Ceremonial Sitting of the Full Court
To farewell the Honourable Justice Yates
RTF version - 283 KBTranscript of proceedings
THE HONOURABLE DEBRA MORTIMER, CHIEF JUSTICE
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE BROMWICH
THE HONOURABLE JUSTICE BURLEY
THE HONOURABLE JUSTICE LEE
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE COLVIN
THE HONOURABLE JUSTICE THAWLEY
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE STEWART
THE HONOURABLE JUSTICE JACKSON
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE HALLEY
THE HONOURABLE JUSTICE CHEESEMAN
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE DOWNES
THE HONOURABLE JUSTICE GOODMAN
THE HONOURABLE JUSTICE O’SULLIVAN
THE HONOURABLE JUSTICE McEVOY
THE HONOURABLE JUSTICE RAPER
THE HONOURABLE JUSTICE KENNETT
THE HONOURABLE JUSTICE JACKMAN
THE HONOURABLE JUSTICE SHARIFF
THE HONOURABLE JUSTICE NEEDHAM
SYDNEY
9.31 AM, TUESDAY, 26 NOVEMBER 2024
MORTIMER CJ: We have a full house, and welcome everyone to what I’m sure will be a ceremony full of stories and accolades. Justice David Yates is one of the truest gentlemen and one of the most admirable intellects this Court has been fortunate to have as a Judge. Our 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 that Gadigal people have shown over their country long before colonisation, and the stewardship they continue to practise despite colonisation.
I also acknowledge the many distinguished guests who join us here today, including serving and former Justices of Federal and State Courts. Your collective presence bears witness to the reputation that Justice Yates has. Close to the front, as they should be, with some having travelled long distances, are Justice Yates’ family, including his partner, Leonie. Today is a chance to thank you for the support that you’ve shown to Justice Yates so that he could engage in the fine public service that he has. Justice Yates, you were appointed to this Court on 30 November 2009. That is almost 15 years ago.
You are, of course, a leading Judge in the intellectual property area and in the commercial and corporations area. For your whole time on the Court, you’ve acted as a corporations, and then commercial and corporations Duty Judge. You’ve published over 660 Single Judge judgments and participated in more than 160 Full Court decisions. You’ve undertaken a wide range of corporations and commercial law work, including numerous Regulator cases at first instance and at Full Court level. You’ve been a member of very many powerful Full Court Benches.
In 2018, you imposed on the Commonwealth Bank what was then, at the time, the largest civil penalty in Australian corporate history, a penalty of over $700 million for numerous admitted contraventions of the Anti-Money Laundering and Counter-Terrorism Financing Act. Recently, you gave a judgment in favour of ASIC against Latitude Finance and Harvey Norman concerning the provision of financial services involving the purchase of goods by instalment payments on no-deposit and no-interest terms.
You’ve heard approximately 104 intellectual property trials and appeals, without counting all the interlocutory work for these proceedings, which has been enormous. In the intellectual property area, it’s hard to know where to begin and where to end. There are decisions such as Optical 88, a trademark decision where you’ve explained a number of cardinal principles in trademark law which has been cited on more than 245 occasions to date as well as becoming standard authority relied on in the Australian Trademarks Office.
There was the Apple and Samsung litigation which was handled and heard by both yourself and former Justice Annabelle Bennett including the two of you sitting together to hear concurrent expert evidence and also dealing separately with aspects of that enormous litigation. A number of your patent trial judgments are routinely cited for the discussion of various principles of patent law. One such case is the 2015 decision of Otsuka Pharmaceutical v Generic Health which has been cited more than 45 times in this Court, the former AAT and by the Australian Patent Office.
You’ve heard several very lengthy class action proceedings. One class action is, I understand, a proceeding you consider to have been significant in several ways. Typically, for someone who has never made the craft of being a Judge about himself, this case is important because of what it delivered to the applicants, a group of impoverished Indonesian seaweed farmers. The case is a 2021 decision called Sanda v PTTEP Australasia. It was a common law negligence claim in relation to an oil spill from a well in the Montara oil field on the Timor Sea, but in Australian territorial waters. Oil and gas flowed into the Timor Sea for over 10 weeks.
There was region in the Nusa Tenggara Timor province where seaweed farming was one of the major village activities, and Mr Sanda, the applicant in the case, was one such farmer, and he claimed that oil from the spill reached this area, killed seaweed being cultivated by over 15,000 seaweed farmers and caused production to fall considerably for several years afterwards. It was a hotly contested trial. The seaweed farmers had to come to Australia to give evidence. Most of them had never been out of their region, and approximately 30 of the 81 villages had farmers who attended this Court building for the trial.
