Ceremonial Sitting of the Full Court
To farewell the Honourable Justice Nicholas
Transcript of Proceedings
RTF version - 276 KBTranscript of proceedings
THE HONOURABLE DEBRA MORTIMER, CHIEF JUSTICE
THE HONOURABLE JUSTICE NYE PERRAM
THE HONOURABLE JUSTICE JOHN NICHOLAS
THE HONOURABLE JUSTICE ANNA KATZMANN
THE HONOURABLE JUSTICE MICHAEL WIGNEY
THE HONOURABLE JUSTICE MELISSA PERRY
THE HONOURABLE JUSTICE BRIGITTE MARKOVIC
THE HONOURABLE JUSTICE STEPHEN BURLEY
THE HONOURABLE JUSTICE MICHAEL LEE
THE HONOURABLE JUSTICE CRAIG COLVIN
THE HONOURABLE JUSTICE THOMAS THAWLEY
THE HONOURABLE JUSTICE ANGUS STEWART
THE HONOURABLE JUSTICE WENDY ABRAHAM
THE HONOURABLE JUSTICE JOHN HALLEY
THE HONOURABLE JUSTICE ELIZABETH CHEESEMAN
THE HONOURABLE JUSTICE HELEN ROFE
THE HONOURABLE JUSTICE SCOTT GOODMAN
THE HONOURABLE JUSTICE ELIZABETH RAPER
THE HONOURABLE JUSTICE GEOFFREY KENNETT
THE HONOURABLE JUSTICE IAN JACKMAN
THE HONOURABLE JUSTICE YASEEN SHARIFF
THE HONOURABLE JUSTICE JANE NEEDHAM
THE HONOURABLE JUSTICE CAMERON MOORE
THE HONOURABLE JUSTICE JAMES STELLIOS
THE HONOURABLE JUSTICE HOUDA YOUNAN
SYDNEY
9.16 AM, WEDNESDAY, 30 APRIL 2025
MORTIMER CJ: I extend a very warm welcome to all those who have taken the time today to come and farewell Justice Nicholas, a colleague who will be sincerely missed. I acknowledge the many distinguished guests who join us today. Thank you for taking the time to attend this ceremony. The ceremony is taking place on Gadigal country, and on behalf of the Judges, Registrars and staff of the Federal Court, I offer our respects to the Gadigal People of the Eora Nation, to their ancestors and to their elders. I acknowledge the stewardship Gadigal people have shown over their country long before colonisation and the stewardship that they continue to practise despite colonisation. We also welcome Justice Nicholas’ family and friends.
Today is a chance to thank you for the support that you have shown to Justice Nicholas so that he can engage in the very fine public service that he has. You will also hear how much his service as a judge on this Court has been appreciated by others. Justice Nicholas, you were appointed to this Court over 15 years ago on 16 November 2009. Since your appointment, you have been recognised as one of this Court’s most prominent intellectual property jurists. Your colleagues note your capacity to grapple with new challenges raised by developing technologies, especially in patent law. You’re known for your clear articulation of principle, and your judgments always provide an excellent source for a detailed examination of legal principle.
Those who work in the intellectual property area have come to rely on your reasons for guidance. Members of the Bar and the profession who practise in these areas are here in strength today. Many of your decisions have involved complex scientific evidence in areas such as gene technology, and while I may not personally have ventured deep into your evidentiary analysis in these cases, I’m reliably informed by those colleagues with a much greater understanding than me that you have a real talent for explaining the scientific evidence in clear and cogent terms, and a similarly clear and cogent manner of applying principles to that evidence.
Along with Justices Emmett and Jagot, you were responsible for settling a copyright infringement dispute about one of the most iconic Australian songs, identifiable with persons of certain ages that may or may not include myself. I refer to the case about copyright infringement by Men At Work with their song Down Under. I might be mentioning that because it’s one subject matter that I can identify more easily than gene technology. The proceeding turned on the rock band’s use of the famous folk melody Kookaburra Sits in the Old Gum Tree, and it had an unusual genesis.
The judgments of the primary judge and Justice Jagot on appeal revealed that the connection between the two works was exposed by a question on the ABC quiz show Spicks and Specks, which apparently tipped off the rights holder to the derivative use. I’m reminded that Alexander Pope wrote, “mighty contests rise from trivial things,” and that might serve as a fitting epitaph to that litigation. I know others this morning will be addressing the body of your judicial work more comprehensively, but I did think that one was worth a mention.
