Ceremonial sitting of the Full Court
To welcome the Honourable Justice Owens
Transcript of proceedings
The Honourable Debra Mortimer, Chief Justice
The Honourable Justice Nye Perram
The Honourable Justice John Nicholas
The Honourable Justice Anna Katzmann
The Honourable Justice Bernard Murphy
The Honourable Justice Darryl Rangiah
The Honourable Justice Michael Wigney
The Honourable Justice Melissa Perry
The Honourable Justice Brigitte Markovic
The Honourable Justice Robert Bromwich
The Honourable Justice Michael Lee
The Honourable Justice Katrina Banks-Smith
The Honourable Justice Thomas Thawley
The Honourable Justice Angus Stewart
The Honourable Justice Wendy Abraham
The Honourable Justice John Halley
The Honourable Justice Elizabeth Cheeseman
The Honourable Justice Kylie Downes
The Honourable Justice Scott Goodman
The Honourable Justice Patrick O’Sullivan
The Honourable Justice Elizabeth Raper
The Honourable Justice Geoffrey Kennett
The Honourable Justice Ian Jackman
The Honourable Justice Yaseen Shariff
The Honourable Justice Jane Needham
The Honourable Justice Cameron Moore
The Honourable Justice Nicholas Owens
The Honourable Justice James Stellios
The Honourable Justice Houda Younan
SYDNEY
10.02 AM, THURSDAY, 27 FEBRUARY 2025
MORTIMER CJ: Good morning, and thank you for attending the second welcome ceremony in this registry this week. I pay my respects to the Gadigal people of the Eora Nation, whose country we are on. I acknowledge their ancestors and elders, who have looked after this country for many generations. I also acknowledge the enduring connection of First Nations people to their country, their culture, their traditional laws and customs. What a pleasure to see so many people here today publicly to celebrate the recent appointment of Justice Owens.
We’re honoured to be joined by the Chief Justice and Justices of the High Court; former Justices of the High Court, including the former Chief Justice; the Chief Justice and Justices of the Supreme Court of New South Wales; the President and Justices of the Court of Appeal; former Justices of this Court; Justices of the Federal Circuit and Family Court; and Chief Judges and Judges from a range of State courts. We also welcome many counsel and solicitors, members of the academy, and a wide range of colleagues from Federal and State Tribunals.
Turning to those of you who might not find yourselves in a courtroom as often as most of us do, a very warm welcome to members of Justice Owens’ family, and his friends who are here today. I’m sure I speak for all my colleagues when I say that we all appreciate how important it is that the support of family and friends is given as generously as it always is to achieve a milestone like Justice Owens has achieved today.
As well as a celebration, this is a ceremony. A ceremony like this allows public recognition of the qualities and attributes of the new appointee who has accepted the responsibility to serve in the administration of justice in this Court. This ceremony and the accounts of the personal and professional history of a new Judge allows the community to see and understand the increasing diversity of backgrounds of judicial office holders, as well as their eminent personal and professional qualifications. Diversity is a common good for the judiciary, and it enhances legitimacy.
Justice Owens, you took the oath of office on 18 December last year, here in this building, in front of family, friends and many of your judicial colleagues in this registry. You promised, as every Judge of this Court has, to do right to all manner of people according to the law, without fear or favour, affection or ill will. That promise is about independence, fairness, courage and impartiality. Those are values I am confident you will uphold in your service to the Australian community as a Judge of the Federal Court.
The people who make excellent Judges, as you will, do not accept this office for the power they will have. Power comes with the office, but should not be a motivating factor. Rather, as you have done, Justice Owens, excellent Judges accept appointment for the service they can give based on their experience and their expertise. Service that will be given with courage, and with independence, and without politics. I’m proud to serve with you, and to focus on the important work that this Court does. On behalf of the Judges, Registrars and staff of the Court, I congratulate you on your appointment. Mr Blunn, the Australian Government
Solicitor, representing the Attorney-General for the Commonwealth, I invite you to address the Court.
