Ceremonial Sitting of the Full Court

Honour has been a member of this court since 2005, an appointment which followed a long and productive career in practice as a solicitor during which you specialised in the fields of intellectual property, competition law, but particularly commercial litigation. I must confess, when your Honour first came to the bench I did not really know you, my having worked at Feez Ruthning and you at Morris Fletcher & Cross.

I inquired of my father, then a senior solicitor, about you. His description was short and simple; you were the best corporate lawyer in the state. While that pithy description has proved accurate during your time on the bench, your Honour has many other attributes which I will take this opportunity to expand upon today. After a short stint working in the United States of America, you joined the firm Morris Fletcher & Cross, now MinterEllison. Quite extraordinarily, you became a partner at the age of 28. Your career at that firm was a distinguished one where you were at the forefront of some of the most important commercial matters in the country. The only black mark on your Honour’s career was that you facilitated Alan Bond taking over Castlemaine Perkins. However, the Lang Park clientele has long forgiven you for this cultural infraction.

Your role as a partner at that major law firm, and later as a judge of this court allowed your Honour to mentor numerous young members of the legal fraternity. This has involved your Honour offering not only professional guidance, but also genuine friendship both to solicitors and to members of the bar. That mentorship has included a number of younger members of the Queensland Supreme Court. Your Honour has consistently demonstrated a commitment to assist those starting out in their careers. It is a commitment that you have always taken seriously and for the benefit of the larger profession. In addition, it is important to acknowledge how your Honour has conducted yourself as a judge over the 17 year term of your appointment.

Both at trial and at appellate level, your Honour has displayed unwavering politeness and courtesy to those who have appeared in front of you. You have always been known as a Judge who has allowed practitioners the opportunity to properly develop their case theory and articulate their arguments. This, of course, did not mean that you always agreed with those case theories or those arguments. Rather, it was a recognition by you that the rule of law is best served by allowing all litigants the opportunity to fairly put their case. That servility has always been the hallmark of your Court. That this is so is unsurprising, as it simply reflects how your Honour uniformly treats others outside of the court environment. Your Honour, of course, has made a significant contribution to the jurisprudence of this country. The role of the Federal Court as the national Court of the Commonwealth is an important one.

On nationally important areas such as native title determinations and trade practice, corporation and intellectual property disputes, whether at trial or at appellate level, your Honour has spoken with authority. As but two examples, I firstly note your Honour formed part of the majority in the appellate decision in Cassimatis v ASIC, which explored the ambit and operation of director’s duties in Australia following on from the important trial decision of Justice Edelman. In Brown (on behalf of the Ngarla People) v Western Australia, your Honour and the other members of the Full Court explored the intersection between native title and executive and legislative power of the States.

Your Honour, of course, is a true polymath. You were renowned for your diverse interests. They range from music, particularly classical, mathematics, science, history, international political relations, and, as a true Queenslander, sports. No doubt your Honour’s intellectual inquisitive life was influenced by your father, Professor Gordon Greenwood, and your Mother, Thora Greenwood. Your father was Professor of History and International Relations and head of the History Department at the University of Queensland for many years. With your siblings, it was a household which encouraged intellectual exploration and achievement. Despite having been educated in the liberal humanities, your Honour has always had an abiding interest in mathematical and scientific matters.

This interest has resulted in, amongst other things, your correspondence over a number of years with Professor Zee from the University of California in relation to quantum physics. Indeed, Professor Zee sent you the text of his latest work on quantum field theory for your pre-publication lay comments. Your Honour has always been a popular judge. While as not necessarily a mathematical metric which is able to be measured, your Honour leaves the bench with the sincere affection and respect of the Bar. In taking your appointment, your Honour took on a life of public service. Your 17 years of faithful and efficient service stands as a testament that you have delivered on that obligation.

I should say, finally, it would be remiss of me not to also acknowledge that your Honour has always been supported by your wife, Ulla, in all your endeavours. It has been a true partnership of equals throughout your time on the Bench. On behalf of the Australian Bar Association, but particularly the Queensland Bar Association, we thank you for this and we wish to wish – sorry, we wish you and your family the best in your retirement. May it please the Court.