Justice Nicholas, both before and after I took over this role as Chief Justice, you have always been a colleague full of warmth and kindness, with a strong sense of judicial propriety, a person to whom your colleagues could turn for careful reflection and guidance on any matter, whether inside or outside the courtroom. You will be missed in the Sydney Registry in particular, but also all around the country in all of our registries. I offer you our very best wishes, and I offer your family our very best wishes too, from all the Court staff, our Registrars and from your judicial colleagues. Mr Melican, Deputy Chief Counsel, Australian Government Solicitor, representing the Attorney-General for the Commonwealth, I invite you to address the Court.
MR P. MELICAN: May it please the Court. I would also like to begin by acknowledging the traditional owners of the land on which we meet, and to pay my respects to their elders, past and present, and I extend that respect to any Aboriginal and Torres Strait Islander people here today and viewing this ceremony online. It is a great privilege to be here on behalf of the Australian Government and the people of Australia to celebrate your Honour’s service as a Justice of the Federal Court of Australia.
The Attorney-General, the Honourable Mark Dreyfus, regrets that he cannot be here to share this occasion with you. He has, however, asked that I convey the Australian Government’s sincere appreciation for the significant and lasting contributions your Honour has made in your time as a judge of this Court. Your Honour retires after almost 16 years of service with the Court, or to the Court, and today, we celebrate your long and distinguished career. The presence of your Honour’s family, friends and colleagues here today speaks volumes about the legacy of your career, and the high regard in which you are held both professionally and personally. May I particularly acknowledge the Honourable Stephen Gageler AC, Chief Justice of the High Court of Australia, the Honourable Jacqueline Gleeson, Justice of the High Court of Australia, the Honourable Jayne Jagot, Justice of the High Court of Australia and the Honourable Andrew Bell, Chief Justice of the Supreme Court of New South Wales, as well as other current and former members of the judiciary, fellow speakers and members of the profession.
I acknowledge, also, the presence of your Honour’s family and loved ones who proudly share this occasion with you, in particular, your Honour’s mother Betty, who joins us remotely, your wife, Dawn, your sons, Oliver and Tom, your stepson, Jason, and your sister and her partner, Kim and Chris, who are here with us today. I would also like to note some significant people in your Honour’s life who I know you would have wished to be here today if they were still with us. Your Honour’s beloved stepfather, Fred, who passed away in 2015, and your friend and mentor, the late Honourable Lindsay Foster SC.
I am told that your Honour’s career path in the law was determined as a result of reading Glanville Williams’ Learning the Law as a senior high school student. Your Honour graduated from the University of New South Wales in 1982 with Bachelors in Arts and Laws. Your Honour commenced work as a full-time solicitor at Paul A. Brown & Co in Bondi Junction, the same small law firm where you worked as a part-time clerk while completing your studies. There, you were tasked with hands-on experience in the conduct of a range of cases from initiation to conclusion.
Two years later, your Honour joined a then modestly sized Baker & McKenzie, crucially exposing your Honour to a workload dominated by commercial practice. Your Honour was called to the Bar only five years later, and specialised in intellectual property and commercial litigation. Shortly thereafter, you co-founded Nigel Bowen Chambers in 1991, which was renowned for providing expertise in intellectual property law. Your Honour worked on several interesting and high-profile cases during that time, including the case of Twentieth Century Fox Film Corp v South Australian Brewing Company, more commonly known as the Duff Beer Case.
Your Honour was appointed Senior Counsel in 2001. In this role, you were held in extremely high regard by Judges, your peers at the Bar and solicitors alike. Those who remember your Honour from that time describe you as an exemplary leader with a conversational but firm manner in court, relaxed and confident. But more than that, your Honour has been characterised as a generous, kind and wise colleague and friend. Your Honour’s reputation for expertise in intellectual property cases preceded your appointment to the Court in 2009. Since that time, your Honour has sat on hundreds of cases, most frequently intellectual property cases, as a trial Judge and also on the Full Court, many of which were concerned with important points of principle in trade mark law, copyright law and patent law.
