Ceremonial Sitting of the Full Court
For the Welcome of the Honourable Justice Burley
Transcript of proceedings
RTF version - 390 kbTHE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE FARRELL
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE PERRY
THE HONOURABLE JUSTICE GLEESON
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE BROMWICH
THE HONOURABLE JUSTICE BURLEY
SYDNEY
9.30 AM, MONDAY, 23 MAY 2016
BURLEY J: Chief Justice, I have the honour to announce that I have received a commission from his Excellency the Governor General of the Commonwealth of Australia appointing me a Judge of the Federal Court of Australia. I now present my commission.
ALLSOP CJ: Thank you, Justice Burley. Registrar, please read the commission aloud.
DISTRICT REGISTRAR: Commission of appointment of a Judge of the Federal Court of Australia, I, General, the Honourable Sir Peter Cosgrove AK MC retired, Governor-General of the Commonwealth of Australia acting with the advice of the federal executive council and under section 72 of the Constitution subsection 6 (1) of the Federal Court of Australia Act 1976 appoint Stephen Carey George Burley learned in the law to be Judge of the Federal Court of Australia assigned to the Sydney registry commencing on 23 May 2016 until he attains the age of 70 years. Signed and sealed with the Great Seal of Australia on 5 May 2016. Peter Cosgrove, Governor-General by his Excellency's command George Brandis QC, Attorney General.
ALLSOP CJ: Thank you, Registrar. Justice Burley, would you please take the affirmation of office. Thank you.
BURLEY J: I, Stephen Carey George Burley, do solemnly and sincerely promise and declare that I will bear true allegiance to Her Majesty, Queen Elizabeth II, her heirs and successors according to law and I will well and truly serve her in the office of Judge of the Federal Court of Australia and that I will do right to all manner of people according to the law without fear or favour, affection or ill-will.
ALLSOP CJ: I now invite you to subscribe the affirmation of office.
Registrar, I have returned the commission and the signed and witnessed affirmation of office. Please record them in the records of the Court.
Justice Burley, it gives great pleasure to welcome you to the Court on behalf of all the Judges of the Court. We hope – we look forward to many years of service with you. And welcome.
Mr Attorney.
MR G. BRANDIS QC: May it please the Court. It's a pleasure to be here today to congratulate your Honour on behalf of the Australian Government and the Australian people on your appointment as a Judge of the Federal Court of Australia. Your Honour's appointment to this Court is another significant achievement in an already illustrious career and it is a testament to the esteem in which your Honour is held that so many members of the judiciary and the legal profession and other dignitaries are gathered here today. May I begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation.
I also acknowledge the presence in the courtroom of the Chief Justice of the Supreme Court of New South Wales, the Honourable Tom Bathurst, the president of the New South Wales Court of Appeal, the Honourable Margaret Beazley, members of the New South Wales Court of Appeal and Supreme Court, members of the Federal Circuit Court, leaders of the legal profession, in particular, Mr Clark, the president of the Law Council of Australia, Ms Loukas SC, who appears on behalf of the Australian Bar Association and the New South Wales Bar Association, and Ms Wright on behalf of the Law Society of New South Wales. I also acknowledge the many retired members of the judiciary who are gathered in the courtroom this morning, including the Honourable Dyson Heydon.
I acknowledge the presence of your Honour's family who proudly share this occasion with you. Your mother, Nan, your wife, Annabelle, your children David and George, and your brother, Matthew, and sister, Alison. Unfortunately, I'm told your Honour's daughter Pip cannot be here today as she is studying in Germany. Your Honour was born and raised about 40 minutes away in Turramurra and completed your primary education at Turramurra South Primary School and your secondary education at Turramurra High School. I'm told your Honour played the euphonium in the school band and that you maintain a close connection with your band master, Peter Walmsley OAM, who I understand is in Court today as well.
Your Honour studied arts and law at the Sydney University where you continued, as well, with your studies of music, completing the Australian Music Board examination in 1983 and playing in the Willoughby brass band. At university you met your wife Annabelle, a pharmacy student also from Turramurra. Your Honour graduated from the University of Sydney in 1983 as Bachelor of Arts and in 1985 as Bachelor of Laws. In 1987 you were admitted to practise as a solicitor of the Supreme Court of New South Wales. Your Honour commenced your career as a solicitor with the firm Hunt & Hunt where you practised in the areas of banking and finance.