KENNY ACJ: Thank you, Mr Sullivan. I now invite Mr Luke Murphy, President-Elect of the Law Council of Australia, to address the Court.

MR L. MURPHY: May it please the Court. I first acknowledge the Jagera and Turrbal people as the traditional owners of the land and waters where Brisbane City is situated today, and pay my respects to elders, past, present and emerging. I also acknowledge all judicial officers, dignitaries, family, friends and, most of all, your Honour, Justice Greenwood. I am honoured to appear on behalf of the national legal profession to congratulate you on an exemplary career. I understand your Honour is known to quote Winston Churchill, and one of Mr Churchill’s quotes is very apt on this occasion. He is attributed to have said: we make a living by what we get. We make a life by what we give”.

Your Honour, in marking your retirement from the bench today, we, in reality, are acknowledging how much you have given to so many and the life made as a result. There is no doubt, as we have heard, you have given plenty to the profession, for which it thanks you. The details of your contribution have already been addressed and will be by Ms Thompson. I will not repeat them. However, as my appearance this afternoon is in my capacity at the Law Council of Australia. It would be remiss not to acknowledge and thank your Honour for the contribution you made to the policy work of the Law Council during your professional career prior to your judicial appointment. When a practising solicitor, your Honour accepted the position of Queensland Convenor of the Law Council’s Intellectual Property and Trade Practices Committees. The Law Council thanks you for this contribution.

Your Honour, you have tirelessly served the people of Queensland and the broader Australian community as a Federal Court Judge since 2005 and, as we have heard, in a number of other Tribunals. You have also contributed to the education of the next generation of solicitors and barristers through your work at our law schools. The community, your Honour, is better for your considerable contribution. On the occasion of the Council of Griffith University conferring upon you an honorary degree of Doctor of the University, your Honour said, when encouraging consideration of societal change and I quote:

I trust, as your Honour moves into the next stage of your career, you have more time to embrace your clear passion for reading – although in doing so, there may be some who hold concerns as to how much more force you may acquire. On behalf of the Australian Legal Profession, I thank you most sincerely for the numerous contributions you have made and I wish you well for your retirement. May it please the Court.

KENNY ACJ: Thank you, Mr Murphy. May I invite Ms Kara Thomson, President of the Queensland Law Society, to address the Court.

MS K. THOMSON: May it please the Court. I am absolutely thrilled to be here this afternoon to acknowledge the profound service to the Australian people your Honour has performed as a Justice of this honourable Court. It is my particularly pleasant duty to bring the thanks and admiration of the solicitors of Queensland on this occasion to a trailblazing Queensland Solicitor who has brought so much credit to this Court, the cause of the Federal Jurisdiction and the people we all serve. The record shows your Honour has been discharging the judicial power of the Commonwealth with absolute distinction. Your Honour’s contribution to the administration of justice is prodigious and significant.

In addition to your Honour’s many roles on tribunals, such as President of the Copywrite Tribunal, your Honour has authored more than 630 single Judge decisions and participated in over 190 joint judgments. Your Honour has performed the role of Acting Chief Justice on a number of occasions with acclaim and is recognised as a leader in the Brisbane Registry, as has already been acknowledged this afternoon. Your Honour has a strong and abiding respect for the Federal Jurisdiction. It has travelled with you for most of your professional career. In your solicitor’s practice,

you uniquely had a strong focus on federal law. Your Honour was one of a few who could maintain an intellectual property practice in Brisbane at the very highest levels and always had an eye to what specialty the market would come to need, rather than what was reported in the newspaper of the day.

Your Honour was always one who was proactive with opportunities and could seemingly sense the future and be at the forefront of events. This uncanny ability led you to many high profile cases in the High Court on a number of occasions. Your Honour is said to have even had a hand in creating the literary genre of “faction” for one notable matter. Given your Honour’s powerful intellect, love of the law and prodigious worth ethic, it was fitting and only appropriate that your Honour should ascend to the Federal Court.

A review of your published speeches speaks volumes of your Honour’s powerful academic abilities and abiding regard for the Federal Court, the Constitution, Mabo and perhaps even the vibe. Your Honour has described with real affinity and authority on occasions how chapter 3 of the Constitution is key in the way in which it vests the judicial power of the Commonwealth through section 71. This is a foundational subject which appears to be very close to your Honour’s heart and the perfect news for the Judge of this honourable Court. The law and its development is a masterful subject for your Honour and one which is well-known to be one of your passions.