These included cases involving the liability of internet service providers for copyright infringements, including the first judicial consideration given in relation to the internet website blocking provisions of the Copyright Act and the operation of the indirect infringement provisions of the Patents Act. Coupled with your Honour’s profound appreciation for the complexities of such laws was your ability to quickly understand the human dimensions and dynamics that have led to any particular dispute. These qualities have served your Honour exceptionally well during what has been an eminent career on the bench.
Notably, your Honour has been a part of almost every full Federal Court decision on the patentability of computer implemented inventions over the past decade, of which there have been many. Your Honour has been instrumental in shaping the Court’s decision-making in this important area of law. In addition to your Honour’s responsibilities on the bench, you have for a number of years been a member of the Court’s Audit Committee, which handles the Court’s risk management, and requires both substantial additional reading and a sharp eye. As with your Honour’s time at the Bar, others have often noticed your calm and quiet manner to garner the attention of Court. While examining grounds of appeal, your Honour’s ability to ask a single, at times novel, question, which pivots the entire hearing to the critical point on appeal, has always been impressive. It has often been said that when your Honour spoke, it was important to listen closely, and that included others on the bench. I have it on good authority that colleagues have also appreciated your Honour making yourself available to be a sounding board about issues in cases that you are not involved in, and that you have been a generous and kind colleague and friend.
I have been told, although it is obvious, that others will miss your Honour’s friendship and wisdom. Beyond a true dedication to the law, your Honour’s dedication to your family, in particular, your wife and children, is something for which you are known. I am told, as a passionate sailor, your Honour plans to spend much more time in retirement on your boat and with your family. I am reliably informed that your Honour also intends to travel more frequently, in particular to Switzerland, where you enjoy visiting good friends.
As a keen student of German, I am told you also wish to dedicate more time to improving your language skills. Your Honour’s impressive bookshelves will also get some more attention, as you will now have the opportunity to delve into the biographies and historical texts you have acquired over the years. Your Honour, it has been a great privilege to participate in today’s celebration of an outstanding career and contribution to the legal profession and to this Court.
Your Honour’s commitment to the law can be seen in how you build up those around you, and as well as your many contributions through significant judgments. Your Honour provides an exceptional example to all. On behalf of the Attorney-General, the Australian Government and the Australian people, I thank you for the extraordinary contribution you have made to the Court, and wish you all the very best as you commence this new chapter in your life. May it please the Court.
MORTIMER CJ: Thank you, Mr Melican. Dr Higgins, President of the New South Wales Bar Association and representing the Australian Bar Association.
DR R. HIGGINS SC: May it please the Court. I, too, acknowledge the Gadigal of the Eora Nation. I give my respect to their elders, past and present, and extend that respect to all First Nations persons present today. Chief Justice Mortimer, it is an honour to speak today on behalf of the New South Wales and Australian Bar Associations at this ceremonial farewell. Justice Nicholas, in March 2022, you gave an interview for Intellectual Property Forum, in which, when asked what path you would have taken, if not the path of the law, you responded, and I quote:
Professional mariner, because I have always loved ships, sailing, and the ocean.
Counsel accustomed to appearing before your Honour will find this no revelation. To conduct such an appearance competently, Counsel was required to prepare their craft meticulously, anticipate the tides, and be ready to confront any weather head on. Your Honour as judge had a mariner’s directness. Experienced Counsel understood that an appearance before your Honour could be fun, often thrilling, in the way that extreme sports can be simultaneously vivifying and terrifying, but would always be rigorous and fair.
The testing typically began at the first case management hearing. From that point on, Counsel knew precisely where they stood with your Honour. The comparative attractiveness of a submission could be assessed in real time by an appraisal of your Honour’s response. The scale ran something like this. When your Honour said, “Never mind about what the pleading says, I’ve read it. Tell me your best point”, Counsel understood that prevaricating was not going to cut it.
When your Honour said, “Yes. All right. Is there anything else you want to say about that?”, it conveyed an understanding that Counsel was playing bravely a bad hand within its proper limits. Counsel who refrained from asking the final question in cross-examination could expect to be met with, “Well, are you going to ask them the next question or not? If you’re not going to, I will.” And then your Honour would. If at a first case management hearing, your Honour said, “Yes. Well, we will get to the timetable, but before we do, what is your case, exactly?”, Counsel understood that things may be about to go quite badly.