A published account of the case pays significant tribute to the way you case managed the proceeding and conducted the trial. You accepted the evidence from the seaweed farmers as reliable. You heard expert evidence from over 19 experts as part of that litigation. You found against the respondents’ express arguments that they owed a duty of care to the seaweed farmers and had breached that duty, and in February 2023 a settlement of over $192 million was approved.
I’ve spent some time on that decision because I know it was important to you. It also illustrates your acutely refined judicial skills, both in substance and in case management, and the deliberate, careful and unassuming way in which you go about your judicial work with significant consequences for litigants and for the reputation of this Court.
I’ve one more anecdote before I make way for all those sitting at the bar table ready to tell their anecdotes. In the early 1990s, a young man returned to Sydney from London. He thought he might go to the New South Wales bar. He was told to ask David Yates to be his tutor. This young man was not known at all to David, but David agreed without hesitation. When this young man finished his reader’s year, he thanked David for being his tutor. And David said, “That’s all right. Comes with a lifetime warranty.” And indeed, that lifetime warranty has, I am being told, been called upon many times for both advice and friendship.
And today, in this Court, that still relatively young man sits on the bench with us, Justice Stephen Burley. Justice Yates, in your quiet and unassuming way, even in my short term as Chief Justice, I’ve been able to count on you for wise and objective advice. Just as importantly, even from south of the border, I’ve been able to count on you for the model that you show to the Court’s newer Judges about all the qualities that make up a fine Judge. You will be missed from the Courtroom, you will be missed from chambers, and you will be missed by all your interstate colleagues. We wish you a healthy and fulfilling retirement, and you have our gratitude for your service to the administration of justice and to the Australian community. Mr Blunn, Australian Government Solicitor representing the Attorney for the Commonwealth, I invite you to address the Court.
MR M. BLUNN: May it please the Court. I would like to begin by acknowledging the traditional owners of the land on which we meet today and pay my respects to their elders past and present. I also extend that respect to all Aboriginal and Torres Strait Islander people here today. It is a great privilege to be here today 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 KC MP, regrets that he cannot be here today to share this occasion with you. However, he has asked that I convey the Australian Government’s sincere appreciation for the significant and lasting contribution your Honour has made in your time as a Judge on this Court. As the Chief Justice has said, your Honour retires after 15 years of service to the Court. And today, we celebrate your long and illustrious career.
The presence of your Honour’s family, friends and colleagues speaks volumes about the legacy of your Honour’s career and the high regard in which you are held, both professionally and personally. May I particularly acknowledge the Honourable Chief Justice Stephen Gageler AC, Chief Justice of the High Court of Australia, the Honourable Justice Jacqueline Gleeson, Justice of the High Court of Australia, the Honourable Justice Robert Beech-Jones, Justice of the High Court of Australia, the Honourable Chief Justice Andrew Bell, Chief Justice of the Supreme Court of New South Wales, and the Honourable William Gummow AC KC, former Judge of the Federal Court of Australia and former Justice of the High Court. I also welcome other current and former members of the judiciary and members of the legal profession. May I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you. In particular, your Honour’s wife, Leonie, your daughters Imogen and Sophie, and Sophie’s partner, Max, your Honour’s brother, Raymond, and sister-in-law, Kerrie, and your wife’s aunt, Vicky.
Your Honour has always displayed a strong work ethic. Your Honour entered the workforce early, helping your parents run a neighbourhood news agency in Wollongong, delivering newspapers early in the morning. I understand this helped set the foundation of how your Honour approached work, first as a Solicitor, then as a Barrister, and subsequently as a Judge. Work hard and always maintain the high standards in what you do. Your Honour was drawn to a career in the law through the influence of your Honour’s grandfather, Arnold Markey, who served for many years as tip staff to Justice Maguire of the New South Wales Supreme Court. Your Honour graduated from the University of Sydney in 1977 with a Bachelor of Laws.
Your Honour commenced your legal career at the age of 22 as a solicitor at Sly & Russell and you were quickly made an associate partner at the age of 25. Your Honour was called to the Bar in New South Wales at the age of 27. Your Honour was appointed Senior Counsel in 1997. In this role, your Honour was held in extremely high regard by Judges, your peers at the bar and solicitors alike. Solicitors receiving a new intellectual property litigation instruction or a competition law matter rushed to brief your Honour as quickly as they could. Your Honour will not remember this, but I missed out on several occasions in that rush, most probably to Peter Armitage, who’s here today.
