Ceremonial Sitting of the Full Court

To welcome the Honourable Justice Jackman

Transcript of proceedings

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9.30 AM, THURSDAY, 23 MARCH 2023

ALLSOP CJ: Welcome to this ceremonial sitting to welcome Justice Jackman to the Court. May I first acknowledge the traditional custodians of the land on which we meet, the Gadigal People of the Eora Nation and pay my respects to their elders past, present and emerging. May I acknowledge the presence here today, Justice Jackman, of your close family: your wife Nicola, your son Ewan and daughter Hazel, and aunt Mrs Rowena Danziger and your brother and sisters-in-law. I also acknowledge the former Prime Minister, the Honourable Tony Abbott AC, the Honourable Justices Gleeson and Jagot of the High Court, Chief Justice Alstergren AO, Chief Justice Bell, President Ward, the many Judges of the Court of Appeal of the Supreme Court and the Land and Environment Court, former justices of the High Court the Honourable William Gummow AC KC, the Honourable Dyson Heydon KC, former Judges of the Federal Court of Australia, the Honourable Peter Jacobson KC, the Honourable Dennis Cowdroy AO KC and the Honourable Alan Robertson SC and your many, many professional and personal friends here today.

Justice Jackman, you have been discharging your duties with the expected dispatch and clarity for which you were appointed. Welcome to the Court. On behalf of all the Judges of the Court, many of whom are here today, we extend our warmest welcome to you and my only regret about your appointment is that I will not be Chief Justice for very long while you are on the Court. Thank you. Thank you for taking the appointment and thank you for the work you have done since being sworn in.

Ms Jane Supit, Senior Executive Lawyer at the Australian Government Solicitor, representing the Attorney-General.

MS J. SUPIT: May it please the Court. I would also like to begin by acknowledging the Gadigal People of the Eora Nation, the traditional custodians of this land and pay my respects to their elders past and present. I would also like to extend that respect to any Aboriginal and Torres Strait Islander peoples who are present today. It is a great privilege to be here today on behalf of the Australian Government and the Australian people to congratulate your Honour on your appointment as a Justice of the Federal Court of Australia. The Attorney-General, the Honourable Mark Dreyfus KC MP, regrets that Parliament sitting means he cannot be here today. He has, however, asked that I convey the Australian Government’s sincere appreciation for your Honour’s willingness to serve as a Judge of this Court and that I pass on his best wishes for what he trusts will be a distinguished career on the Bench.

Your Honour’s appointment to this Court is another success in a distinguished and eminent career. That so many of your colleagues in the judiciary and the legal profession are here today is testament to the high regard in which your colleagues hold your Honour. May I particularly also acknowledge the Honourable Tony Abbott AC, former Prime Minister of Australia, the Honourable Justice Jacqueline Gleeson, Justice of the High Court of Australia, the Honourable Justice Jayne Jagot, Justice of the High Court of Australia, the Honourable Chief Justice William Alstergren AO, Chief Justice of the Federal Circuit and Family Court, the Honourable Chief Justice Andrew Bell, Chief Justice of the Supreme Court of New South Wales, the Honourable Justice Julie Kathryn Ward, President of the Court of Appeal Supreme Court of New South Wales, 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, including your wife Nicola, together with two of your four children, Ewan and Hazel, who are here today. Your sons, Alexander and Nick, are currently in the UK and are therefore unable to join us, but I am sure they are very proud of this milestone. I also acknowledge other members of your extended family and your close friends who join today. Your Honour’s achievements and the contributions you have made to the law are indicative of your exceptional and singular dedication, however, time does not permit a full exposition of all of your achievements. Therefore, today I will focus on some key achievements that have marked your distinguished career to date.

Your Honour was born in England and migrated with your family to Australia as ten-pound Poms at the age of four. I’m told that you still remember travelling through the Suez Canal. Your Honour wholeheartedly grasped the opportunities that Australia presented, playing rugby and cricket and participating in school plays. As a student, you set yourself the challenge of reading 100 books in a year. This, I am told, is a challenge you ably met and your love of reading continues to this day. While at secondary school, your Honour was vice-captain and dux achieving the second highest HSC mark in New South Wales at the time. Your Honour’s academic record is certainly impressive. In 1984 your Honour graduated with a Bachelor of Arts with first class honours from the University of Sydney. The following year your Honour won the Rhodes Scholarship for New South Wales.