I will not recite your Honour’s formidable CV, but I do have some elements to note. Your former partners and colleagues at Morris Fletcher & Cross and later, MinterEllison, recall most fondly your inquisitorial mind, passion for learning and vibrant, youthful approach to life. You were said to have fostered mediocracy, being always hard-working and yet easy to talk to, perhaps even the senior partner who was most favoured for approachability for junior lawyers. Your colleagues recall fondly the Christmas party where your Honour was taken to the Bonhomie, that you sat down at the piano and you started to tinkle with such skilful deftness that many were taken by surprise.

Your Honour is not a man to be underestimated, whether you were leading with a red line at a fireside team retreat in the Granite Belt accompanied by the strains of Jeff Buckley or having a hand in creating a trust for the welfare of children orphaned in maritime misadventure in the Torres Strait Islands. Your Honour was always the consummate professional and adept in any situation. Some colleagues recall journeying with your Honour to events, never being completely certain where the journey may conclude, such was your Honour’s natural curiosity and love of detours. There is no end to the wealth of positive sentiments and fond memories your colleagues carry with them to this day, and their esteem is very well-placed. Senior solicitors have remarked to me that your Honour is a great lover of the law in all its forces and complexities. They also note that with real respect that your Honour’s genuine humanity and approachability has remained throughout your judicial career and is brought to all the matters before you.

Your Honour’s nature is evidenced so well by your continued engagement with the Queensland Law Society and dedication to the ceremonies and institution of Queensland and Federal Courts. Throughout your entire professional life, your Honour has maintained engagement and relationship with the Queensland Law Society from 1976 to this day. Following 30 years of membership, your Honour has kindly accepted honorary membership of the society from July 2006. This form of membership is only available to those who the council deems to have made a significant contribution to the Law Society or the legal profession in Queensland.

In addition, your Honour has in past times been a member of the Law Society’s Intellectual Property Committee and spoken at our modern advocate lecture series, to connect and grow the next generation of advocates from both branches of the profession. We have been fortunate to have the pleasure of your presence at our dinners, events, our functions. And it is a matter of real and genuine pride for us that your Honour has always taken pride in being a Queensland solicitor. On behalf of the solicitors of Queensland, I extend the highest regard and the best wishes from the profession to your Honour on your retirement from the Bench. We hope retirement provides opportunities for reflection on your extraordinary career, but invigorates you for yet another chapter, as we are sure you are not yet done. May it please the Court.

KENNY ACJ: Thank you, Ms Thomson. I now invite Justice Greenwood to reply.

GREENWOOD J: Well, Acting Chief Justice Kenny, Chief Justice Kiefel of the High Court, Justices Keane and Edelman, the Honourable Dame Quentin Bryce, Chief Justice Bowskill of the Supreme Court, President of the Court of Appeal Justice Mullins, Judges of Appeal, Judges of the Supreme Court, Judges of the Federal Court and Family Court of Australia Divisions 1 and 2, Judges of the District Court, Judges of other Courts and members of Tribunals and retired Judges, thank you all very much for doing me the honour of attending this ceremony today. I know there are many demands on people’s time.

I too acknowledge the traditional owners of the lands on which we gather and the elders who speak for them. Justice Kenny, thank you for your warm remarks, your wonderful collegiality in the long period we have been together on this Court and for your enthusiastic willingness to come to Brisbane today from Melbourne to preside on this sitting as the Court’s Acting Chief Justice. I appreciate it very much.

Thank you, Ms Lye, for your kind remarks and I am so pleased that you are able to speak on behalf of the Attorney today, as we have had the great pleasure of seeing you in a range of matters on behalf of the Commonwealth in this very courtroom. It just seems so appropriate. Thank you very much. Mr Sullivan, thank you for your generous remarks. Can I say that it has been a great professional pleasure for me getting to know you during this period of your presidency of the Bar Association. It has been a very nice thing. Mr Murphy, thank you for your remarks. We have come to know each other a little more over recent years.