Your Honour’s respect for colleagues, regardless of their level of expertise or position, is something which stood out to your Honour’s workmates during your years of practise. Your Honour has been an inspiration to many and the kindness and patience shown to colleagues, particularly those new to the profession, is widely acknowledged. Your Honour was known not only as the leader of the intellectual property bar, but also for being approachable, reliable and responsive, as well for having a high intellect and experience in a range of other practise areas. Each of these qualities prepared your Honour for a distinguished career on the Bench.
Your Honour is, unsurprisingly, as highly respected on the bench as during your time in the profession. Your Honour’s colleagues have referenced many significant cases in which you appeared as counsel or over which your Honour has presided. I’m told your Honour can also take credit for coining the term “decision tree” regarding section 41 of the Trade Marks Act 1995. Your Honour is known for delivering leading judgments in the area of Intellectual Property. However, as with your Honour’s time at the bar, your Honour’s expertise extends into a number of other areas of law, and your Honour has delivered a number of groundbreaking judgments, which is part of your Honour’s lasting legacy on the Bench.
Your Honour is known for being considerate, respectful and patient. Of particular note is your Honour’s compassion for, and respectful treatment of, self-represented litigants. Your Honour is described as being a pleasure to appear before, always remaining open-minded and with a keen interest in the matters that come before you. In addition to this, your Honour has continued to promote collegiality on the Bench. This was best evidenced during a unique matter in which you sat alongside one of your colleagues and jointly heard a matter. I’m also told your Honour provides great comfort and advice to your Honour’s fellow Judges in chambers during challenging times.
Beyond a true dedication to the law, your Honour’s dedication to your family, in particular your wife Leonie, and your two daughters Imogen and Sophie, is something for which your Honour is known. Your Honour’s family has travelled extensively, favouring expedition holidays to South America, the Arctic and Europe, which allow an immersion into the natural world. I’m sure your Honour is very proud that your daughters have both followed in your Honour’s footsteps to pursue careers in the law, careers that have taken them abroad and offer even more reason for you to travel.
I’m told your Honour also has an interest in gardening and farming. In addition to the very large and beautiful home garden, your Honour has been tending to a much loved property in the Blue Mountains for a number of years. Gardening and being outside are things your Honour will no doubt be enjoying for many years to come. I’m also told nothing brings your Honour more joy than your tractor or makes you more impassioned than poor rainfall, feral pigs or leaking dams.
During your school years, your Honour possessed notable sporting and musical talent, playing hockey and the piano. Your Honour’s sporting focus has recently shifted to highly competitive corn in the hole. Your prowess with a bean bag is perhaps somewhat less outstanding than that previously displayed with a hockey stick, but your Honour’s enthusiasm continues to shine through. In retirement, I’m informed your Honour may be looking to enliven additional sporting skills, including by taking up golf. However, I understand your Honour is also looking forward to focusing on playing the piano again during retirement, and that your friends keenly await the showcasing of your Honour’s musical talent. There also appears to be calls for your Honour to write a book, unsurprisingly, on patents.
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 this Court. Your Honour’s commitment to the law can be seen in how you build up those around you, as well as your significant judgments. Your Honour provides an exceptional example. Your Honour, on behalf of the Attorney-General, the Australian Government and the Australian people, I thank you for the extraordinary contribution you’ve made to this Court and wish you all the very best as you commence the next chapter in your life. May it please the Court.
MORTIMER CJ: Thank you, Mr Blunn. Mr Dunning, immediate past President of the Australian Bar Association.
MR P. DUNNING KC: Justice Yates, Chief Justice Mortimer, Justices of the Federal Court, the distinguished members mentioned by my learned friend Mr Blunn, ladies and gentlemen. Justice Yates, it is my privilege and pleasure in equal measure to stand on behalf of Australia’s 7000 barristers and salute your Honour’s extraordinary public service to our national Court. Your Honour has been a Judge of this Court for all but 15 years, and distinguished years they have been. Your Honour on this Court, as at the Bar, is well known for your prowess in intellectual property, yet your Honour was a lawyer for all seasons, even doing some crime at the Bar.
And likewise on this Court, with its broad jurisdiction, your Honour’s contribution is far more than your extraordinary contribution to its intellectual property work, and indeed, the part this Court plays in bringing peace with our First Nations people. Might I say something of your Honour’s contribution to intellectual property. It is a matter that is important in a civil society such as ours. It protects commerce, it protects human ingenuity, and it underpins the lifestyle we lead and the liberal democracy that we enjoy. Your Honour, when you were sworn in with a humility that was customary of your time, Bar and Bench, your Honour said this:
On the first occasion that I have to make an address as a judge, I have no profound words to say.