Early in your career your Honour took an interest in intellectual property, and in 1988 you moved to London in order to study a Master of Laws at the London School of Economics and Political Science. You completed a Masters degree in 1989 and were admitted that year as a solicitor of the High Court of England and Wales. Between 1989 and 1992 your Honour practised as an IP practitioner at the firm Farrer & Company in London. You returned to Sydney and in 1993 you were admitted to the Bar. Your career at the Bar commenced at 5 Wentworth Chambers, a chambers founded by Sir Garfield Barwick. You read with the Honourable Steven Rares and the Honourable David Yates, whom you will now join on this Court.
As your academic interests had indicated, at the Bar you developed a specialisation in intellectual property law, particularly trademark, patent and copyright, both at trial and appellant level. As junior counsel your Honour appeared in the celebrated series of cases associated with Hoffmann-La Roche v New England Biolabs. Your Honour enlisted the help of your father Ralph, a scientist at the CSIRO to explain the technical scientific matters in the case. You took silk in 2007 and appeared as lead counsel for Apple between 2011 and 2014 in their dispute with Samsung Electronics. Your Honour appeared before Justice Bennett in Samsung v Apple and also in the subsequent appeal to the Full Court of the Federal Court.
This was the largest patent case ever to be heard in Australia at the time, and still is. It is fitting, therefore, that you should take the place of Justice Bennett on this Court. I'm told that the Honourable Annabelle Bennett is also here this morning. Let me speak for a moment on a service to the legal profession and the community. Since 2011 you have been a board director of the Asthma Foundation of New South Wales, now known as the Asthma Foundation of New South Wales and Queensland. Your Honour has also been a member of the Intellectual Property Committee of the Law Council of Australia since 2011. Outside the rigours of your busy IP practice it's no surprise to learn that your Honour enjoys music.
Your three children, Pip, David and George, also share this passion and, I am told, are accomplished musicians. Your Honour's other great loves are your family and travel. In 2004, while still junior counsel, you took three months off work to travel around the outback with Annabelle and the children. In more recent years the Burley family has travelled to destinations as various as Myanmar and Norway. In addition, I understand your Honour is a keen skier and tennis player and has taken up fly fishing. As one of Australia's premier litigators your Honour has demonstrated an incisive intellect and discerning judgment throughout your career.
You will bring invaluable experience in this Court's difficult and important intellectual property jurisdictions. The qualities that served you as a litigator will, I am sure, serve you well in what will be a long and distinguished judicial career. So on behalf of the Australia Government, and on my own behalf, may I extend our warmest congratulations and welcome you to the Federal Court of Australia. May it please the Court.
ALLSOP CJ: Mr Clark, on behalf of the Law Council.
MR S. CLARK AM: May it please the Court. I too acknowledge the traditional custodians of the land on which we meet and pay my respects to their elders, both past and present. It gives me great pleasure today to speak on behalf of the Law Council of Australia and its constituent bodies, the Australian Bars, the State and Territory Law Societies and Law Firms Australia. Your Honour has made a considerable contribution to the Law Council through its business law section and as the attorney has noted, through the intellectual property committee, the patents and the courts and procedures subcommittees. Your advice is always informed and practical, especially on how the courts might react to certain proposals.
The paper you gave to a Law Council, Federal Court workshop last year on the direction of intellectual property was exceptionally well received and marked you a deep thinker in this area of the law. It will make illuminating reading in years to come. In fact, your ties to the Federal Court run deep. As the attorney has noted, when you came to the Bar in 1983, you read with both Justice Rares and Justice Yates as they now are, and you were given your red bag by the former Justice Bennett who was on the same floor as you before she joined this Court, and you perhaps spent more time in this Court than many others, perhaps any other, especially during the marathon of Apple v Samsung, which the attorney has already noted was heard by Justices Bennett and Yates.