The Law Council of Australia will be in very fine leadership hands indeed during your upcoming term as President. Thank you very much. Ms Thompson, thank you for your kind remarks. Ms Thompson, I think I can be permitted the indulgence on an occasion such as this, having come to this role from amongst your members, of saying that I have seen you speak on behalf of the Law Society in a number of forums during your presidency on matters of contemporary importance involving issues related to the law and society and other things. And your thoughtful remarks have always been absolutely excellent, apart from the obvious exaggerations today.

Every young lawyer needs a mentor in the profession. Someone who invests their faith in them with no real basis for doing so other than intuition and judgment and being willing to give a young lawyer an opportunity. I was lucky enough to have a few such persons. I will mention them, at the great risk of failing to mention others, shortly. However, I think occasions like this are the right time to recognise the help given especially in the early part of a young lawyer’s career. Could I begin, however, by thanking the Honourable Dame Quentin Bryce for not only being here today, but also for the lovely text you sent me recently. I greatly appreciate it. You were my tutor at the very beginning of the law course in first year. I enjoyed every one of those tutorials.

You had taken an outstanding degree in law at the University of Queensland. I came to know you and Michael in a professional and personal capacity over the years. And can I remind those who already know and tell those who do not that Michael Bryce was an outstanding design architect with a first order international reputation. It was a great pleasure to work with him. Apart from being very talented, he was a very decent person. I undertook articles of clerkship at Feez Ruthning in the days before that firm became part of Allens as the precursor to its current incarnation. We enjoy seeing Ken MacDonald and Marion Gibney regularly. They are in isolation due to COVID, but I think they may be watching this online if the IT is working well.

When I was undertaking articles, Ken had just been made a partner in the firm. I simply want to say to Ken; thank you for putting up with me in those days. I worked for a brief period for a solicitor called Ray Bradley, who was the father of a close friend of mine, Bill, from university. I had agreed to work for Mr Bradley immediately upon my return from overseas. I liked him a lot. He was a clever man in very many ways. He acted for FAI Insurance, controlled by Larry Adler and then by Larry Adler’s son, Rodney Adler. They were definitely not easy people. It was interesting to see the mercurial way Mr Bradley engaged with that organisation and those people. Interestingly enough, Wayne Goss worked there at the time, which is when I first got to know him.

Larry Adler was one of that collection of people from around about that time who were very odd commercial people. There was Laurie Connell and John Spalvins and many others. But they were not easy people to deal with. In May 1978, I went to work at Morris Fletcher & Cross. In May 1980, I was made a partner of the firm. When I went to work at Morris Fletcher & Cross, it was nothing short of a litigation powerhouse. Tony Atkinson acted in many defamation cases and had acted in a number of commissions of inquiry. He had been awarded a distinguished flying cross during the second world war for an amazing act of valour. He was flying Catalinas, often called flying boats because they land on water, on a particular mission. Another plane in the group of Catalinas had been shot down. He landed his plane under enemy fire at sea, rescued the airmen, and took of under enemy fire. He was a formidable man of great principle.

Neil Roberts literally commanded the practice of insolvency in Brisbane at that time. He had acted in many large scale demanding insolvencies and regularly acted for the banks in receiverships. He was also responsible for the conduct of some very significant commercial litigation. He did a lot of work with the dominant administrators of the day, Mr Graham Tucker and Mr Ray Peldon. Ron Ashton acted for all the major insurers, and I think many of the reinsurers. He had, even at that time, a national reputation in insurance issues. David Marshall, who Ulla and I came to know well together with his wife Elizabeth, had a significant tax practice and also conducted tax litigation. Doug Jones had already developed a significant commercial arbitration practice. Ultimately Doug would take off in a different direction.

Apart from these very fine lawyers, John Nosworthy was the senior partner, and he was appointed one of the foundational commissioners of the National Companies and Securities Commission. Elizabeth Nosworthy was a partner in the firm, and even then she was conducting elaborate, sophisticated financing transactions. I do not know any other lawyer in Australia at that time who was advising the lead issuer on Euro bond issues. In the commercial area, Paul Lee had achieved the distinction of acting for the lenders in what was described by the Wall Street Journal as one of the largest word-wide commercial transactions at the time. The transaction was the sale by General Electric of Utah’s Queensland Coal assets to the BHP Group, and Paul Lee was acting for the lenders to the transaction. The transaction involved $2.6 billion US and was the biggest commercial transaction in the world at that time. Settlement took place in New York. Paul told me that he had to acquire two sea chests to bring the security documents back to Australia.