MR M. BLUNN: May it please the Court. I too would like to begin by acknowledging the traditional owners of the land on which we meet today, and pay my respects to elders past and present. I also extend that respect to all Aboriginal and Torres Strait Islander people here today. The Attorney-General, the honourable Mark Dreyfus KC MP, regrets that he cannot be here to share this occasion with you today. He has, however, asked that I convey the Government’s sincere appreciation for your Honour’s willingness to serve as a Judge of this Court. And the government extends its best wishes for your career on the Bench. It is also a great privilege for me to represent the Attorney to congratulate your Honour on your appointment as a Judge of the Federal Court of Australia. Your Honour’s appointment to this Court is another step in an eminent career. That so many members of the judiciary and legal profession are here today is a testament to the high regard in which your Honour is held.
May I particularly acknowledge the Honourable Stephen Gageler AC, Chief Justice of the High Court of Australia; the Honourable Murray Gleeson AC, former Chief Justice of the High Court of Australia; the Honourable Justice Gleeson of the High Court of Australia; the Honourable Justice Jagot of the High Court of Australia; the Honourable Justice Beech-Jones of the High Court of Australia; the Honourable Michael Kirby AC CMG, former Judge of the High Court of Australia; the Honourable Andrew Bell, Chief Justice of the Supreme Court of New South Wales; the Honourable Justice Ward, President of the Court of Appeal, Supreme Court of New South Wales; the Honourable Justice Preston, Chief Judge of the Land and Environment Court of New South Wales; the Honourable Justice Huggett, Chief Judge of the District Court of New South Wales; the Honourable Michael Allen, Chief Magistrate of the Local Court of New South Wales; other current and former members of the judiciary, fellow speakers, and members of the legal profession.
May I also acknowledge the presence of your Honour’s family, who no doubt proudly share this occasion with you. In particular, your wife Catherine, and two sons Charlie and Edward; your parents, Rosemary and Lewis; and two sisters, Alexandra and Cecilia, with whom I am told your Honour shares a deep connection. Time does not permit a full exposition of your Honour’s achievements and the contribution you have made to the law, but as her Honour observed, it is important to give the community a sense of the distinguished person appointed to this Court.
Those who do not know your Honour will regret their misfortune. Your Honour was born into a loving network of family and friends. With them you spent your formative years exploring the hills and yabbying the Clare Valley, climbing the mountains of the Flinders Ranges, and boating along the Murray River. I am told your Honour showed signs of developing into a skilful lawyer from an early age. Your Honour enjoyed the opportunity to hone and refine the skills for argument and debate with your sisters, while quickly growing to understand that consent agreements often produce more favourable outcomes to parental adjudication, mediation, conciliation or, still worse, arbitration.
Your Honour attended Glenelg Junior Primary School, where you demonstrated an ability to gather, hold and deploy broad bodies of information. I am told your Honour also exhibited a sharp, often irreverent sense of humour and wit, to the great amusement of your Honour’s classmates, and occasionally the chagrin of your teachers.
Your Honour progressed to St Mary’s Memorial School, and later Mercedes College, where your Honour’s talent really started to be recognised. In 1992, your team placed first in the Law Society of South Australia’s mock trial competition, with your Honour earning the Roy Grubb Memorial Trophy for Best Barrister, a foreshadowing of how full your Honour’s trophy cabinet would become.
Your Honour graduated from the University of Adelaide with a Bachelor of Arts in 1997, and a Bachelor of Laws with Honours in 1999. Your Honour’s excellence is exemplified by the range of awards you received during this period, including the University Medal for Outstanding Academic Performance and the Angus Parsons Prize, awarded for achieving the highest overall mark in the Bachelor of Laws program. Your Honour is also counted among the few recipients of the Stow Medal, and the winner of the title of Stow Scholar, awarded to the most successful students in each of their final examinations across three successive years.
After your success at the University of Adelaide, your Honour went on to graduate with a Master of Laws from Harvard University, where your Honour was awarded the Joseph Beale Prize for Studies in Conflict of Laws. Your thesis was also awarded the Addison-Brown Prize for Best Essay on Private International Law. It is by this point that your Honour, no doubt, traded in your trophy cabinet for a pool room against the possibility that there would be no room left for the jousting sticks.