And when your Honour said, “What are you saying?”, things were not going at all well. In those moments, attentive Counsel rapidly learned the lesson that your Honour imparted to all of your Junior Counsel while at the bar. Sometimes, the best advocacy is to say nothing at all. Or as Ernest Hemingway put it in The Old Man and the Sea, “it was considered a virtue not to talk unnecessarily at sea”. Your Honour had been schooled in directness from an early stage. Following time as a solicitor at Baker & McKenzie, you were admitted to the Bar in August 1987, reading with John West KC, and your Honour’s great friend and former judge of this Court, the Honourable Lindsay Foster SC. Once at the Bar, your Honour was immediately a fashionable and busy Junior Counsel, specialising in commercial litigation, with a particular emphasis on intellectual property, copyright, patents and trademarks.
As a very Junior Counsel, your Honour arrived in style, appearing in the Charles of the Ritz litigation, a worldwide trademark battle in which the Ritz Hotel of Paris tried to prevent Charles of the Ritz Limited from using its name and thereby tarnishing the glitz of the Ritz. The hearing before Justice McLelland lasted nine months, including periods of taking evidence in London and New York. Having practised from Blackstone Chambers from 1987 to 1991, your Honour became a founding member of Nigel Bowen Chambers, which was the first Australian chambers to specialise in intellectual property law while also encouraging broader practice.
It remains to this day the preeminent intellectual property chambers in Australia. Your Honour took silk in 2001 and became a leader of the intellectual property Bar. That practice, on occasion, involved your Honour assuming the status of a silent provision of the Judiciary Act. In Stevens v Sony Corporation (2005) 224 Commonwealth Law Reports 193, a case concerning the anti-circumvention provisions of the Copyright Act, your Honour appeared for the initially unsuccessful applicant in the Federal Court. Mr Stevens appeared in person on the special leave application. The High Court granted special leave to appeal on the condition that your Honour appear on the appeal. You did, and you won.
Junior Counsel who worked with your Honour speak of your tenacity, dedication, inquisitiveness, preparedness and attention to detail. There was no such thing as a stray or misplaced word in your written or oral submissions, and your Honour instantiated a rule that you later urged upon practitioners once at the bench, and, again I quote:
Do not ever put a submission in writing that you would not be prepared to put orally.
As a judge of this Court since November 2009, your Honour has contributed to every moving part of this nation’s intellectual property law, and, more broadly, including to consumer law. In ACCC v Trading Post Australia Proprietary Limited, the ACCC sued Google and others concerning alleged misrepresentations conveyed by sponsored links in Google search results. Your Honour held that the sponsored links were advertisements, and that any representations conveyed by them were made by the advertisers who paid for them, and not by Google.
Your Honour was reversed by the Full Federal Court and then happily restored by the High Court. As a member of the Full Federal Court, your Honour was one of a five-member bench in Encompass Corporation Proprietary Limited v Infotrack Proprietary Limited, which considered the vexed question of the extent to which computer-implemented inventions are patentable. So, too, your Honour was part of the Full Court which upheld the trial Judge’s finding that internet service providers do not authorise infringement of copyright by users of their services in Roadshow Films.
Your Honour’s dedication to the judicial task did, however, encounter rational limits. A duty matter came before your Honour in 2015, later reported as Seven Network (Operations) v Endemol Australia Proprietary Limited. The Seven Network sought to enjoin Endemol from airing their show called Hotplate on the basis that it infringed copyright in My Kitchen Rules. During the application, your Honour raised increasing concerns with the parties about the prospect of the Court having to watch extensive episodes of reality TV to resolve the dispute.
Having lost none of the barrister’s art of persuasion, your Honour managed to secure agreement from the parties that you need only watch a total of six episodes, being approximately half the number of episodes the parties had originally jointly submitted was the bare minimum. Throughout your Honour’s time on the bench, your court remained a demanding but pleasant place to practise law. In the trial of ASIC v Vocation Limited, this exchange occurred upon the handing up of a document. Mr Leopold:
May I hand up one with markings? It has got some highlighting.
Your Honour:
Well, I wasn’t looking at the highlighting. I was looking at either the coffee or the blood that’s on the front page. Go on.
Mr Leopold:
It could be blood after yesterday.