Although Paul Lee was not involved in litigation, he would participate in a decision with Neil Roberts which proved to be very important in my career. I’m mentioning these lawyers for two reasons. When I came into this environment in 1978 as a young employed lawyer, I was thrown into a range of significant commercial litigation, many schemes or arrangements, takeovers, and acting in all aspects of insolvency practice of Neil Roberts. Within a period of two years, they decided to take a punt on me. I think I can fairly say that had it not been for the willingness of Neil Roberts to get behind a young lawyer at that time, I may well have not have been here at least by that route, and probably not at all.

The second reason I mention these things is that Neil Roberts and Paul Lee had the capacity to come to the critical realisation at the very beginning of the 1980s that the future is not what it used to be. They had the judgment to see the face of things to come. In that practice, as good as it was, we had no presence in competition law. In the United States, of course, there had been decades of experience with beautifully simple statutes like the Clayton and Sherman Acts, and much antitrust writing, in particular the works of Areeda. There were many formidable American Academics in this area, and I was lucky enough to get to know a number of them. The firm had no presence in 1980 except in an episodic way in intellectual property.

After about two months, or about two months after I was made a partner, we had one of those all-day meetings one Saturday at the Park Royal Hotel, and we talked about the areas of the firm’s professional practice and the plans for the future. I suggested quietly, and a little reluctantly as the newest person in the room, that we probably needed to become familiar with especially copyright law, but all aspects of intellectual property, including, of course, trademarks and patents. I also suggested that we needed to become familiar with the Trade Practices regime. The Trade Practices Act had only relatively recently been enacted. It seemed to me that with all the great learning and writing in the United States on antitrust and aspect of intellectual property, great learning was available to us. I remember that there was a certain level of silence, and then John Nosworthy, in that direct way which was typical of him, simply said “well, why don’t you do it?” And I said “I would be happy to have a go, but we would need to build a significant research library in these areas”.

Neil Roberts and Paul Lee may well not now remember this, but about four weeks or so after that meeting I had a meeting with them and pressed a point about the need to build resources if we were going to seriously try and move into this area of the law. In a remarkable act of financial decision making, which I am quite sure could not possibly happen in the big national law firms these days, they simply said “buy what you need”. So I did. I bought every English textbook on copyright patents and trademarks and designs. I bought the Fleet Street Reports, the Reports of Patent Cases. I bought Nimmer from the United States on copyright and many other texts. I bought other material published by Matthew Bender. In the competition area, I bought all the major United States texts and joined the American Bar Association committees.

It seemed to me that if we were going to have any presence in competition law, we would need to properly understand concepts of markets, rivalry, substitution possibilities, contestability, how expert evidence might be engaged, and from a particular litigation perspective, what foundation of facts would we need to be able to prove when considering how the Act might apply. What did the concept of a substantial lessening of competition in a market really mean. But, for Neil Roberts and Paul Lee supporting these extravagant steps, things might have been very different. That is what I mean when I say that Neil Roberts and Paul Lee could see the face of things to come, and they understood that the future as it seemed to be was not what it used to be.

Although I did not work directly for Ron Ashton, I have the highest regard for him, and I am so pleased that he is here. As things transpired, the practice grew in these areas quite substantially. We used to describe the practice group as a mezzanine between commercial work and litigation work. When I say “we”, I mean the firm in a broad sense. But in a much more direct sense, I mean Khory McCormick and me. Khory McCormick was in that group with me throughout, and the focus of his work, obviously enough, was a little different. But for many, many years, I was in the trenches with Khory McCormick, and in a professional and personal sense, we looked after each other, and I’m so grateful for that. I want to mention two other people in this context. One is Mark Carkeet. I had quite a lot to do with Mark in relation to the National Electricity Market, which I was involved with at that particular point.