At Oxford, your Honour completed, first, a Bachelor of Arts in Jurisprudence, graduating with first class honours and then the Bachelor of Civil Law. Your Honour was highly awarded with various accolades during these years, both as an academic receiving the Gibbs Prize in Law at Oxford and as a sportsman. Your Honour played for the Sydney University Football Club and at Oxford earned a prize oar blade rowing for your college in the annual Torpids Regatta. Upon returning to Australia, your Honour served as Associate to the Honourable William Gummow AC KC then a Justice of the Federal Court. This was, no doubt, a formative experience which provided you with many valuable insights into the workings of the Court. In 1989, your Honour went to the Bar and you took silk in 2002. Your Honour has contributed greatly to the Bar, and you have devoted yourself to serving the profession and the community. Many have observed that your Honour has built an impressive practice in company law and quickly developed a reputation as both a fantastic all-rounder and a fearsome cross-examiner.

Your Honour’s former colleagues described you as a great leader who led with dedication and by example. Your Honour’s knowledge and steadfastness is also exhibited in the published and reported cases in which your Honour has appeared which number over 900. Many of these were challenging and high-profile cases spread across the Federal Court’s various practice areas. For example, your Honour once cross-examined a defendant for six days in minute detail about the subject matter of the case. Such was the detailed preparation by the legal team that I understand it has inspired a collegiate and lasting bond where the team meets annually. Since that case, your Honour has represented many high-profile clients to much acclaim. The Sydney Morning Herald spoke of your nimble work in the courtroom and you were known as “the total package” and a “go-to barrister”, “one of the most impressive performers at the Sydney Bar”.

Your Honour has also published in many scholarly journals and has issued two editions of The Varieties of Restitution which has been published extensively in both Australia and the United Kingdom. Indeed, I am told that your work is of such enduring significance that your son was recently tasked with reading Restitution for Wrongs, your 1989 article for the Cambridge Law Journal as part of his own studies at Oxford. It is with great pleasure that I now turn to speak of a few of your personal qualities that have led to your appointment to this Court. Throughout your career, your Honour has been known both personally and professionally as a person of great intellect and humour, integrity and philanthropic generosity. Despite your busy schedule, your Honour has found time for your passion for sport, cricket and rugby among other things, and for supporting various charitable organisations.

This has seen you participating in charity events, coaching children’s teams and organising the Lady Bradman Cup cricket match on behalf of the New South Wales Bar Association which drew a number of esteemed participants including Justice Bell and Justice Lee. I am also told of your Honour’s discipline, adaptability and enthusiasm for new challenges. Your Honour learned to ski at 38 and became such a devotee of yoga that a headstand is now regularly incorporated into your evening routine. Your Honour, indeed, has many interests that prioritises family. Your Honour is a devoted family man, whether dancing with your wife Nicola or passing a rugby ball in the backyard with your children. Those close to you speak of your affection. You also most enjoy time spent with loved ones gathered for a meal. I have been told that your Honour’s devotion to family and fatherhood has also infiltrated your sense of humour. I am sure that your esteemed colleagues in this Court look forward to playing audience to your full repertoire of dad jokes, be they met with laughter or good-natured groans of amusement.

Your Honour’s appointment to this Court acknowledges your commitment to the law and accomplishments in the legal profession. Your Honour takes on this judicial office with the best wishes of the Australian legal profession and it is trusted that you will approach this role with the exceptional dedication to the law that you have demonstrated throughout your career to date. On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and welcome you to the Federal Court of Australia. May it please the Court.

ALLSOP CJ: Thank you, Ms Supit. Dr Higgins SC, the Senior Vice President of the New South Wales Bar Association and representing the Australian Bar Association, the President of which is here today, Mr Peter Dunning KC. Mr Dunning, thank you for coming.

DR R. HIGGINS SC: May it please the Court. I acknowledge the Gadigal People of the Eora Nation, the traditional custodians of the land on which we meet. I pay my respects to their elders past and present. I extend that respect to First Nations peoples here today. Chief Justice Allsop, it is a privilege to appear on behalf of the Australian and New South Wales Bar Associations to welcome the appointment of his Honour Justice Jackman as a Judge of the Federal Court of Australia. Justice Jackman, warmest congratulations on your appointment and on your return to a Court where some decades ago, you were Associate to the Honourable Professor William Gummow AC who is present here today. In the preface to the second edition of your monograph, The Varieties of Restitution, your Honour quotes Sir Isaiah Berlin, a thinker celebrated for his notion of the plurality of ideas and values. Berlin laments:

This naïve craving for unity and symmetry at the expense of experience.

