantee of it.  It is informed public confidence that matters, and Mr Phillips, in his daily work and with his innovations, has directed us to that end, and I thank him for his work.  I thank Ms Lang for her fine work, and I thank, very deeply, Mrs Galea and Ms Perri, my two Principal Assistants for their quite exceptional work over very many years.  Their capacity to ensure what they are pleased to call my “plane work” on the many flights on which they have accompanied me in the work of the Court has been remarkable.  I could not have gotten through my work without them.

Finally, I wish to thank my Associates, or Law Clerks, as I would prefer to call them, using the internationally recognised term;  that is one battle that I have lost.  One of the pleasures and benefits of service as a Judge of this Court has been working closely with what I would call Law Clerks; outstanding young people, and I have had the privilege of working with many of them over the past 19 years.  I’m grateful to them all.  Many of them are present today, and I thank them all, not least those who have travelled from other parts of Australia to be here.  For those who have sent notes from England, France and the United States, I extend my thanks too.  I thank them all - and also Princeton.  Do not forget Princeton, and Harvard.  I thank them all for adding so much to the special character of this Farewell, and to Ms Tanner and Ms Lord, my present Associates, I say thank you also.

In conclusion, I wish to say something about the Federal Court’s relationship with the Executive Branch of government.  During my time in office, the relationship between the Court and the Executive Branch has been conducted, as is appropriate, exclusively through the Attorney-General and the Attorney-General’s Department.  Over 19 years, that relationship has been, invariably, both cordial and productive.  It is often said that there is an inevitable tension between the Executive and Judicial Branches, and certainly there have been instances of such tension, but I am inclined to think that the inevitability of it is overstated.  A mutual understanding of, and respect for, the roles of each other, which can be in conflict in one sense, should surely reduce any such tensions, if not remove them.  I do not believe that they are endemic.

Be all that as it may, the important point is that notwithstanding tensions that do emerge from time to time between the Court and the Executive Branch generally – although never with the Attorney personally – those tensions have never once, never once, impacted negatively upon the relationship between the Court and the Executive Branch with regard to its resources or any other aspects of that relationship.  Any presumed unhappiness of the Executive Branch at decisions of the Court – and it is apparent from time to time – has never intruded into my relationship of the Attorney of the day or with any of the officers of his department.  

There have been five holders of the Office of Attorney-General during my time, and I have valued the relationship with each of them.  Each has been cordial.  The needs of the Court have been understood, and it has always been possible to have a calm discussion about difficulties.  Of course there are disagreements, but that, really, is nothing to the point.  Of course, we have not always got what we have asked for, and that is nothing to the point.  Mr Attorney, you would think I was losing my touch if I did not mention Darwin.  I would not want you to think that I was losing my touch.  

The pivot point in the relationship between the Court and the Executive Branch is that between the Chief Justice and the Attorney-General.  This is fundamentally important.  The relationships, however, with the Secretary of the Department and the Deputy Secretary, and other senior officers, are also of great importance.  Here again – and I want to put this on the record – the Court has been very well served.  I am particularly pleased that Mr Govey has been able to be here today;  he and other senior offices have always provided an excellent means of communication between the Court and the Executive Branch, and they have striven to make the system work well.  I thank them and their predecessors in office.  As I have said, there have been matters upon which we have not agreed, and requests for resources and other requests have not been met, but that’s not to the point.  I might add I have never known in my time an Attorney-General of the Commonwealth, whilst the holder of that office, to attack the Court or any of its Judges.  That is an important matter, and the Commonwealth is to be commended for that high level of propriety in that respect, whatever they may have thought privately.

I believe that the relationship between the Executive Branch and our Court has been enhanced by the grant of self-administration.  That occurred only six months before I took office, and self-administration has developed very substantially since then and is now complete.  The point about is that decisions about the Court and the deployment of its resources are made by those, that is to say, all of us, who are responsible and who are directly affected by the outcomes.  I have no doubt that this has led to reforms, internally generated;  it has led to reduction in potential areas of conflict;  and it has meant the departmental offices have not been bothered in many matters that the Court attends to by itself.  It is a wholly beneficial process, and I hope it always continues.

So to conclude, I thank you all for being present.  I express my heartfelt thanks to my colleagues and to the staff of the Court for their great achievements.  To my successor, we are all delighted that he and Dr Keane are with us today, and that Justice Keane was with us yesterday at a meeting of the whole Court.  To my successor I offer my congratulations and my warmest good wishes.  I said in Brisbane some weeks ago that I was confident that he would receive elsewhere the same warm welcome that he had then received in Brisbane, and such, of course, has been the case.  I leave the Court confident that it is in the very best of hands.

I had tried in Sydney, I think probably unsuccessfully, to conclude by asking those present to imagine the Bench as a stage upon which all the players were assembled at the end of one of many performances – and that is important because there will be many, many more.  I would emerge from the orchestra pit and I would acknowledge all my colleagues.  Do not do this!  There would be wild applause for them, and I would then acknowledge them, as I now do.  Someone would come on to the stage from right and offer me a big bouquet of flowers, and I would then continue to acknowledge them, my colleagues.  I do acknowledge them.  They have been wonderful people to work with, and it has been an enormous privilege.

Finally, I want to say – if I can get through this, because I am deeply moved – how delighted I am that members of my family are present here today.  I have thanked many people, and rightly so, but the person I would thank and recognise above all others is, Mr Attorney, my wife, Margaret.  What you said was correct;  we met when we were students at Melbourne University some 50 years ago and she has been my constant support ever since.  To the extent that there have been achievements attributed to me, she has been at the heart of every one of them.  

Mrs Healey, would you adjourn the Court, please.

______________________