Two matters might be observed. The first is that that remark was in no way perspicacious of what was to follow for the next 15 years. Your Honour’s contribution to the Court has been an extraordinary one. The second is that accuracy in that remark was a victim of humility. For those who go on to read the rest of your Honour’s address that day, it had many useful things to say. Importantly, your Honour noted the qualities of silk and the qualities that you had been the beneficiary of in your career of the Bar, and in particular, silks bearing the workload, taking responsibility for the case and taking responsibility for juniors when things didn’t go as they might have. They are the genuine qualities of a silk. That is why – not the only people who should populate Court – that’s why silks go on to make the extraordinary contribution they do to the life of the Court. Your Honour has been an exemplar of those qualities, not only at the Bar, but on the Bench. If I may say so, your Honour’s judicial life has been one well-lived.
Of course, the sort of success that your Honour enjoyed on this Court, and the success that your Honour enjoyed at the Bar that saw your appointment to this Court, is not the product of one person’s endeavour. Nobody could do this job without the love and support of those around them. Your wife, Leonie, and your daughters, Imogen and Sophie, should feel justifiable pride in today and in your Honour’s decades-long achievement. If I may take a brief indulgence, like your Honour, today is my last day for giving an address such as this, and Chief Justice, may I thank your Honour and the members of the Court for the very pleasant reception I have had for the last two years. Justice Yates, you are of course a product of the New South Wales Bar, and rightly, it is the New South Wales Bar today. So, without further ado, I salute you on behalf of the National Bar to pass to my learned friend Dr Higgins. May it please the Court.
MORTIMER CJ: Thank you, Mr Dunning. Dr Higgins, President of the New South Wales Bar Association.
DR R. HIGGINS SC: May it please the Court. I acknowledge the Gadigal people of the Eora Nation on whose lands we gather. I give my respect to their elders, past and present, and I extend that respect to all First Nations persons present today. Chief Justice Mortimer, it is an honour to speak on behalf of the New South Wales Bar Association to mark Justice Yates’s retirement from this Court and from a distinguished judicial life. Justice Yates, on behalf of the New South Wales Bar, thank you for your long and considerable service to the administration of justice. During the 15 years your Honour has sat on this Bench, the Barristers of this and other States have grown gladly accustomed to certain of your Honour’s defining characteristics. The first is a certain elegance that encompassed an elegant economy of expression. Your Honour never spoke excessively in any hearing. It seemed always that you had internalised Adam Smith’s insight, that value is a function of scarcity. As a result, Counsel measured your Honour’s words with obsessive care. In truth, Counsel measured the height and angle of your Honour’s eyebrows with equal care to discern precisely how any particular submission was being received.
This verbal economy did not prevent your Honour from slipping into the vernacular when effectiveness called for it. That was true both on the Bench and at the Bar. As a junior and senior Counsel, and later in this Court, your Honour, of course, specialised in Intellectual Property Law. At the bar, that frequently required your Honour to cross-examine witnesses in patent cases. As many here will know, in order for an invention to be patentable, it must, among other things, involve an inventive step, which it will be deemed to involve unless the invention would have been obvious to a person skilled in the relevant art. In one patent case, your Honour had been politely and carefully cross-examining the putative invention of a patent for some time. You then broke that flow, turned to the witness and said, “Your invention is actually pretty obvious, isn’t it?” Captured by the candour of this, the witness said, “Yep”. And that was that. The patent was revoked.
Nor did your Honour’s economy preclude lexical flexibility. Your Honour studied Russian as a young boy. While at the bar many decades later, you found yourself defending a claim brought by a Russian company. During the cross-examination of the plaintiff’s principal witness, your Honour noticed a discrepancy between the Russian name of the plaintiff and the English translation. That prompted your Honour, during an adjournment, to consult a fluent Russian-speaking friend to confirm your instincts. When the case resumed, the witness conceded that there had indeed been a mistranslation in the company’s title. The plaintiff, it turned out, had no standing to sue. That again was that. The second characteristic is courtesy. In 2019, your Honour was interviewed by Fiona Phillips for the Intellectual and Industrial Property Society of Australia and New Zealand. In that interview, you said this, and I quote:
Courtesy and civility are hallmarks of professionalism. And professionalism is vital to the proper functioning of our legal system, particularly in the way disputes are resolved in a court setting. Judges need assistance. The advocate who focuses on the legal issue and true merits of the client’s case provides that assistance and is the most effective advocate. On both sides, being even-tempered can be a bit challenging at times, but that is what we must strive to be. There must be a clear and public demonstration to litigants that their disputes are not being determined by passion or prejudice, but by reason and justice according to law.