Your Honour resisted that craving in the book which propounded a plurality of rationales underlying the law of restitution. When first published, that conception diverged sharply from the prevailing English and, especially, Oxford view of a unified theory of restitution. Your Honour’s approach not only demonstrated intellectual courage, it also reflected a careful attention to experience and its messy complexity, a concern for what a layperson might think of it all and a rejection of the comforts of monism. These are quintessentially judicial qualities which will now be used in service to this Court and to those who appear before you. Your Honour had pursued your interest in restitution while a Rhodes Scholar at the University at Oxford. You were aptly known to your friends as “the scribe”. Before leaving restitution, Professor Gummow has observed that Oxford University has now finally come into line with your Honour with the publication last month of Professor Robert Stevens’ monograph The Laws of Restitution. I emphasise the plural.

The United Kingdom Supreme Court has also begun the movement away from a unified law of restitution. It is difficult to gauge for which institution that shift is more tectonic. Professor Gummow also confirms that as an Associate your Honour was extremely efficient in intellectual and administrative tasks and in dealing with other Federal Court staff, barristers and solicitors. Your Honour got with alacrity the nub of the case, whether at trial or appeal, and understood the issues crisply. Your Honour went to the Bar in 1989 and took silk in 2002. At the Bar, you specialised in commercial and company law and were involved in substantial trials and many intermediate and High Court appeals including Australian Financial Services Leasing Proprietary Limited v Hills Industries Limited.

Before taking silk, your Honour had many brilliant leaders, one of whom, the Honourable Justice Mark Leeming, is also present here today. To speak of these various connections across time is to situate your Honour in a lineage that is not only a distinguished series of barristers practising from Eight Selborne, but more simply the leaders of the New South Wales Bar. As a silk, your Honour exhibited contrasting qualities depending on whether you were in Court or dealing with colleagues. In Court, your Honour was a disarmingly confident direct advocate who distilled cases to their essence. There was no superfluity in your Honour’s presentation. That directness facilitated highly effective cross-examination. Barristers who were led by your Honour speak of how much you taught them about the advocate’s craft and your generosity in introducing young barristers to solicitors with whom they could develop relationships.

Indeed, several barristers who led your Honour have said that it was they who learned from you, in particular, for your Honour’s approach to preparing a trial. Your Honour taught pupils that whether as to fact or law, there is often a better way of framing a submission than the first thing that comes to mind and that reflection is always repaid. That is the heart of the common law method described by Sir Edward Coke as the finding and refining of ideas. Your Honour also taught pupils that repeating a submission will almost always dilute its impact. A note of that guidance should be taken by every person who proposes to appear before your Honour. Your Honour conducted the practice of law with equivalent precision. Your daily routine was metronomic. You unfailingly arrived via ferry in chambers at 7.30 am and invariably travelled home via ferry at 5 pm. Your Honour occupied those days fully, attending Court frequently and holding efficient conferences in chambers where juniors and clients would occupy strategically uncomfortable high-backed chairs.

Your Honour was in conference utterly decisive in giving advice. More than one junior or solicitor has made a lengthy suggestion to your Honour in conference only to receive the answer “no”. Sir Isaiah Berlin stressed that pluralism is not relativism, that the multiple values we discern are objective, part of the essence of humanity and not the creations of our subjective fancies. Consistent with that, your Honour has clear and very deeply held values. Those values were in part reflected in those metronomic days. Your Honour is a private person, but your work practices were a function of the clear priority you gave to family while accommodating the duties of an always fashionable barrister. Your Honour brings to the bench qualities of intellectual independence, fairness, integrity, and efficiency. These have been evident in your first sitting weeks.

Your Honour’s first decision, I am told, was delivered ex tempore and I am reliably informed that those punishing hard-back chairs have also made the transition to judicial life. Chambers will, I trust, remain as efficient as always. Your Honour, it is a happy occasion when a first-rate lawyer accepts appointment to judicial office and today is a very happy day. The Bar has absolute confidence that you will be an excellent Judge and that you will make an important contribution to the work of this Court for many years. May it please the Court.

ALLSOP CJ: Thank you, Dr Higgins. Ms Cassandra Banks, the President of the Law Society of New South Wales and representing the Law Council of Australia.