In the damages hearing in the Aristocrat case, this exchange occurred between Mr Bannon SC, a witness, Mr Holson, and your Honour:
Did you actually read the patent in this case?
Yes. I did.
You don’t say you relied upon it for any purpose in your report.
No. But I thought it was relevant to read it. The examples that are given in the patent are very helpful.
And did you read his Honour’s judgment?
I did.
And how helpful was that?
Very helpful.
Your Honour:
That’s funny, Mr Bannon.
Your Honour today leaves not only the Court, but also your executive assistant, Jill Carson, with whom your Honour has worked since your time at the Bar, and with whom you have shared great loyalty and commitment to your work. Likewise, your Honour leaves behind a legacy of lasting friendships with, and mentorship of, the many associates who have assisted your Honour during your time in this Court. Your Honour has observed, and, again I quote, that:
The role of the judge is that of a problem solver. And, quite often, the solution to the problem is slightly different to the solution to the problem that is presented by the parties.
One apprehends that retirement will not confront your Honour as a problem to be solved, but rather, as a series of opportunities. An opportunity to spend time with your wife, Dawn, and your children, Oliver, Tom and Jason. An opportunity to indulge the many books that have given way to the law on econometrics, naval architecture, statistics and Chinese calligraphy. An opportunity to sail long stretches of sea in the quiet company of practised mariners, as your Honour once did in a large sailing boat from Tahiti to Australia.
And an opportunity to socialise freely with your many remaining friends and colleagues at the Bar. Justice Nicholas, the barristers of New South Wales and Australia thank you for your contribution to the administration of justice in this country, and for keeping us all so very robustly on our toes. We will miss you, but we wish you contentment and adventure in everything you now choose to do. May it please the Court.
MORTIMER CJ: Thank you, Dr Higgins. Ms Warner, President of the Law Council of Australia and representing the Law Society of New South Wales.
MS J. WARNER: May it please the Court. I echo the acknowledgements made of the traditional custodians of the land on which we meet today, the Gadigal people of the Eora Nation. I also acknowledge the honourable Debra Mortimer, Chief Justice of the Federal Court of Australia, Mr Peter Melican, Senior Executive Lawyer, Australian Government Solicitor, representing the Attorney-General today, my very good friend, Dr Ruth Higgins SC, President of the New South Wales Bar Association, all Judicial officers, particularly the ones here, dignitaries, family friends, and, most of all, your Honour.
It is a great pleasure to be with you today on behalf of Law Council of Australia and Law Society of New South Wales. Jennifer Ball from Law Society of New South Wales can’t be here today, because I sent her to Parramatta to do a swearing in at the Court there. In any event, she wishes you well. What we want to do today is to celebrate the contribution that you have made to the administration of justice in this country and wish you well in the next chapter of your life.
The rule of law and particularly emerging challenges to the foundational principles of our justice system has been occupying me quite a lot in recent times, particularly because Law Council recently joined with multiple Bar associations from around the world to write publicly in support of the American Bar Association. So it is gratifying to rise today to speak in this place, committed to and led by individuals dedicated to upholding the rule of law. The oath your Honour swore as you began your 15 years of outstanding service to the people of Australia, including an undertaking to do right to all manner of people according to law without fear or favour, affection or ill will.
I think we would all agree that the quality consideration you gave each and every matter that came before you reflected your aspiration to ensure that you got all of your judgments right. Less than six months ago, we, sadly, farewelled your Honour’s colleague, the Honourable Justice Yates. The loss of both Yatesy and Nicho, as I have heard members of the profession who are far braver than me affectionately refer to you, is sadly noted by those who come before this Court, particularly those who specialise in intellectual property. Your own expertise, as well as your prodigious drive to constantly learn and keep up to date meant that those who appeared before you knew better than to try and get something slipped past you.
Solid legal arguments without pomp or performance were expected. Despite your Honour’s renowned courtesy to all who appeared before you, I know there were lawyers who always experienced a significant level of anxiety, because they knew that they were in the presence of a leading authority who would require Counsel to be clear, concise and cut to the chase. Over the many years that your Honour served on the bench, you never became complacent, and you approached each matter with the same level of gravity and intent as you did on day one.