These are, your Honour, enduring insights. The administration of justice should not be impersonal, because legal systems are made up of and determine the rights of persons. But it should always be impartial and as polite as circumstance permits. Litigation is a difficult enough endeavour without the clutter of discourtesy. Counsel appearing before your Honour knew that your Court would function effectively, efficiently, politely and with meticulous care. They also knew that your Honour expected integrity and excellence. That expectation was not made explicit. It was instead, conveyed by the manner in which your Honour conducted yourself. Nothing less would really do. The force of that example exercised a real discipline on counsel. It was a superb instantiation of judicial technique.
That held true also for litigants in person in your Honour’s Court. They especially could expect civility and care in exposition. In one case, the proprietor of some intellectual properties sought an urgent protective order against, as it turned out, a litigant in person. Counsel for the moving party had some apprehension about his unrepresented opponent, but equilibrium immediately prevailed. Your Honour engaged with the litigant persuasively and politely. Ultimately, the litigant happily consented to the orders pending a final hearing. The third characteristic is an expansive field of expertise. There were passages of your Honour’s reasons in the Full Court in ACCC v Metcash, which the competition lawyers present today can recite by heart. We really can. So, too, there are passages of Otsuka Pharmaceutical Company v Generic Health Proprietary Limited which the intellectual property lawyers present today can recite by heart.
Your Honour broke other ground, too. In Winnebago Industries Incorporated v Knott Investments Proprietary Limited, a passing off case, your Honour surveyed overseas authority to conclude that the user principle, sometimes used to assess Common Law damages, provided a principled basis to award damages in Australian intellectual property cases. That principle was thereafter adopted in the High Court, the Court of Appeal of New South Wales, and the High Court of New Zealand. The Corporations Law of this country also benefited from the Honour’s attention, including in significant cases such as ASIC v Whitebox Trading. Whatever the area of law, your Honour had the uncanny knack of leaving all involved, including losing Counsel, with the Goldilocks sense that you had got things just right. That is a happy quality in a Judge. From a young age, your Honour’s musical sense has been so precise that you can play songs on the piano by ear. Perhaps then, also, your Honour simply had a very good legal ear.
The fourth characteristic is collegiality. At your Honour’s swearing in, you endorsed the saying of Justice Handley: none of us is as good as all of us. That echoes Aristotle’s summation argument that the many are better than the few, or, as he put it, in the same way that a feast to which all contribute is better than one supplied at one man’s expense. Again, Counsel appearing before your Honour understood through example that the collaborative enterprise of the administration of justice goes best when we all do our best by each other. Your Honour’s brother and sister Judges speak with great warmth of a person whose profound ability did not affect his equally profound decency. So frequent were the visits of other Judges to your Honour’s chambers that you seldom had to leave your own chambers to visit them, leading to your Honour’s chambers being dubbed “The Cave.”
After almost 50 years of practicing law, your Honour now takes the truly inventive step into retirement. The 2019 interview you gave supplied hints of what this might involve. You spoke then of having a lifelong love of music and also of stargazing, which you declined to call astronomy in case it cast it in unduly grandiose light. Your Honour has been developing a small rural property into a small rural farm with your wife Leonie and the assistance of your daughters Imogen and Sophie. Music, the sky and the soil seem a good place to begin.
Justice Yates, the barristers of New South Wales will miss you, but we wish you contentment in everything you now choose to do. May it please the Court.
Thank you, Dr Higgins. Mr McIntyre, President of the Law Council of Australia.
MR G. McINTYRE SC: May it please the court. I echo the acknowledgements made of the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation. I also acknowledge your Honour the Chief Justice, and a large number of Justices, judicial officers presiding to mark your Honour Justice Yates’s farewell and the very large number of judicial officers sitting in the body of the court. It’s reflective of the respect with which your Honour is held by all. It’s a pleasure to be thanking your Honour for your service to the people of Australia, but it’s a bittersweet pleasure because while it’s an honour to be able to pay respect to your Honour and the legacy you’ve carved out, your passion, knowledge and dedication to our justice system will be sorely missed.