MS C. BANKS: May it please the Court, I too acknowledge the Gadigal People of the Eora Nation, the traditional custodians of the land on which we meet and I acknowledge their elders past, present and emerging. I also acknowledge and extend my respects to all Aboriginal and Torres Strait Islander people who are present today. Justice Jackman, today I appear on behalf of the Law Society of New South Wales and the Law Council of Australia. I am honoured to come before the Court on their behalf to congratulate your Honour on your appointment and welcome you as a Judge of the Federal Court of Australia. You studied at Knox with some other high achievers including Mark Scott, Vice-Chancellor of the University of Sydney, and Professor Alec Cameron, both of whom remain your very good friends.

As well as working very hard and achieving excellent grades in your subjects at the University of Sydney, you played rugby with Nick Farr-Jones and remained a supporter of Sydney University Rugby in the Shute Shield. As we have heard, you then studied at Oxford. Your academic achievements, sporting prowess and happy gift for befriending future world champion rugby players would continue at Oxford. You were awarded the Gibbs Prize for best overall performance in examinations in contract, tort, land and trusts. On the rugby pitch, you were the hooker in a number of games for the Oxford Blues and joined them on tours of France on two occasions. You made friends with a New Zealand student, David Kirk. Mr Kirk had captained the All Blacks in the inaugural World Cup in 1987 when the All Blacks first confirmed officially that they were the best team in the world.

As we have heard, you took silk in 2002. In recent years, you represented insurers in COVID-19 business interruption cases in the Federal Court and the High Court. Your Honour is known to be courteous, astute, and succinct in your dealings with solicitors and staff. Solicitor Kim Reid of Allens recalls you with respect and fondness. He first met you in 2010 when he briefed you as a silk. You were acting for a large mining company which was the subject of a series of claims by a nearby junior miner who had sought to impugn almost every aspect of the client’s mining tenure. The matter involved a series of administrative law challenges as well as breach of confidentiality claims and the then Minister for Mining was also a party to many of the claims. Mr Mark Leeming, now Justice Leeming of the New South Wales Court of Appeal, was the silk for the junior miner and Mr Reid was delighted to see your Honour cross swords with and vanquish his former mentee.

Your Honour very quickly became the go-to silk for complex matters. Mr Reid recalls the firm where he worked would rush to brief you first for fear of you turning up on the other side. Mr Reid remembers how your Honour then spent more than decade steering their corporate clients through a range of matters and you would often astound the senior partners with your grasp of highly complex transactions that teams of solicitors had been working on for months. Most importantly, you were known to be unfailingly polite as a silk. Solicitors would deliver voluminous briefs to you and pose a series of difficult questions asking when they might get to see you. Usually, the answer was that you were free at 8.30 the following day or a day that week where you would methodically give answers one by one. Mr Reid says, “We had absolute confidence”. You would always give a clear and robust view on even the most significant questions of law, an attribute that was grounded in your incredible intellect and commercial nous.

Solicitors who worked with your Honour learnt a passion for the law and dispute landscape which was balanced with knowing that there is no substitute for being frank and direct with the Court about the matters of most concern and, often, the most harmful to a client’s case. You went straight to the heart of a problem and shone the spotlight on it. There was one line no instructing solicitor every crossed. Any attempt to stand between you and your ferry ride home was a waste of human endeavour. You would catch that ferry like clockwork and if a brief was delivered a minute late, then it would have to wait for the next day. Outside of the Court, your Honour is a devoted a family man to your wife and your children. In a delightful illustration of rugby skills being part of one’s DNA, Alexander has been selected for the Oxford Blues to play Cambridge this Saturday. I have no doubt you will be staying up late to watch that game.

Justice Jackman, thank you for your service that you have provided to the clients and the guidance and motivation you have shared with solicitors. It is an honour to acknowledge your appointment and welcome you to the Federal Court. On behalf of the solicitors of Australia, please accept our best wishes for your career on the bench. As the Court pleases.

ALLSOP CJ: Thank you, Ms Banks. Justice Jackman.

JACKMAN J: Chief Justice, fellow Judges, distinguished guests, ladies and gentlemen, thank you very much Ms Supit, Dr Higgins and Ms Banks for your most generous words. To paraphrase Lyndon B. Johnson when he was given a similarly kind encomium, your speeches made me wish that my parents could have been present. My father certainly would have enjoyed your speeches and my mother would have believed them. I am deeply touched by the large numbers of friends and colleagues here today. You do the Court a great honour by your presence. I would also like to take the opportunity of thanking my colleagues on the Court for the warmth of their welcome over the last seven weeks. It is a great tribute to you, Chief Justice, that you leave a Court as convivial and pleasant as I have found it.