Now, that litigation was fought out, as we know, on no less than six countries, or in no less than six countries, but Australia was different. Australia was the only jurisdiction to engage in hot-tubbing. As those in the Court today will know, this is the process that allows multiple expert witnesses to testify simultaneously and became a real favourite of Justice Bennett. I am told that one of her fondest memories was having three French professors of law in her hot tub during Apple v Samsung. She thanks you. Your Honour's skill in the conduct of complex litigation has been demonstrated in patent litigation across a range of science and technology. The list is long. Pharmaceuticals, telecommunications, electronics, engineering, gaming and business systems.
You argued Australia's first colour trademark case, which was Woolworths, Australia's first shape trademark case, Kenman Kandy v Registrar of Trademarks, and of course the first case to consider geographical indications under the Trademarks Act, Rothbury Wines. You have also enjoyed considerable success as an appellate advocate, including in the High Court in IceTV on copyright and in Health World on trademarks. However, your instructing solicitors have noted that you have a real – or had a real liking for interlocutory work. It was the challenge of getting on top of a brief quickly, and the promise of a short, sharp battle. The grin as you entered Court on such occasions was a dead giveaway.
Perhaps the chief justice has a volunteer for urgent ex parte applications on the weekend. For your part, your Honour, it was never to be anything else but the law and the Bar. I'm reliably informed that when you were just eight years of age, you announced that you wanted to join a profession where you could talk all day. However, while the law has consumed you professionally, you have maintained, as we have heard, a wide range of other interests, with music and travel being most prominent. Unlike many lawyers, however, you don't need to always travel in style. The attorney has referred to your lengthy trip across Australia, and I am told that involved no less than 76 days of straight camping before you arrived at the Cable Beach Inn for a break.
Your Honour is a good tennis and a good squash player, and a determined skier. Despite working your way through multiple pairs of Maui Jim sunglasses and using a knee brace, you have retained your enthusiasm. Your Honour also enjoys fly fishing as we have heard, usually on a boat you share with three friends. Now, this is the bit where no one having a bad word to say about your Honour falls down. I am told that your companions have learned to take evasive action when your Honour is casting. "He's a pleasure to work with," reported one, "but a danger to fish with." The remarkable gathering today, your Honour, is a tribute to your Honour's standing as a lawyer and as a member of the community, as the attorney has referred. The Law Council and it's 65,000 members look forward to the contribution you will make to this Court, and to the administration of justice in this country. If the Court pleases.
ALLSOP CJ: Ms Loukas on behalf of the New South Wales Bar.
MS C. LOUKAS SC: May it please the Court. I begin by acknowledging the Gadigal people of the Eora Nation, the traditional custodians on the land on which this Court stands, and pay my respects to their elders past and present. Chief Justice Allsop, distinguished guests, there is a great symmetry to this appointment. A little over two months ago, the Federal Court marked the retirement of the Honourable Justice Annabelle Bennett, a distinguished member of the Bench with charm, tact, intelligence and unfailing politeness who raised the profile of the Court both nationally and internationally through innovation in the practice and procedure of intellectual property cases. Today, we welcome her worthy replacement, the Honourable Justice Stephen Burley, prudent, polished, erudite, and a pre-eminent member of Sydney's intellectual property bar.
On behalf of the Australian and New South Wales Bar Associations, particularly those who practice regularly in the Federal Court, I congratulate the Attorney-General for this appointment, which ensures that there will be no diminution of the intellectual property credentials of this Court. The Bar is delighted, to say the least. Justice Burley, you once described practicing at the Bar as 'one of the world's best kept secrets'. The junior to whom you said this later gazed upon her windowless cubicle and wondered exactly what you meant. Your Honour was referring, of course, to that elusive equilibrium, the so-called work-life balance. Former colleagues in both branches of the profession admire your ability to step away from your practice and devote time to your family as we have heard from the attorney and Mr Clark.
Your Honour loved the Bar, loved being a barrister, and loved your professional home on 5 Wentworth. This was apparent to those around you. Your Honour was always a model of professional courtesy, even by the standards of the notoriously polite intellectual property Bar, which learnt at the feet of David Catterns QC. You were uncommonly generous to your opponents, some of whom received compliments verbally or by email for arguments and submissions well made. Your Honour is an outstanding cross-examiner and a superb orator. One junior commented that the transcripts of your oral arguments read like a book. You are seen as urbane, affable and having a remarkably even temperament. I am told that during the mammoth Apple v Samsung litigation, an assortment of IT enthusiasts and curious onlookers who wouldn't normally attend a hearing were so impressed with your Court craft they posted gushing praise online.