Your Honour was admitted as an attorney in New York in 2002, where you commenced practice as an associate at the renowned global firm Sullivan & Cromwell. Your Honour returned to Australia in 2003, and was called to the New South Wales Bar in 2004. You quickly established yourself as one of the leading juniors in Sydney, with more than 25 appearances in the High Court at that time. Appropriately, Dr Higgins will address the Court in relation to the important role you have played in a number of significant cases, including the Ben Roberts-Smith proceeding. Judgment in the appeal in that case is reserved before this Full Court. However, it should be recognised that the circumstances in which your Honour came to be briefed in that matter were, to say the least, challenging, demanding and having the benefit of all of your Honour’s professionalism, experience and talent.
At the Bar, I’m told your Honour benefited greatly from the mentorship, generosity and friendship of many of the most respected leaders of the legal profession, including the Honourable Murray Gleeson AC GBS KC, former Chief Justice of the High Court of Australia, and Sir William Deane AC KBE KC, former Governor-General of Australia and previously Justice of the High Court. In turn, many of your friends and colleagues have also noted your Honour’s ability to connect and give back. Your Honour exhibits the qualities of integrity, extreme generosity, respect for others and humility. Your Honour is described as genuinely and unfailingly polite, extremely curious, with an appetite for all things new, and overall, tremendous company.
To balance your Honour’s well-documented excellence in study and legal practice, let me now turn to your Honour’s interests outside the law. I’m told your Honour finds great enjoyment and relaxation at the seaside, where you dedicate many hours to sailing and fishing. Your talent for crabbing in particular led your family to seek out a variety of recipes for shellfish, which I understand you have perfected. Your friends and family also highlighted your Honour’s passion for travel and the study of history. I’m also informed that your Honour is a superb poker player, about which Dr Higgins will speak more.
However, it is widely known that outside the law, your Honour’s greatest passion is classical music, and that you are a virtuoso piano player. I’m told that on occasion your Honour has been known to bring colleagues to tears with your piano playing, and following on from Justice Moore’s swearing-in yesterday, I’m wondering if Friday evening drinks will be accompanied by piano playing from the new Justices of this Court.
Your Honour’s appointment to this Court acknowledges your extensive range of accolades, dedication to the law and accomplishments in the legal profession. Your Honour assumes 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 you have shown throughout your career. 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.
MORTIMER CJ: Thank you, Mr Blunn. Dr Higgins, President of the New South Wales Bar Association and representing the Australian Bar Association.
DR R. HIGGINS SC: May it please the Court. I too acknowledge the Gadigal of the Eora Nation. I give my respect to their elders past and present and extend that respect to First Nations persons present today. Chief Justice Mortimer, it is an honour to speak today on behalf of the New South Wales and Australian Bar Associations. Justice Owens, well played. In his recent book, On the Edge, Nate Silver said this about the skills required to excel in poker:
In poker there are millions of permutations for how a particular hand might play out, and it’s impossible to plan for every one, so you need generalisable rules. Those rules won’t be perfect, but as you gain more experience you can develop more sophisticated ones. The real world is messy, so first you use analysis to strip out the noise and break the problem down into manageable components. Then you use abstraction to put the world together again in the form of a model that retains the essential features and relationships.
Poker is almost as foundational for your Honour as the law. You learned it when you met your wife Catherine and forged your skills in the crucible of her poker-playing family. That you excelled at it is no surprise. That it tells us something of your Honour’s temperament is, perhaps, also no surprise. Your Honour had from the start been dealt a very strong hand. Your mother, Professor Rosemary Owens AO, was Dean of the Law School at the University of Adelaide. Your father, Lewis, was an engineer. And your Honour soon worked out how to disassemble and restore the parts of the law through analysis and abstraction. As a result, at the University of Adelaide your Honour collected prizes as a philatelist collects stamps. Your Honour also collected fine wines and Wagnerian recordings in an early manifestation of being old beyond your years.
