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TRANSCRIPT OF PROCEEDINGS

O/N 131219
FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT TO WELCOME

THE HONOURABLE Patrick Keane,
Chief Justice, Federal Court Of Australia

THE HONOURABLE CHIEF JUSTICE KEANE

THE HONOURABLE JUSTICE EMMETT
THE HONOURABLE JUSTICE FINKELSTEIN
THE HONOURABLE JUSTICE JACOBSON
THE HONOURABLE JUSTICE BENNETT AO
THE HONOURABLE JUSTICE EDMONDS
THE HONOURABLE JUSTICE GRAHAM
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COWDROY OAM
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE FLICK
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN

SYDNEY

9.31 AM, MONDAY, 29 MARCH 2010

ASSOCIATE:   Welcome to the Honourable Patrick Keane.

KEANE CJ:   Mr Bathurst, before I invite you to address the court, Justice Emmett has some observations he wishes to make.

EMMETT J:   Chief Justice, today marks the first time that you have sat in Sydney, the seat of the court’s largest registry.  In the absence of Justice Moore, Sydney Senior Judge, may I, on behalf of the Sydney judges, welcome you publicly and express our immense pleasure at your appointment.  As our third Chief Justice, you have inherited the Federal Court’s tradition, established by Sir Nigel Bowen, and maintained by Michael Black, dispensing justice in deciding cases innovatively, efficiently and courteously.  You may be assured of the support of your Sydney judges in maintaining and furthering that tradition in the exercise of the extensive and varied jurisdiction that is vested in the court.  We look forward to exercising that jurisdiction under your leadership.

KEANE CJ:   Thank you, Justice Emmett.  Mr Bathurst, do you move?

MR BATHURST QC:   May it please the court.  It is a great pleasure to welcome your Honour, on behalf of the Bar of New South Wales, on this, the first occasion on which your Honour has come to Sydney in your capacity as Chief Justice of this court.  Your Honour, in the past couple of weeks, has been subjected to what could have been described as a tsunami of flattery.  The only way it cannot be described in that way is because what has been said was accurate.

I don’t propose to unnecessarily repeat the dose, for two reasons:  first, there’s not much I can add to what has already been said, and second, your reputation is so well known at the Bar in this state that it does not need any additional speech from me to enhance it.  However, can I just say this:  your Honour was Solicitor-General for Queensland for the period from 1992 until your appointment to the Queensland Court of Appeal in 2005.  Your Honour was ranked amongst the finest Solicitors‑General in that period.  That was all the more remarkable, as you combined that role with the most successful private practice of the Queensland Bar.

As Solicitor-General, you appeared with distinction in most of the major Constitutional cases of the decade, significant cases in administrative law, such as Ainsworth v the Criminal Justice Commission, and major commercial cases, both in Queensland and the High Court.  As a judge of appeal in Queensland, your Honour followed that court’s tradition of intellectual quality and clarity established by judges such as Justice Bruce McPherson, one of the finest Australian judges not to have been appointed to the High Court.

The breadth and depth of experience acquired by your Honour in these capacities makes you an ideal person to be appointed to this very important office which you now hold.  Unfortunately, your Honour did not appear very much in Sydney.  It was far more common for you to fly over this city, en route to Canberra, than to come and 
terrify the Bar in this state by your forensic ability and intellectual skill.  We hope you rectify this as Chief Justice.

If this magnificent courtroom and the highly-intelligent, diligent, and, dare I say, convivial Federal Court judges sitting in this state, coupled with the attractions of Sydney, are not enough to tempt you, can I just remind you that the Bar in this state has been invaded in recent years by Queenslanders.  You will certainly find many friends here.  On behalf of all members of the Bar of New South Wales, can I again extend my warmest congratulations and best wishes on your appointment.  May it please the court.

KEANE CJ:   Thank you, Mr Bathurst.  Ms Macken, do you move?

MS MACKEN:   May it please the court.  On behalf of the solicitors of New South Wales, it is an honour and a privilege to welcome your Honour to Sydney.  Sydneysiders are a bit like the courtroom in which we sit today;  innovative, accessible, warm and friendly.  In fact, given the design of the courtroom, conceived under the guidance of your predecessor, Admiral Black of HMAS Federal Court, one might hope to entice your Honour to hold more sittings in Sydney than in your home state, Queensland.

As further incentive, Sydney, which is recognised as the gateway to the world, and listed 10th on “The World’s Best Places to Live 2009” - the highest of any Australian city - can provide local champagne to rival Bollinger and all the joie de vivre necessary to soothe any inconsolable Francophile.  Indeed, the Contra la Perouse, sent to the Pacific by the French King, Louis le Dernier, Louis XVI, chose Sydney as his Australian destination of choice when he sailed here in January 1788, and, alas, he would have fared better had he lingered here, rather than sailing out from Botany Bay in March 1788, never to be seen again.

Indeed, Sydney needs you in more ways than one.  In the year to September 2009, 16,000 interstate migrants settled in Queensland, compared to a net loss by New South Wales of 16,700 residents.  Clearly, Sydneysiders will do their best to entice you to stay over as much as possible.  Queensland may have Ewen McKenzie and the Queensland Reds, rested back from Stade Français, but in Sydney you’ll be able to catch two of the three State of Origin matches this year.  As an added enticement, the solicitors of New South Wales would be honoured to supply your Honour with a Blues jersey, scarf and beanie for these occasions.  One imagines, though, that the court’s OH&S committee may already have this in hand.