During your Honour’s swearing-in ceremony back in 2009, your work with the Law Council was noted, including your membership from 1990 to 1992 of the Law Council’s Intellectual Property Committee. In a beautiful circular moment, a current member of that committee recently had a chance to speak to your Honour’s contribution to the law at a dinner you attended. While many attributes were highlighted, I would particularly like to note the respect held by the profession for your Honour’s history in listening closely and respectfully to both sides of a case before reaching any conclusions. During the swearing-in ceremony, your Honour said:
I am very conscious of the great responsibility that is entrusted in those who judge.
Your Honour has shown time and again that you take that responsibility seriously. The trust of those who have come before you has been that you will be fair and considered in your decisions, and it has been well-earned, not just by you demonstrating those principles over more than a decade on the bench, but by maintaining them even as you became an experienced Jurist. Your commitment to getting to the heart of the matter, applying the essential principles and doing the right thing by the law and by the people has never waned, as illustrated by the case to which the Chief Justice referred. Perhaps the greatest tribute you can receive is that even those who appear before you on the losing side have only had good things to say about your Honour.
While your Honour is a leading expert in patent law, your contribution to the body of cases you have heard, as remarked upon by the Chief Justice, of course, is much broader, and will stand the test of time. Just in the last few months, matters before your Honour have been of significance and interest enough to be reported in the press and covered issues including both truth in advertising and major class actions. While your Honour is stepping down, your influence on the law will live on. You have been a generous mentor to many, including a number of your peers in this court. I will finish by lifting one more quote from your Honour’s swearing-in speech, during which you stated:
I do not think I could have followed any calling that was as interesting or as challenging or would have suited me better.
We also could not be more grateful that you pursued a career in the law rather than in music or in sport, and for the significant contribution you’ve made to the administration of justice in this country. It’s a great privilege to thank you for your service on behalf of the Australian legal profession, and wish you well in your retirement.
MORTIMER CJ: Thank you, Mr McIntyre. Mr McGrath, President of the Law Society of New South Wales.
MR B. McGRATH: May it please the court. Chief Justice, Justice Yates, Justices of the Federal Court, and distinguished guests, I too would like to adopt the expression of my learned friends in acknowledging the Gadigal of the Eora Nation, the traditional owners of the land on which this court stands. Justice Yates, as we have heard, had it not been for your Honour’s judgment per Winnebago, few would have appreciated the application of the English user principle in intellectual property cases in Australian law. Had it not been for your Honour’s judgments, few would have known your Honour’s predilection for the adverb “tolerably.” Had it not been for your Honour’s judgments, solicitors across practises in New South Wales would not have known the extent of your Honour’s sharp mind, its decisiveness and even-tempered courtesy judged by reason and justice according to law, a mind that, for decades, has cut to the crux of issues at hand and changed the course of people’s lives.
One New South Wales informant remembered working with your Honour, who was then a Senior Junior Barrister, in what is still a leading case on the question of obviousness in patents, AB Hässle v Alphapharm. She was grateful that the eventual High Court decision, after a huge amount of work, allowed her to annoy colleagues with recounting the win for:
At least a decade.
Another Senior Solicitor, also a Partner at a top firm, remembered when your Honour’s appointment was announced in 2009. She recalled ringing Blackstone Chambers to congratulate you, and she said she remembers it vividly:
You are going to be the most wonderful Judge because of your intellect, your humility and your decency.
She noted that your Honour has not disappointed. I can sincerely convey that those in Sydney and New South Wales Intellectual Property Fraternity are quietly heartbroken your Honour must retire. It was said that if there was a recent standout case for constitutional change around the number 70, your Honour is it. Your Honour has delivered tremendous judgments that bolster the reputation of this court nationally and internationally. Take a case like Sanda v PTTEP Australasia, as the Chief Justice mentioned, concerning the oil spill off Australia’s coast and its effects on 15,000 seaweed farmers in Indonesia. The meticulous 1171 paragraph judgment is a guide to excellent judicial reasoning. It is incisive, and it deals with the vast factual and legal questions clearly and effectively, and I have no doubt that it will be considered for years to come. Looked at another way, it’s an example of the human effort required for your Honour to produce that judgment that could be measured in the thousands of hours, dealing with dozens of experts, satellite imagery, oil chemistry, trajectory modelling, ocean currents modelling, flow rate equations, oil spill technology, toxicology, plant and algae biology, just to name some aspects. Never mind the human, the economic, or the legal arguments. And the fact that when months of hearings were over, all of the experts left, and it was left to you. This is why we may forget – or this is what we may forget, I should say, on this side the bar table. It is that first moment when one inevitably thinks, “Where do I start?” Where do you really start? Your Honour said it is like hitting a wall with a sledgehammer. You just keep hitting it. There’s no end to it. And then, one day, you take a hit, and you start to see a crack. It gets bigger and bigger and bigger.