Each time your very experienced opponent argued a hard thought point, one blogger in particular would give a gushing recount of the response by the "handsome and tall Mr Burley". Intellectual property cases, due to their complexity, often require multiple counsel and a large team of supporting solicitors. Often during Apple v Samsung, a 'crucible of crisis', as your Honour liked to say, you displayed in spades those quintessential qualities of a silk. Through calm leadership, you kept juniors and solicitors on task and displayed full confidence in the thoroughness of their submissions. In this and in other such cases, your Honour is said to have inspired many solicitors to come to the Bar. The attorney and Mr Clark have recited some of the leading intellectual property cases in which your Honour has appeared and I shall not add to that list.
As we have also heard from the attorney, your Honour graduated from the University of Sydney and the College of Law and then went to London to complete a Master of Laws at the London School of Economics. In 1990, you went to work at Farrer & Co at Lincoln's Inn Fields. This was no start up enterprise. The firm was established in 1701 and has counted Charles Dickens and members of the royal family on its long list of prestigious clients. By the time you returned to Australia at the end of 1992, your CV included referees such as Sir Matthew Farrer KCVO. Your Honour began practicing at the New South Wales Bar, as we have heard, in 1993, and as has been mentioned, you read with now Justices Rares and Yates.
You took a room on 5 Wentworth where your Honour stayed until the time of your appointment. Your Honour took silk in 2007 and continued to rise to join Catterns QC as one of the pre-eminent intellectual property silks at the Sydney Bar. The Bar Association has reminded me that your Honour was tutor to a remarkable number of juniors. Each was invited to dinner at your home and welcomed into an extended family in chambers. All I have spoken to commend your exceptional sense of collegiality and generosity with your time. You have taken part in Bench and Bar tennis tournaments. Indeed, together with the honourable Justice Michael Wigney, you were a joint winner of the Bench and Bar tennis tournament some years ago.
Seeking further information about your Honour's aptitude on a different Court, we contacted Justice Wigney. His Honour pleaded that he couldn't possibly defame anyone but did say that for an intellectual property barrister; your Honour had an uncharacteristically aggressive serve and volley game. To be sure, your Honour's decision to join the Bench of the Federal Court is a cause for genuine sadness on 5 Wentworth. Nevertheless, there's an overwhelming acceptance that this is an excellent appointment. The Bar expresses complete confidence in your Honour's ability to fulfil the duties that lie before you. Justice Burley, the Bar congratulates you. May it please the Court.
ALLSOP CJ: Ms Wright, on behalf of the New South Wales Law Society.
MS P. WRIGHT: May it please the Court. I would like to acknowledge the traditional owners of this land and pay my respects to its elders, past and present. It gives me great pleasure to address the Court this morning on behalf of the solicitors of New South Wales. I wish not only to congratulate your Honour on this much deserved appointment, but also to communicate the thanks and well wishes of the State's solicitors on a career that has been characterised by deep respect and cooperation at all levels of the legal profession.
Your Honour has been particularly known for your approachability and availability to instructing solicitors. Solicitors reminisce fondly about the long, lavish lunches you would habitually host to celebrate the end of big cases, win, lose or draw, and during these lunches, everybody on your team from the partner right through to the most junior of solicitors felt personally thanked and felt that their input had been genuinely appreciated. But your Honour's popularity is, of course, not solely among those who have instructed you. One solicitor reported that everyone in the internal IP Bar seems to know you or know of you, and the verdict is unanimous, as has been said; "How could anyone not like him," are the words that have been used.
Justice Rares, with whom your Honour read, cites your even temperament, intelligence and ability to work diligently under pressure as distinguishing your Honour as a silk, and Justice Yates, with whom your Honour also read, has remarked that as a reader, you displayed valuable insight, even very young, insights which even then made it clear that you would develop into a really persuasive advocate, which proved true.