Your Honour has a reputation for being one of Australia’s hardest-working judges, and possessing one of the nation’s finest legal brains.  On his departure from this court, former Chief Justice Black described your Honour as a person of outstanding ability in many fields, renowned for your scholarship and for the exceptionally high quality of your judicial work.  Those many fields of expertise don’t perhaps cover administrative tasks, as your Honour has admitted finding those somewhat challenging.

An area of concern both the former Chief and your Honour share, relates to issues around increased litigation, delays in settling cases, and the inevitable escalating costs of those delays.  In your Honour’s address to the Judicial Conference of Australia in October last year, you voiced your support for regulation of litigation funders, saying that “courts should not be delayed or distracted by claims which are brought only because there are profits in their promotion”.

Your Honour comes to this role at a time of change and challenge in terms of the future structure and direction of the Federal Court, the law and access to social justice.  The strength of your Honour’s convictions and your fearlessness in the face of opposition, combined with your wisdom, wit and warmth, augers well for the future of this court, law and order, the judiciary and the community.

The 23,000 solicitors of New South Wales look forward to providing their support and expertise when you next sit in Sydney.  On their behalf, I wish you a successful and rewarding career, and congratulate you on your appointment as Queensland’s first, and the nation’s third, Chief Justice of the Federal Court of Australia.  As the court pleases.

KEANE CJ:   Thank you, Ms Macken.  Colleagues, ladies and gentlemen, Mr Bathurst, Ms Macken, I am very grateful for, and much encouraged by this welcome from the two branches of the legal profession in New South Wales.  It’s been as warm as the welcome I have received from my colleagues in Sydney.  It is a particular pleasure for me today to see at the bar table my old sparring partner, Mr Bennett, Queen’s Counsel for the Solicitor-General for the Commonwealth, and Mr Sexton SC, the Solicitor-General for the state of New South Wales.

It’s a happy coincidence that the portrait of Sir Nigel Bowen, which is seen to my right, has recently been returned to this courtroom after its refurbishment, because it gives me the opportunity to pay tribute, albeit an inadequate one, to him, as the court’s first Chief Justice.  Sir Nigel Bowen was a great lawyer and advocate.  The summaries of his arguments in the High Court, which appear in the Commonwealth Law Reports, still bear close study.  The compelling elegance of his arguments stands in stark and instructive contrast with so much of the cluttered and convoluted advocacy that was then in vogue.  But it was as the first Chief Justice of the court that Sir Nigel made his greatest contribution to the law in our national life.

Sir Nigel Bowen’s stated vision, as mentioned by Justice Emmett in his remarks, when Sir Nigel oversaw the establishment of this court, was that it should be a court of excellence, innovation and courtesy.  Now, more than three decades later, no one would, I think, doubt that Sir Nigel’s ambition has been achieved, at least to this time.  What might be thought, however, is that there was little that was especially visionary in his stated ambition for the court;  but that would be wrong.

To those who think that it is trite that a court should, as a matter of deliberate policy, strive for excellence, I would say that 35 years ago the authority of the courts derived very much from the fact that they were an organ of government, and governmental 
authority was then attended by a universal expectation of obedience.  Government, even in Australia, was still conceived of something which those in power did to those who were not.  That is certainly no longer the case.  The authority of the courts is now, more than ever, seen by our well-educated and rights-conscious community, to rest upon the quality of the reasoning on which the judgments of the courts are based.  Excellence is now essential to the maintenance of the authority of the courts.

Sir Nigel saw that this was indeed the future, and 35 years ago, innovation – that is to say, openness to different ways of doing things – was not regarded as the virtue that it is today.  New South Wales, at that time, had only just made the great leap forward to 1873 in terms of the adoption of the Judicature Act reforms, and some lawyers and judges in New South Wales thought that this was an act of dangerous radicalism.  Some still do.  Today, we recognise that new ways of doing things, such as active, and, perhaps it might seem at times, unduly aggressive case management are not only capable of improving the processes of the administration of justice, but are actually essential to enable them to cope with the needs of the community and to ensure access to justice and to prevent the courts becoming the playthings of the rich.

But it was in relation to the idea that a court should actively strive to be courteous that Sir Nigel’s vision was truly somewhat different.  In New South Wales, as in my own state, a judge who behaved as a hectoring bully was not regarded as particularly unusual.  The tone on the Bench often seemed to be set by angry old men.

As a young barrister, I had the great good fortune to appear before Sir Nigel on several occasions, mostly, I must say, in Brisbane.  He was a pleasure to appear before, but he was no pushover.  He simply believed that the advocates contributed more to the just determination of the case if they were not harried and hectored, and were allowed to develop their arguments in their own way in order to show their merit.  That approach did not commend itself to all of Sir Nigel’s contemporaries.  Many of them were very great lawyers and judges in their own way, but they could not be accused of being a pleasure to appear before.

Of course, it is possible to stretch the friendship.  Courtesy on the part of the court assumes an irreducible minimum of professionalism on the part of both branches of the profession, particularly the Bar, but there is, I think, every reason for confidence in the high professionalism of the solicitors and barristers of New South Wales.  To the extent that this court has lived up to Sir Nigel’s vision – and I believe that it has – that has been, in very large part, due to the high standard of the assistance always afforded to the court by the solicitors and barristers of New South Wales.

I am confident that the profession in New South Wales and the judges of this court will not slacken in their combined efforts to ensure the continued success of Sir Nigel Bowen’s vision for this court as one of excellence, innovation and courtesy.  I am very grateful to you all for this morning’s expression of the dedication of the legal profession in this state to that task.  The court will now adjourn.

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