Your Honour has made a significant and valued contribution to the complicated and, I find, technically extremely challenging area of the law that is intellectual property and public law. Your intense focus on the law and the cases before you did sometimes mean that some of the everyday tasks might fall off your radar. Someone close to your Honour shared with me a lovely anecdote that I just can’t resist repeating today. As it was told to me, your Honour was provided with a mechanical pencil and became a big fan.
You would take copious notes while engrossed in a case, and as you forcefully crossed t’s and dotted i’s, the ends would regularly break off and go all over the place. One day, you mentioned to Jessie McKenzie, your associate at the time, how impressed you were by the longevity of those pencil leads, they seemed to last forever. You were subsequently informed, sheepishly, that what was really happening was not that the shoemaker’s elves were replacing the lead every night, but, in fact, Jessie was collecting all the broken bits and sticking them back in, so that you could continue your enjoyment with the mechanical pencil.
The profession holds your Honour in great esteem. The Law Council’s Intellectual Property Committee holds an annual dinner to which Judges are invited. Your Honour has been a regular attendee. I can assure you that the warmth your Honour showed the profession at these events was very much reciprocated. Your Honour’s absence from these dinners is already being mourned. Your presence will be very much missed. Your Honour has been a beloved mentor to many, and a champion for many early career lawyers.
I understand you’ve been very encouraging of Senior Counsel giving Junior Counsel time on their feet and experience in court, which is just so important. Your Honour’s interest and support in those that you have mentored doesn’t end once they leave a particular period of training, or leave your employ with you. I was told a story about a colleague who worked alongside your Honour’s first associate after she left your chambers. My colleague fondly recalls how wonderful you were to your associate while she worked with you, and how you stayed abreast of her career, and cheered on throughout the rest of her career.
Apparently, every time my colleague would encounter your Honour, she would be asked, “Are you looking after her?” It is incredibly special to have so many of your loved ones here today to mark this milestone with you. Your family is extremely important to your Honour. You’re exceptionally proud of your sons, who I believe are all with us this morning. I can guarantee that your mum, Betty, who I understand is joining online, is a very proud mother today. I understand your sister, Kim, and her partner, Chris, have travelled from Melbourne to be here, and your wife, Dawn, who was beside you when you were sworn in, in 2009, is, of course, also with us as we observe the close of your service to the Court.
Please don’t think that the profession and community have lost sight of the fact that those who don a Judge’s robes do so just to be of service. The service your Honour has provided is one we are extremely grateful for, and we need our Judges to continue serving our communities. After all you have achieved, and how you’ve given back to our community, no one could criticise you now for taking time to slow down and take it easy, or even do nothing. I understand that’s unlikely to be the case.
While I definitely wish your Honour some much deserved rest and relaxation, those who know you best are betting that you won’t be sitting still for too long. Aside from your passion for spending time with your family and friends, sailing, and travelling, which seems plenty to keep you occupied, you’re a hugely curious person, and you have a voracious appetite for – well, just, really, anything that involves learning new things. I’m sure you will continue to immerse yourself in the topics, subjects, hobbies and pastimes that capture your interest in the years ahead. Your Honour, it is a great privilege to thank you for your service on behalf of the Australian Legal Profession and the solicitors of New South Wales, and to wish you well. May it please the Court.
MORTIMER CJ: Thank you, Ms Warner. Justice Nicholas, I invite you to respond.
NICHOLAS J: Thank you, Chief Justice. I acknowledge the traditional owners of the land on which we meet today, and I pay my respects to their elders past and present. I also acknowledge the presence of the Honourable Chief Justice Gageler of the High Court of Australia, Justices Gleeson and Jagot, the Honourable Chief Justice Bell of the New South Wales Supreme Court, Justices of the Supreme Court of New South Wales, including Judges of the New South Wales Court of Appeal, former Judges of this Court, my good friend Nicholas Manousaridis, Judge of the Federal Circuit and Family Court of Australia.
Thank you very much to Mr Melican, Dr Higgins and Ms Warner for your excessively generous remarks. They are much appreciated, and I thank you for being here. Welcome, also, to other distinguished guests, and, of course, to my family, my wife, Dawn, my sons, Oliver and Tom, my stepson, Jason, my sister, Kim, and her partner, Chris. I also welcome Tom’s mother, Jackie, and Tom’s carer, Julie, whose motto, which she lives by every day, is “everybody matters”. My mother, Betty, is watching the live stream of this ceremony, so a big hello and welcome to her too.