Previous speakers have referred to your time at Hunt & Hunt solicitors. It was here that you met Jan Redfern, the Deputy President of the AAT, Fiona Bowring-Greer of the Commonwealth Ombudsman's office, Louise Donoghue SC and Mary McGlinchey Donaldson, and those who knew you at that time speak fondly of your nickname "Hurly" as in "Hurly, Burly, what a girlie", I'm told. Working as a young solicitor can be a somewhat unglamorous task. It's a little known fact that while at Hunt & Hunt, your Honour and a fellow young solicitor gained confidence in scrutinising regulations, not just by studying legislation, but by examining the provisions of the Hunt & Hunt staff manual.
Apparently, the two of you discovered that every solicitor worked long hours, until 6 pm, in those days, that qualified for one frozen Light n' Easy meal from the communal office freezer. So your Honour and your colleague would arrive at about 6.01 pm, faint from hunger, and gleefully select from the vast array of beef or chicken. Another little known fact in keeping with your Honour's clearly humble and acetic existence at that time is that in 1987 you donned a monk's garb, complete with interesting accoutrement at the Hunt & Hunt Christmas party.
I hasten to warn your Honour that your colleagues from that time do have photographic evidence. As has been mentioned, your Honour had the rather splendid opportunity to work at Farrer & Co in the UK, which in its 300-year history has represented the University of Oxford, Charles Dickens and the Queen, but what hasn't been mentioned is that it also represented, perhaps somewhat less illustriously, the News of the World.
I mentioned earlier that your Honour read with Justice Yates. Years later, your Honour would appear on the other side of the courtroom from him, and he affirms that your manner whilst firmly prosecuting your client's cause was always courteous and fair. And one colleague remarks that you have the quiet reserve of a sophisticated advocate, but it's a quiet reserve that spells danger. Your Honour is reputed to be an aficionado of the polite but deadly cross-examination technique.
The practice of a young solicitor, as your Honour will recall, may be at times singularly lacking in glamour, but so too are certain elements of an IP practice at the Bar. One memorable occasion was a case before Justice Rares which involved a dispute over a contraption used to repair sewer pipes and whether it infringed upon the patent of the other party. Of course, the resolution of this dispute required the device to be brought into the courtroom. Your Honour and David Catterns QC were asking the experts in their hot tub to explain the particular tool's features. Although the sewer part had been thoroughly cleaned, at least one of the experts was not quite convinced it had been completely sterilised.
After both experts had handled it, Justice Rares, hoping to proceed with the hearing, asked, "Have you finished? Can it be returned now" One said, promptly, "Yes," but the other said, inspecting his hand somewhat gingerly – said, "Actually, may we have a break for a minute or so, so we can wash our hands?" But your Honour's readers have remarked, a little sheepishly, that they began to look upon you like a dad at the Bar. Well, that makes your Honour the proud father of at least a dozen over the last – of your practice at the Bar. Your Honour has tutored an estimated 12 readers, and your generous mentoring didn't benefit just barristers either.
During the Apple v Samsung litigation that has been mentioned, the team at Herbert Smith Freehills developed a deep rapport with your Honour, which is much appreciated by all of them. In Court, your Honour had such confidence in that team that you could be handed written submissions on a point devised sometimes by a junior solicitor moments before rising to argue them with consummate fluency, showing confidence that they would be excellent.
Now, this isn't just a testament to their diligence, but it's also to the atmosphere of confidence and high quality work which your Honour created within your team. As for your colleagues at 5th Floor Wentworth Chambers, they're pleased that after 23 years of looking out a bank of air-conditioners in the well of the Wentworth Selbourne building, your Honour will finally have a view. Your father Ralph was a prominent biologist whose seminal work was a study into the inner workings of the avian egg. This is fitting, as it's somewhat reminiscent of your predecessor Justice Bennett's own studies into the chick embryo liver before she was on the Bench.