Years before, partway through this same demanding process in the Apple v Samsung patent wars, with perhaps 60 lawyers on each side, after months of hearings, sitting alongside the then Honourable Justice Annabelle Bennett AC SC, and some of the way into writing your judgment, your Honour found out the matter had settled. Many will remember the case. What they may not remember is that your Honour has said that you didn’t quite believe it.
At first, I was stunned. And then I just closed the door. I just closed the door for about an hour and sat in silence. I wasn’t unhappy about it; I still had a lot more to write. But I’d written a lot.
I know that in 2015, the Honourable Justice Bennett counted that case as among the most memorable in her almost 13 years on the Federal Court Bench. Now, going back to Wednesday, 2 December 2009, towards the end of your Honour’s swearing in speech, your Honour said, and I quote, “It’s work that I want to do.” These may seem like innocuous words to pull out of a speech that covered three decades of high-level legal work, but the simple fact is that all these years later, I know that those words have remained true for your Honour.
Now, there is humour at the end. I know that your Honour is both a lover of music and perhaps something of a grammarian. And one of your Honour’s final cases concerned American pop idol Katy Perry, whose hits include Hot N Cold, with the letter N rather than a conjunction or ampersand between the words, and California Gurls, where girls is spelt G-u-r-l-s. Despite being one of the best-selling musical artists of all time, no doubt your Honour was forced to use the term “sic” as a tool in that case on more than one occasion.
All those present in this Court and the solicitors of NSW have been given an opportunity to understand the law, not simply to know it, but to understand it from the immaculate work your Honour has done in the Federal Court of Australia. Top solicitors in this state said to the Law Society of New South Wales that they have been dreading this moment. It has caused our members to reflect and realise the extraordinary contribution your Honour has made to this Court. And whatever comes next, on behalf of the Law Society of New South Wales, thank you, your Honour, for your steadfast commitment and contribution to the law of our nation. As the Court pleases.
MORTIMER CJ: Thank you, Mr McGrath. Justice Yates, I invite you to reply.
YATES J: Chief Justice Gageler and Judges of the High Court; Chief Justice Bell; Justice Ward, President of the Court of Appeal, and Judges of the Court of Appeal and the Supreme Court of New South Wales; Justice Preston, Chief Judge of the Land and Environment Court of New South Wales; Judges of the District Court of New South Wales; former Judges of this Court and of the Federal Circuit and Family Court of Australia; members of the Administrative Review Tribunal; members of the legal profession; family and friends. Thank you for joining me to celebrate this occasion. I, too, acknowledge the traditional custodians of the land on which we meet, the Gadigal of the Eora Nation, and pay my respects to their elders past and present. Thank you, Chief Justice, Mr Blunn, Mr Dunning, Dr Higgins, Mr McIntyre and Mr McGrath, for your very generous and kind remarks.
I remember my ceremonial welcome to the Court 15 years ago, as if it were yesterday. It was the day after my 55th birthday. It was a very exciting but daunting occasion. Although it seems as if it were yesterday, much time has passed. Many of the people present on that occasion are here today. Sadly, some who were present on that occasion are no longer with us. Time is a traveller.
When I started at the Court, I had little idea of what it would be like to be a Judge. I had a vague idea, of course, but I was not sure what this new life would bring. I soon came to realise that it was a life that I was going to like very much. I found my fellow Judges, not only in New South Wales but throughout the Commonwealth, to be welcoming and supportive. I also found them to be dedicated to the pursuit of excellence in their work. I found the work to be important, interesting and exciting, as I hoped it would be. Although I enjoyed my previous legal life as a solicitor for some five years, and then as a barrister for 27 years, I found this new life to be one that suited me best. But I realised, of course, that my time as a Judge would be finite. And so we are here today.
I am very grateful for the opportunity that was given to me 15 years ago. I value the collegiate life I have experienced and the friendships I have formed within the Court. I value the professionalism of my colleagues, both past and present. I respect them, and I am honoured that so many of them are present, sitting with me today in Court. So it is with some sadness that this is the last occasion I can do that.
But I also realise and accept that Courts, like all institutions, are only as good as those who are their human dimension. Courts need constant and timely renewal. To that end, I support my own judicial demise. I can say truthfully that, although I am sad to go, I do not feel the need to hang on for my own sake. This is the perfect time to go. In doing so, I leave with a great sense of satisfaction. If I were permitted to write my own report card, then I would like to think that I passed the test of being a Judge with the letters PSA. When speaking of tests, those letters mean different things to medical practitioners and lawyers. To patent lawyers, they mean the person skilled in the art. By definition, the person skilled in the art is someone who has the knowledge of the calling and who is competent, but utterly uninventive.