Welcome, also, to many other friends and colleagues here today. I’m honoured by the presence of all of you. There are two people I want to mention at the outset who were present at my swearing-in, but are no longer with us. The first is the late Roger Gyles AO KC. He was a friend and mentor to me, a giant of the legal profession, and a remarkable advocate and Judge of this Court. He was the person who raised with me the possibility of my joining this Court, for which I will be forever grateful.
The other person I want to mention, of course, is the late Lindsay Foster. He retired from this Court in 2020 and sadly passed away the following year. COVID restrictions prevented him from receiving the farewell that he richly deserved. He was a great friend and mentor to me for more than 35 years. He was also a great friend and mentor to others present today, including Andrew Salgo, Judge Manousaridis and Justice Ian Pike. He was a person to whom we and many others could, and did, turn to for advice in both our professional and personal lives.
We first met when he was a junior barrister and I was a young solicitor working at Baker & McKenzie, where I worked with many good friends and colleagues, some of whom are here today, including Andrew Salgo, Ron Webb, now Ron Webb SC, Edward Cowpe and Christopher Saxon. One of the greatest sources of satisfaction and enjoyment as a Judge has stemmed from my working with 14 wonderful associates over the last 15 years, most of whom are here.
Anna Vandervliet, Will Aplin, Jessie Porteus, Anita Wise, Angela McDonald, Sarah Constable, Anna Harley, Edward Thompson, Jessie McKenzie, Claudia Harper, Andrew Ray, Alexandra Gassner, Amy Tesoriero, and my current associate, Mikhayla Trope. A special shout-out to Anna Harley, who has travelled from England to be here today. My sincere thanks to each and every one of you for all your hard and energetic work, your friendship, your patience and your understanding. I wish you happiness and success in your family lives and your careers. Thank you, too, to my colleagues and friends from Nigel Bowen Chambers, including past and present members.
A special thank you to John Ireland KC and David Catterns KC who were instrumental in establishing the floor. Because David Catterns is now retired, many of my colleagues will never have the pleasure of listening to some of the most engaging and erudite submissions made in this Court. David was Australia’s preeminent IP practitioner, and he was an inspiration to every young barrister with whom he worked, many of whom are now Senior Counsel, or, in a few cases, Judges of this Court.
Thank you, also, to the profession more generally. With very rare exceptions, Counsel and solicitors who have conducted cases before me have always done so to a high standard, which, as my colleagues will know, makes our job easier in some respects, but much harder in others. I have appreciated the professionalism of Counsel and solicitors who have appeared over the last 15 years. They were often required to explain to me matters of complex science and technology, and they did so always with great patience and good humour. They have also been gracious in victory and in defeat, and respectful towards the Judge with whose reasons they may have disagreed.
I have had the honour of serving as a Judge with four Chief Justices. Michael Black AO KC, Patrick Keane AC KC, James Allsop AC and Chief Justice Mortimer. Each has made important contributions to the institution, and I thank them for the leadership that they have provided to myself and my colleagues during their tenures. The strength of the Court’s reputation is apparent from the outstanding quality of its appointments, including, of course, our four most recent appointments to this registry. The Chief Justice has been greatly assisted by the Principal Registrar and CEO Warwick Soden, and, since 2020, Sia Lagos.
Both have made extraordinary contributions to the Court. In particular, I want to thank Sia for all she has done for the Court and the Judges during a period in which our administrative structures have undergone profound, and sometimes difficult, change. I also want to acknowledge the many accomplishments of James Allsop, our former Chief Justice, who, with Sia, successfully navigated the Court through the COVID restrictions, ensuring that it remained open for business, not just in some nominal or minimalist way, but permitting myself and other Judges to hear lengthy and complex trials, remotely in some cases, with concurrent evidence being given by expert witnesses located in three different continents.
That’s not to say the system always worked perfectly. Mr Murray may remember the time in one of those cases where the CEO of Mr Shavin’s client, then located in Israel, suddenly appeared on our rather large screen, sitting on the end of a bed in her pyjamas, having inadvertently turned on the camera at a quite inopportune time. Now, my notes here say:
Let me add a little to what has been said about Comcare v PVYW.