When your Honour was five or six, you attended school in Boston for some time as your father worked at Harvard University. I'm told he would often whistle one of the Brandenburg Concertos about the house when you and your siblings Matthew and Alison were growing up. Thus, your father stirred in your Honour both a fondness for classical music and an awareness of scientific detail which lent itself well to your practice as a barrister. At high school your Honour's private euphonium lessons enabled you to join not only the school band but also the acclaimed Willoughby City Band. It was with this band that you toured New Zealand, won the national championships, and it was American composer Philip Sousa who said, "A band is only as good as its euphonium section." So we can take that his victories are an endorsement of your Honour's abilities.
Your Honour's mother Nan, a registered nurse, is a volunteer for CanSupport of many years and has edited a book devoted to advising those touched by cancer. It was also your parents who inspired in you the love of travel and adventure that you share with your family to this day. Your siblings tell me that there is a famous photograph of you in the family collection standing triumphant at the top of Mount Taranaki volcano in New Zealand at the age of eight, and one close colleague has described your wife Annabelle, a pharmacist, as a sea of calm in your Honour's life, and her support has been invaluable to you.
Although your daughter Pip is in Germany at the University of Regensburg, you do have with you a worthy stand-in for her, your exchange student Antonia. I must confess that more than one informant has touched on your Honour's singular sense of humour, communicated largely through what can be described as "dad jokes". When your colleagues celebrated your Honour's appointment with champagne in chambers, you made was what reported to have been a particularly notable dad joke to which the congregation gave the customary groan. One colleague piped up, "What's going to happen now that you're on the Bench? It will be all, That's hilarious, your Honour."
Your Honour, it was your early ability and thorough grasp on intellectual property law which set you on your pathway to success, but it was your diligence, inclusivity and dedicated sense of cooperation with both the solicitors and barristers around you which made you truly invaluable to the intellectual property bar. It's the same sense of diligent engagement with others which will serve you as a Judge. On the Bench I have no doubt that your Honour will be fair, engaged and astute. I congratulate you once more on behalf of the solicitors of New South Wales and wish you very well for your time in the Bench. As the Court pleases.
ALLSOP CJ: Justice Burley.
BURLEY J: Chief Justice, Chief Justice Bathurst, President of the New South Wales Court of Appeal Justice Beazley, fellow judges, distinguished guests, colleagues, friends and family. It's well that I have a right of reply. Thank you all for doing me the honour in taking time out from your busy lives to attend today and share this moment with me, particularly those of you who have travelled interstate. Can I thank in particular Attorney-General for the Commonwealth, Mr Brandis, Mr Clark, Ms Loukas and Ms Wright for their kind and eloquent airbrushing of my personal history. I do take certain unwarranted pride in the thought that I might be the only euphophonist appointed to the Court, if not the only, then I doubt that there will be enough to make up a Full Court, let alone a ceremonial sitting.
In truth, I stand as the slightly scruffy product of a certain lack of focus at High School followed by a series of most fortunate events that led me here. But I'm grateful to you all for emphasising the other aspects of my past, although not perhaps the monk's habit, the hot tub which I never got into, and evasive action for fishing, I know who you are. In these, my first words as a Judge, I'm afraid that I do not have anything particularly profound to say. Although one of the many things that I have learned over the years is how painful catfish poison is. I will return to that later. One grows up with the tools that one develops in childhood, and I have had the benefit of being the youngest child of three with loving, academically focused parents.
My father was a thoughtful and somewhat reserved research scientist who specialised in protein chemistry, as you have heard, and my mother worked as a nurse and is a lively and inquisitive person. Biology, chemistry and science were routine topics of dinner conversation, which, as you can imagine, was exuberant. Dad's magnum opus, the Avian Egg, was something of a best seller within the narrow confines of a particular group of protein chemists. But with such a background, I was able later to realise that often the key to understanding legal, scientific or technical concepts was to listen carefully to any explanation offered without being deterred by what at first seemed impenetrable language.
I landed up with a particular interest in intellectual property, mainly as a result of my parents first drawing a connection between the euphonium and copyright. Yes, there is one, if you think about it. That planted the seed early in my education as a lawyer. The euphonium, as you have heard, was also important for a number of respects, in particular, because Willoughby Municipal Band in the 1970s and 80s was populated by many talented present and budding professional musicians. I lurked in the background as a journeyman player, but under the guidance of Peter Walmsley, who as you have heard, is here today, and I'm delighted for that, I learned the joy of working in an ensemble with people who regard excellence as being the only standard to seek.