There are many people to whom I am happily and gratefully indebted and at long last it’s time to pay up. I had the very good fortune to attend Knox Grammar School which, in my experience, was an outstanding school. We were taught to work hard and to pursue excellence and it was instilled in us that excellence is never an accident. It’s always the product of high intention, sincere effort and intelligent execution. I am delighted that my old headmaster, Dr Ian Paterson, and his wife Marjorie are present today. Then at the University of Sydney, I was exposed to a true liberal education, particularly in the history department and I learnt much about life more generally at St Andrew’s College and, as you’ve heard, playing rugby with the Sydney University Football Club. The front row was a particularly good place to meet people. I’m honoured that my favourite loosehead prop, Tony Abbott, is with us today. I value greatly my continuing involvement with the university both through St Andrew’s College and through the football club.

Then three marvellous years at Oxford was so immensely enjoyable that I almost forgot to come home. That is, until Billow Gummow suggested that I might like to be his associate in the Federal Court. That was the first occasion for me when the Federal Court drew me away from an institution where I would quite happily have seen out my days. And working for Bill Gummow gave me the opportunity to witness firsthand the dissection of counsel’s arguments with a scalpel and, if I may say so with the greatest respect, without the benefit of anaesthetic. Bill gave me strong encouragement to go to the Bar and the Bar treated me very well, indeed. To find a career that fits in with some of one’s earliest aspirations and then to find that career intensely fulfilling makes one extremely fortunate. I had the great fortune to read with Bret Walker whom I continued to regard as the barrister’s equivalent of a Swiss Army knife.

It did not take me long in his company to realise what a difference there is between academic learning and the same learning when applied to the tactics of litigation and to the facts of real life. And in that first year at the Bar, Dyson Heydon took a chance on me and soon became the source of such highly stimulating work that I could barely believe my luck. I had the great pleasure of sharing not only in his work but also in his conversation in which he manages to bring life into a rather closer resemblance to literature. Dyson also did me the favour of encouraging me to join Eight Selborne which was my professional home for 33 very happy years. And so to Bill Gummow, Bret Walker and Dyson Heydon, please accept my heartfelt gratitude for your careful, kind instruction and for your bountiful encouragement. No fledgling barrister could have asked for better, wiser or more supportive mentors.

Time does not permit me to pay particular tribute to all the others who guided me by instruction and example or to the many juniors and solicitors who have provided invaluable and often decisive assistance. In the latter regard, I would like to make specific mention of Richard Fisher of Ashurst and Malcolm Stewart of Speed and Stracey who both supported me in my early years and who continued to do so for over 30 years. I’m very sorry to be saying farewell to the members of Eight Selborne. I will miss their work and their friendship, not to mention the cheerful flow of unguarded conversation. It would be impossible to cope with the frenetic activity of barristers’ chambers without the support of diligent and understanding staff members. We’ve had a succession of superb clerks on Eight Selborne – Bill McMahon, Di Strathdee, Simon Walker and Sally Flynn – for whom nothing has ever been too much trouble and I thank them, along with our long-serving receptionist, Raylee Aegis, for all their hard work. Samantha Moore has been an outstanding secretary and I am delighted that she has joined me in the Court.

In 1998 the Federation Press took on what would have been a most dubious prospect for a more commercially minded publisher and I’m deeply grateful for the risk they took in agreeing to publish The Varieties of Restitution. Fortunately, the late Chris Holt and now Justice Mark Leeming seem to share John Milton’s aspiration that their books would fit audience fine, though few. For the last nine years, I have had the great pleasure of being a member of the Commonwealth Government’s Takeovers Panel. It has been an illuminating experience to work with company directors, investment bankers and fellow lawyers in solving complex problems and to see how different intellectual disciplines and patterns of reasoning often lead by distinct paths to the same outcome. I thank my fellow members on the panel and I thank the hardworking executive for that experience.

Finally, my wife, Nicola, has given me her long-suffering support and understanding over the last three decades. She is too private a person for me to make this the occasion to do her justice. Her own career path is reflected in the birth certificates of our four children. First, financial analyst, then perhaps the more prosaic home duties. By number 3, that was elevated to domestic engineer and by number 4 Nicola’s occupation is recorded as magician. She assures me she is not contemplating early retirement. It was remiss of me earlier not to mention my debating coach from 43 years ago, John Gibson, who is present today. He is a prime example of how great teaching stays with you all your life. He kindled my early interest in the law, but he also managed to distil the essence of public speaking into two fundamental propositions. The first is always leave your audience wanting more.

ALLSOP CJ: The Court will now adjourn.