Which, for reasons I can’t fathom, nobody has mentioned, so let me do so. It’s a decision that the Chief Justice of the High Court, Justice Gageler, is very familiar with. In my chambers, we affectionately referred to this case as the sex on the job case. For those IP practitioners who fondly refer to the modified Cripps question, you may know that PVYW gave rise to what is now referred to as the modified Hatzimanolis principle, which, for those who wish to undertake some further reading, is discussed in a splendid article by Jessup and McIlwraith in volume 38 of the University of New South Wales Law Journal, entitled “The Sexual Legal Geography in Comcare v PVYW”, an article written in the context of an emerging scholarship focused on the intersection of sex, the law and geography.
The learned authors were plainly taken by the dissenting judgments of Justices Bell and Justice Gageler, as the Chief Justice then was, affirming my judgment at first instance, finding that the claimant was entitled to compensation for injuries suffered in unusual circumstances in the course of her employment. The authors of that article observed that his Honour, Justice Gageler’s judgment:
...confronted the sexual conduct involved in the case, acknowledging that sex is very much a part of human life. His view challenged the prevailing sexual geography of the case.
Now, his Honour’s judgment doesn’t refer to the notion of sexual geography at all. And I’m not quite sure what sexual geography actually is, but, little did I know that, aided by his Honour’s highly transparent elucidation of the issues in that case, I’ve been afforded an honourable mention in the emerging field of sexual legal geography. But what was of most interest to me, at a personal level, was the media attention that that decision excited, which included – as reported to me by my children – colourful discussion on late night TV in the United States, ridiculing a rogue Australian Judge’s decision to – as they wrongly interpreted it – award damages against an employer for injuries suffered by an employee during “a wild sex romp,” which was said – again wrongly – to involve someone “swinging from a chandelier.” The decision was portrayed as wacky and insane. I’m talking about my first instance decision, of course. The decision prompted all this publicity, but it also prompted calls that I received from people outside the law who I hadn’t heard from for years, saying, “Hey, was that you?” “Are you a Judge now?” “Wow, that is some case you decided.” As my good friend Peter Callaghan said to me at the time, “Mate, you can work all you like on those IP judgments, but this is the case for which you will always be remembered.”
This brings me to my executive assistant, Jill Carson. Jill commenced working for me when I was still at the bar at Nigel Bowen Chambers, joining me at the Court in 2009. She has been a dear friend, and a trusted and loyal confidant, for more than 20 years. She knows things about the internal workings of the Federal Court that are now known only to a very select few: the so-called “work besties” – a small group including Jilly; Justice Katzmann’s EA, Terese; and David Yates’ former EA, Mary. Thank you so much, Jilly, for your tireless work, your good humour, patience and understanding, and your dedicated service to the Court over the years.
To my sons, Ollie and Tom, and my stepson, Jason, I’m so very proud of you all. Ollie and Jason are fine young men who have established themselves in promising careers in the law and in the construction industry. My son, Tom, who must cope with a significant disability, has done so courageously, with a happy and positive attitude, and an outlook on life that I find truly inspirational. To my wife, Dawn, thank you, my darling, for your steadfast love and support during the last 20 years, in which time we both had to manage busy careers and the complexities of our blended family. We’ve enjoyed very happy times together, with many more still to come in retirement.
I found my work on the Court demanding but intellectually stimulating, and, for the most part, highly enjoyable. I will miss my interactions with Counsel, testing this or that argument, and the great satisfaction the Judge and Counsel share in the smooth running of a trial. I’m deeply mindful of just how fortunate I’ve been in so many ways, including growing up during a period in which I was never sent to war and never at any real risk of being sent to war, and when a university education in this country was truly free. I thank my colleagues on the Court, including those now retired, for their friendship and support during the past 15 years. It has been a great honour and privilege to serve as a Judge of the Court alongside such esteemed colleagues.
I’m certain the Court is in good hands at all levels and that it will continue to serve the nation with distinction. Finally, thank you to Dimi for all her work in organising this ceremony today, and particularly the Chief Justice for affording me the opportunity to mark this significant occasion in my life. And thank you all for honouring me by your presence here today. Thank you, Chief Justice.
MORTIMER CJ: Thank you, Justice Nicholas. The Court will now adjourn.