As associate to the Honourable Murray Gleeson AC, then Chief Justice of the High Court of Australia, your Honour refined your legal skills still further. Your Honour also had a healthy terror of the role. One day, your Honour went into the Chief Justice’s chambers with a note, which you handed to him, which he quietly read, then pointed to a citation and said “Fix this.” Your Honour scanned the case name. You concluded that the ex parte and the re were in the correct order, so focused instead on punctuation. Your Honour finally asked, “Should the semicolon be a colon?” The Chief Justice quietly said, “There should be an H in Commonwealth.”
Despite this, the former Chief Justice describes you as an excellent associate, whose work was greatly valued. Your Honour’s associateship further fermented your appreciation of wine, and began years of prodigiously fine dinners hosted by the wonderfully odd couple of Ben Wickham as chef, and your Honour as sommelier. Your Honour completed a Master’s at Harvard in 2001, again excelling, and again receiving multiple prizes. Between 2001 and 2003, your Honour was a member of the New York State Bar Association, employed by Sullivan & Cromwell.
An early manifestation of your Honour’s courage is seen in your persistence in that city and role, notwithstanding that in your first week of work, in September 2001, you were evacuated from the firm’s premises, which were immediately adjacent to the World Trade Center. You made your way to the streets, tightly clasping the hand of a young woman, now known as Amal Clooney. If Ms Clooney is ever appointed to the Bench, your Honour will doubtless receive a mention in that ceremony.
In 2004, upon returning to Australia, your Honour came straight to the New South Wales Bar. In doing so, your Honour again played your hand well. At the Bar, your Honour had several excellent mentors. You read with Richard Lancaster SC on 7 Wentworth, who gave your Honour three pieces of sage advice, two of which you took. First, get out of that French wine syndicate with Francis Douglas. Second, if you go for a run now and then, you might actually enjoy it. And third, no, Bret does not have any notes for address, so please stop looking for them.
As junior counsel, your Honour appeared in the High Court of Australia more than 25 times. As a junior of choice for Bret Walker AO SC, Justin Gleeson SC, and David Jackson KC. So frequent were those appearances that on many occasions, your Honour’s readers’ first Court appearance was as a second junior in the High Court. In 2015, while still junior counsel, your Honour appeared unled for the appellant in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203. The Court unanimously allowed the appeal.
As senior counsel, having moved to 5 St James’ Hall, your Honour’s practise was diverse. It ranged through constitutional law, competition law, tort, insurance and defamation law. More recently, your Honour has accepted a large number of cases in the abstruse area of superannuation law, which can only reflect your Honour’s firm commitment to the cab rank rule.
Your Honour devoted substantial time and intellectual endeavour to the Queensland floods class action brought by Maria and Vince Rodriguez. That required patiently learning the interstices of engineering, hydrology and meteorology as they concern counterfactual flood operations. The matter also required your Honour to make many trips to Lehi, Utah and Oxford, Mississippi to meet with expert witnesses. That in turn facilitated numerous side trips to Las Vegas to test your Honour’s poker skills against the world’s finest. Reports of your success quickly reached Sydney. The Queensland floods proceeding was, in part, settled against the State of Queensland and Sunwater for $440 million, and otherwise produced an important authority on the issue of factual causation.
Salient among your Honour’s cases as Senior Counsel was appearing for Fairfax in defamation proceedings brought by Ben Roberts-Smith, and still under appeal in this Court. That was a brief which required courage and stamina to an extraordinary degree, although possibly not as much as the two-week hike through the Dolomites that your Honour took with Justin Gleeson SC immediately after the trial.
Phil Hellmuth, the most decorated modern poker player, and a man who collects prizes almost as naturally as your Honour, has described his ability to read opponents as white magic, and as involving attending to the slightest physical tells or verbal ticks of opponents to identify and exploit vulnerabilities. In the Ben Roberts-Smith trial, your Honour was required for weeks carefully to assess witnesses’ demeanours, responses, and posture to conduct polite but witheringly effective cross-examinations. Sometimes your Honour’s assessment was more direct. One witness posted unflattering comments about your Honour on Instagram overnight during your cross-examination of him. The following morning, your Honour resumed by reading the somewhat florid text onto the transcript and proceeding to cross-examine on it.