In 1987, I found myself one wintry evening at the offices of Hunt & Hunt working as a solicitor doing banking and finance and commercial property work. In despair, I decided that a change was necessary, that I would shave my head, get a tattoo on it and go and do a masters degree in intellectual property in London. I had the courage only to do two of those things, so I went to London for four glorious years of work and study. I did shave my head.
I would not mention the steps that took me from there to now, except that by mentioning some, it gives me an opportunity to express my deep gratitude to some of those who have helped me along the way.
After three years in London, Annabelle and I were preparing to return to Sydney for a holiday and to get married.
I rang a good friend of mine who had recently joined the Bar to ask whether I should give it a try myself. He said in words which you have heard from Ms Wright I have quoted since, "The Bar is the world's best kept secret. It's great fun." And as you have heard, I have followed that advice myself and it rings in my ears every time I am asked for similar advice by a young colleague. The friend of whom I have spoken is our dear friend and colleague, Robert Dubler of Senior Counsel who is now struggling for his life after a bad surfing accident last weekend. My thoughts are with him today and with his family.
A friend in London had suggested that a bloke called David Catterns led the field in intellectual property and I should go and see if he would be my tutor. David and I met, and I recall that we had a conversation in words to the following effect.
I said, "Any chance that I might read with you in 1993?" He said, "I would love you to, darling, but I have been told that I will get the nod for silk next year. Why don't you go and see Yatesy?" For accuracy, I should recall that David may have called me "princess". Although I think that name came a little later in our relationship, when we had done many cases together. David has been a giant of the intellectual property bar for 30 years, and is notable for his devastating charm and equally devastating intellect. He has set for the standard for civilised and yet hard fought intellectual property litigation in Australia.
Of course, Yatesy was David Yates, now a member of this Court. He agreed to meet me back in 1991 and to be my tutor. When my reader's year concluded, David rashly offered a lifetime warranty on the training. Little did he know what that meant, and I'm delighted to know that in my new role as a Judge, I will be occupying the room next door to Justice Yates, and I look forward to continuing to benefit from that promise.
I also read with Steven Rares who provided me training in non-intellectual property areas, as befitted his enormous and wide ranging practice at the Bar. Whilst he has offered no express lifetime warranty, I have taken it to be implied by conduct and also look forward to learning from him while I'm at the Bench.
When I came to the Bar, I landed on the doorstep of 5th floor Wentworth Chambers, about which I knew nothing, but which took me in. That wonderful floor has been my professional home for the last 23 years, and I shall miss the diverse personalities, the professional assistance, the corridor cricket and the desktop table tennis that it has provided. I know that the friendships I have made on the floor will endure this change. My particular thanks go to our floor leader, John Sheahan, to Michael Heath for not telling half the stories that he could have to those preparing my biographical details and our clerk, Trish Hoff. In singling out those three, I do not mean to diminish the affection I hold for the other unnamed but cherished friends on the floor.
Among the members of the floor when I joined was a very busy junior named Annabelle Bennett who was then developing a strong practice in patent work. I worked with Annabelle as her junior for the following 10 years until she was cruelly taken from the Bar to join this Court. I cannot say how much I learned from the experience of working with Annabelle. I quickly decided I could not possibly emulate Annabelle's style, energy, speed of thought, speed of speech or style in footwear. But to the extent that I have developed any skills as a barrister, much is attributable to that valuable time and Annabelle's generous friendship, encouragement and training.
When my appointment to this Court was announced a couple of weeks ago, it was said that I was to fill the vacancy occasioned by Justice Bennett's resignation from the Court. Of course, no more could it be said that I will fill that vacancy as a Judge then it can be said that I will fill her stilettoed shoes. Hers is simply too hard an act to follow. However, I will try my best.
Practice at the Bar notoriously involves high points and the odd low point. One Wednesday evening in about 2010, I was playing tennis when the Achilles tendon in my left foot snapped. I was due to take judgment in a large patent case the next day, and so I hobbled into Court only to learn that my client had comprehensively lost the case.