In giving judgment in a case, I have tried to come to the correct legal result competently with the knowledge of the calling. In giving reasons, I have endeavoured to explain the results in terms which, when fairly understood, are in fact, unsurprising. People need to know why they lose their cases. So far as possible, they need to know that their loss was not an aberration or arrived at idiosyncratically.
My time in the Court has been assisted by wonderful Registry staff and Court Officers. It has been a privilege to work with our talented Registrars, national and State, judicial and non-judicial. I am grateful for the assistance provided by our New South Wales District Registrar, Paul Farrell, over the last few years.
In my time, the Court has had two energetic and resourceful Principal Registrars, Warwick Soden and Sia Lagos. The Court has benefited greatly from their vision, talented administration, and sheer hard work.
In her previous role as National Operations Registrar, Sia, amongst other duties, maintained a watchful eye over Judges’ dockets to ensure that they were full, but not such as to overburden individual Judges into a state of paralysis. I am very grateful for her watchful eye over my docket and for the open and friendly relationship we had and still have.
I have had the privilege, with a handful of other Judges sitting on the Court, of serving under four of this Court’s five Chief Justices. Each has been uniquely different, but all have had a single-minded dedication to the advancement of the Court as an institution of excellence, both nationally and internationally. All have had an abiding concern for the welfare of the Judges serving with them.
One of the great joys of being a Judge in this Court is the relationship the Judges have with Associates. By that I mean all Associates, not only those on the Judge’s personal staff. They are the colour and movement of the back office. They are gifted, energetic, funny, and great fun to be with. My own 15 Associates have been the best Associates any Judge could have hoped for. Twelve are personally present today, some having travelled from the United Kingdom to be here. Eleven of them are sitting in the gallery, once again keeping an eye on me, hoping I do not make a wrong move, ready to spring into action if I do. Three are watching the live stream of this ceremony from Luxembourg, Cambridge and Adelaide. I wish to mention all of them. I will use the names by which we knew them in Chambers, starting with my first Associate: Sophie Williams, Dan Lim, Theo Souris, Tash Dwyer, Nesha Balasubramanian, Jack Oakley, Raff Piccolo, Will Slattery, Jaslyn Ng, Roseanna Bricknell, Rosie Short, Georgie Juszczyk, Rachel Chalmers, Lily Brennan-Xie and Maddi Gogoll, who is sitting at the Associates table to my right. To all of you, thank you for being my Associates. Each of you is unique and special. I have learned much from you, and I am grateful for your dedication, hard work, and for putting up with me.
Finally, I want to I recognise, in particular, my wonderful Executive Assistant, Mary Nekic, who is also sitting at the Associates table to Maddi’s right. She probably hates me for saying that. Mary has been my Executive Assistant for each day of my 15 years as a Judge. For 10 years before that, she was the Executive Assistant to other Judges of the Court. She is peerless. Apart from her wonderful secretarial and organisation skills, she has filled chambers with her happiness and calmness each day. She is the person who brings order to chaos. She has been a great friend to me and the Associates, and I dare say a mother figure to the Associates as well. I will miss working with her greatly.
I am pleased that my own family is here to join me in celebrating this occasion. My brother Ray and sister-in-law Kerrie have travelled from Queensland. My three girls are here: Leonie, my wife and the love of my life, and our two daughters, both of whom happen to be lawyers. Imogen is a solicitor in London and has travelled over the weekend to be here today. Sophie is at the Bar and has not travelled quite as far, but she has come from the Northern Beaches. The love and support of the three of them has been the real highlight of my life.
When I was in high school, I was introduced to Lord Tennyson’s great poem Ulysses. Many of you will know it. It is a high Victorian dramatic monologue in which the narrator, Ulysses, speaks of his disquiet about his retirement. He decides that he has one last voyage in him, so he casts off for a new adventure.
I am no Ulysses, and I am certainly not the poet’s Ulysses. But there are two important lessons to learn from the poem. The first is that we are not defined by age, but by who we are. The second is that life is not to be endured, but to be lived. It is never too late to begin your next adventure. I am going to hold on to those lessons very tightly.
Once again, thank you all for sharing this special occasion with me.
MORTIMER CJ: Thank you, Justice Yates. The Court will now adjourn.
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