Whatever the matter, however, your Honour met professional joy and hardship alike with levity and humour. That generated an impressive corpus of emails with titles including “A Thing of Beauty is a Joy Forever”, “I Think I Have a Case of Number 227”, “A Reading from Genesis” – I infer that one was about the flood – “Hypothetical Transcript”, and “Scale of Regret on Asking That Question: 10 out of 10”.
One email, the text of which can be shared, was sent to a team in extremis in the middle of a hearing, and read as follows:
My feelings upon waking this morning reminded me of the scene in Fidelio where the prisoners are momentarily let out of their cells, and go up their way into sunlight. Of course, they are soon afterwards returned to the dungeon. But let’s not worry about that for now.
Your Honour also gave considerable time to the Bar Association, including being, for many years, an invaluable member of a Professional Conduct Committee. You there displayed the demanding combination of sympathy and detachment that the proper performance of a self-regulatory professional discipline function requires. You also sat on last year’s Silk Selection Committee. It was apparent from the very first meeting that your Honour had carefully read each and every application. The Association is very grateful for the time that your Honour gave it.
Those who juniored frequently to your Honour have this advice for counsel appearing before your Court: in conference, your Honour would patiently allow solicitors and junior counsel to develop their theory of a case before politely intervening and saying, “Isn’t the question really this?” Counsel who hear those words should listen carefully, and reply more carefully still. It is very likely that the question is really that.
Those who juniored frequently to your Honour also uniformly shared the response to your Honour’s appointment of being delighted for the Court, your Honour and the country, but being quietly devastated that they would never again have the opportunity to work with your Honour. Justice Owens, the barristers of New South Wales and Australia know that you will be an outstanding Judge, and that you will equip yourself in the role with the same brilliant modesty and modest brilliance that you have brought to every stage of your life thus far. May it please the Court.
MORTIMER CJ: Thank you, Dr Higgins. Ms Ball, President of the Law Society of New South Wales, and representing the Law Council of Australia.
MS J. BALL: May it please the Court. I would like to adopt my learned friends’ acknowledgement of the Gadigal people of the Eora Nation on which this Court stands. A very well-respected and senior defamation solicitor said to my team that during one’s career, a very small number of lawyers make an impression in court that changes one’s sense of what a lawyer can do. This solicitor had never, ever seen anyone better than your Honour in the Ben Roberts-Smith case.
When recently asked about this prodigious ability at university, the prizes and all that followed, your Honour simply replied, “I was always quite good at cramming a lot of information into my skull.” That TARDIS-like capacity of your brain first led to your Honour’s associateship with the then-Chief Justice of the High Court, the Honourable Murray Gleeson, as we have heard, but about which your Honour quipped, “Your whole career is downhill when you start sitting in the Chief Justice’s chambers in Canberra.”
Your Honour has been noted as a master of preparation, with a mind that grasps huge areas of law extraordinarily quickly. The only slight drawback to this, we uncovered, was attending school functions for your children, where your Honour’s wife, Catherine, also a lawyer, may occasionally politely have steered conversations away from legal areas. Whether due to the incomprehension she saw on non-lawyers’ eyes, or your crystalline knowledge, we could not ascertain. However, Catherine noted that routinely waking up at 3 am to start one’s day over, say, 110 days in a large defamation trial can understandably preoccupy a person.
The many solicitors we spoke to across very different cases from your Honour career offered, your Honour was uniformly brilliant, focused, with humanity, kindness, warmth and humour. Your Honour’s elegance and integrity in tense, tough cases has been unusual. An ability to take terrible and serious subjects such as war crimes, rape, uncompensated asbestos victims, and historical sexual abuse, and deal with them in a fair compassionate manner. And in public, pressured moments compress steeliness, logic and force into utterly persuasive submissions, cross-examinations and verbal acuity. This stretched to completely different areas, like reinsurance disputes. We heard, for example, about an opening mediation session around an insurance policy, where your Honour was so impressive and persuasive about the complex calculation at the matter’s heart that the opposing counsel couldn’t respond, apart from eventually asking your Honour to repeat what you had just said, while everyone else took notes.