He is one of the finest lawyers in Australia on energy markets. I also want to mention David O’Brien, who is a very fine lawyer, and has been Chairman of MinterEllison throughout these very difficult COVID years. He has also written an excellent book on applications for special leave to appeal to a High Court. In the conduct of litigation as a solicitor, I had the great benefit of working with some truly wonderful Senior and Junior counsel. They included David F Jackson and Bill Pincus, particularly in the commercial work which had formed the core of Neil Robertson’s practice. And I also worked with Ian Callinan, especially in the work being undertaken by Tony Atkinson.

I also worked and learned a lot from John Byrne and John Dowsett. Chief Justice Kiefel might recall our venture into the copyright in sound recordings in proceedings before Justice Spender. I also learned a great deal, of course, from the late Bruce McPherson. How could anyone not? The focus upon developing a first-class research library, at least in the parts of the discipline of particular interest to me, causes me to reflect upon the critical importance of our great universities. I’m so pleased that the Vice Chancellors of Griffith University and The University of Queensland are here today. My father was the Professor of History and International Relations at The University of Queensland.

And I come from a tradition which places a very high value not only on tertiary education at the highest level, but on the importance and value to the society of independent thinking within the universities, and the role of universities in challenging orthodoxy. Sections of the community might not like that, but out universities provide the dynamic elasticity a society needs to be able to absorb challenging thinking and adapt. Nothing can be taken for granted. After the Act of Supremacy in 1534, as a result of which Henry VIII became the head of the church in England, the monasteries began to be formally dissolved. There were many steps along the way, especially with the passage of an Act called an Act for the Dissolution of the Lesser Monasteries in 1536.

The larger monastic houses thought they could secure an accommodation with Thomas Cromwell. But then an Act for the Dissolution of the Greater Monasteries came to pass in 1539, which brought about the destruction of Glastonbury and its very great collection of books. It should be remembered that Glastonbury has a very long tradition: Alfred the Great is buried there. And when the question is asked, “And did those feet, in ancient time, walk upon England’s pastures green”, the question is being asked of the pastures of Glastonbury. The same fate befell the other large monastic institutions throughout England, notably at Canterbury.

I’m not suggesting that the universities are facing such a change, but nothing can be taken for granted in maintaining the rigorous standards necessary. The University of Queensland and Griffith University stand for very important values in our society: access to quality education is the road to freedom. I would like to thank the Senate and the Council of those universities for awarding the Honorary Doctorates. We are very fortunate to live in a constitutional democracy governed by the rule of law. We have a written instrument which provides for the distribution of power between the constituent polities. We have an independent, robust and uncorrupted judiciary which construes the instrument.

And we have a body of jurisprudence, developed especially in the last decade or so, which recognises that, in the face of enormous complexity of executive government, principles of the law which are designed to ensure that the repository of power stays within the limits of the conferred power is central to the rights of the citizen. We are talking, here, about the exercise of public power. Many of us, I am sure, were aghast at watching congressional leaders and the Vice President rushed down a corridor to a safe room in the basement of the Capitol, when the riots occurred. How important it is to live in a society where those in government relinquish power as a result of the exercise of the franchise at the ballot box, rather than as a function of Mr Putin’s rockets, tanks and soldiers.

How lucky are we, as citizens and young and older lawyers in this country, to live in a constitutional democracy. When my grandfather was a young man, he went to French fields in the First World War. When I was at the National War Memorial Museum as part of a Judge’s conference in Canberra in early 2020, I saw one of the landing barges for the Gallipoli beaches, which had been preserved. It’s full of very large bullet holes, as the young men were fired upon when trying to reach the beaches. When I was 26, I went to work at Morris Fletcher & Cross. I could have been in a French field, or on the Turkish beaches.

I have been on this Court for 17 years. Not one of those years – not one day of those years – could I have done this work, or enjoyed this life – and my professional life before appointment – had it not been for Ulla. These things are ultimately intensely personal matters. I met Ulla in 1976. I remember precisely when and where I met her, and I immediately knew that we would be living our lives together. I cannot understate the depths of the bond between us, and everything she means to me. She also had a career as a lawyer in Government, and an excellent one. She’s a better lawyer than me. I also want to thank our family, all of whom have been so supportive of each other.

Our family is particularly close. I want to thank my sister, Helen, who is the eldest, and her husband, Jeffrey. As the youngest of four children, I have always regarded Helen as my second mother. My brother, David, died at the age of 56. His wife,