I didn't think that it could get much worse than that, until one Saturday some weeks later when I was on crutches, I went fishing on the Hawkesbury River with my son George. In extracting a hook from the mouth of a catfish with my bare hands, I was stabbed by its dorsal spine. Yes, I know, a rookie error. Anyone here would have taken a cloth to wrap around their hand. As everyone here also no doubt knows, the cure to catfish poison is to pour boiling water on to the wound, but I was too timid to get the water hot enough, with the result that the pain endured for several hours. I was in Court before Justice Yates in a case about furniture on the Monday. My Sunday preparation on crutches with a catfish hand was bad enough, but hobbling around Court with catfish hand and crutches exceeded levels of pathos that even the most abject counsel would not stoop.
In some ways, this event led to a kind of personal catfish rumination, and then revelation. Despite the odd low point, not usually as extreme as that, I have always loved practice at the Bar. It provides opportunities for intellectual rigour, teamwork and talking, all of which are quite attractive to me. The catfish experiences are not optional, but for the main part they can be borne.
In the context of teamwork, I've been extremely fortunate in the solicitors with whom I've worked. Litigation solicitors make up the engine room for the conduct of litigation in our system, and a good symbiotic relationship between solicitors and counsel is essential.
I've found the quality of solicitors and patent attorneys and trademark attorneys with whom I've worked to be outstanding. In the Apple v Samsung litigation, from my perspective, the teamwork between the solicitors, attorneys and counsel there were superb. It made what could have been a traumatic three or four years hard work, but good fun.
I've worked with a number of talented readers and juniors and taken a rather immodest pride in seeing many of them rise in stature and ability as they've gained experience. I will not single out any for specific mention, but will miss the fun of our strategic and legal discussions, as well as their camaraderie. I will enjoy watching them develop further from a slightly different perspective.
I've thanked many in the course of this address, but the ones for whom thanks does not begin to be enough is my family. My father is sadly no longer alive, but I take comfort in the knowledge that this would be a day in which he would take considerable pride, as does my mother, who is here in the front row.
No doubt my father would say, after the ceremony was over, that my swearing in speech was the best that he heard me give all day. He was always positive in that sort of way. My mother has nurtured and encouraged my every move, and between them they provided the ideal role models. Also here are my siblings, Matthew and Alison, and my extended family. I take great pleasure in the fact that we can enjoy this occasion together.
My immediate family has been responsible for keeping me relatively well-grounded over the years, and I'm confident that they will continue to do so. In 2007, when I took silk, Phillipa, David and George decided that the initials SC stood for "silly cow". I'm grateful that they did not select some of the available alternatives. More recently, we've had a jurisdictional dispute at home, and I've been informed that the judicial power of the Commonwealth does not extend to the dinner table. That's a shame, because I felt sure that David's objections to my taking the last lamb cutlet was not properly taken and ought to have been overruled. Regrettably, I have found there is no avenue of appeal.
I've variously been told over the years by the children in the refreshing blunt argot of the young that "cool technology is wasted on old people" and that "modesty is the new arrogance", whatever that means. No doubt similar observations and expressions will continue to keep me grounded.
I'm tremendously proud of each of my children and the choices that they have made. In particular, they have developed a keen appreciation for the delivery of puns, which I know will also be well appreciated in my Court. As you have heard, Pip cannot be here today because she is currently studying in Germany, but I take comfort in the fact that she is here in spirit and will soon be watching the DVD and buying the T-shirt. Given that this is a modern Court I have no doubt the event will be posted on social media.
My final but most important thanks goes to my wife, Annabelle, who has negotiated the maze of life with me for the last 32 years or so. Without her none of this would have happened, and such success as I have achieved is due to her. Words cannot adequately express my love or encapsulate my gratitude.
Finally, I would like to express my unbridled enthusiasm for the task that lies ahead. I look forward to the many challenges that it will present. The members of the Court have been generous in welcoming me here, and I am deeply sensible of the honour of joining this Court, which continues in a tradition that can be traced back to the likes of Justices Sheppard, Lockhart, Lehane and Hely. I can but try to emulate that example.
ALLSOP CJ: The Court will now adjourn.