This openness to all legal challenges extended to deeply technical and obscure interlocutory skirmishes concerning the provision of file path data as a field of metadata by way of discovery and securing an important victory in the matter that continues to guide legal practitioners to this very day. Those solicitors who instructed your Honour know that no legal challenge was too novel, no issue too technical to deter your Honour’s methodical and thorough approach. It was in discussing this vast success that your Honour’s wife, Catherine, helpfully brought up the fact that she recalled your Honour talking about your life’s sporting highlights, which were playing in a mixed-gender netball team with your sisters for a season, mainly because your parents saw the advantages of you all being dropped off and picked up at the same time. Of course, there have also been famous cases in which your Honour was a central figure, and they are no doubt at the forefront of many people’s minds. But as your Honour observed, while a phenomenal amount of hard work went into them, the same work went into every case. After all, for most clients, the trial of the century is the one that they are involved in.
Personally, your Honour never thrived on publicity. Instead, your Honour recalled that some of the most satisfying work you ever undertook was a pro bono migration matter for a Ukrainian journalist who had sought refuge in Australia, eventually going to the High Court. The sentiment behind this gift this client gave your Honour meant that the most you ever received from any client. Although you added you were sure everyone would say such things. Other Solicitors have said that beyond the obvious legal brilliance, what truly sets your Honour apart is your remarkable gift for bringing levity to the most intense moments of legal practice, wit and humour that would lift spirits and restore perspective even in the most stressful moments of litigation. Many in this room can recall this ability to maintain lightness without compromising the gravity of the situation at hand. Along these lines, your Honour was probably the first counsel to ever admit in open court that you found spreadsheets fun.
Your Honour did not expect your juniors or instructors to wheel heavy trolleys or pour glasses of water. In times of stress your Honour’s energies were challenged into humorous poetry as we have heard from Dr Higgins, creating subtitling of videos and fictional transcripts. Dr Higgins referred to your composing, entertaining emails as some subject lines illustrate. She mentioned “a thing of beauty is a joy forever”, however, one that I would like to add is “morning ferry commute’s musing”, containing poetry with apologies to Jay-Z. Over the past 20 years, your Honour has valued your relationships with solicitors generally, their ability to manage clients and translate real-world problems into legal framework, their project management skills managing millions of documents, teams of people and the law, all in a way that only the relevant information finds its way to counsel. In turn today, we can feel confident that your Honour’s judgments will be marked by that same intellectual curiosity, that same rigorous analysis and strong commitment to justice that bought your career at the bar. On behalf of the Law Society of New South Wales and the Law Council of Australia and more than 107,000 Australian lawyers, it is a privilege to congratulate your Honour on being appointed to the Federal Court of Australia. As the Court pleases.
MORTIMER CJ: Thank you, Ms Ball. Justice Owens, I invite you to respond.
OWENS J: Thank you, Chief Justice, and thank you to everyone present here physically or online for taking the time to attend this ceremony. It means a very great deal to me. I echo the acknowledgement by each of the speakers today of the traditional custodians of the land upon which we meet.
Mr Blunn, Dr Higgins and Ms Ball, can I record my gratitude for the obvious time and industry that has gone into the preparation of your speeches. Bret Walker has described ceremonies of this kind as the modern day equivalent of the Anglo-Saxons’ heroic epic poetry, and I don’t think he will have changed his mind today.
I’ve been to many of these ceremonies and invariably heard the standard disclaimer that no adverse inference should be drawn from a failure to mention any particular person by name. It’s only now that I sit here, do I realise how sincerely those statements are meant, but equally how fortunate I am that I have so many debts to acknowledge that 10 hours would never be enough, let alone 10 minutes.
As far as my family is concerned, of course, the problem is not so much whether to mention them, but how to reduce my feelings to words. I could not have asked for better examples of the virtues of industry, integrity and compassion than my parents. Both were the first in their families to finish school, let alone attend university, and they have always emphasised that the private rewards of a privileged life are accompanied by an obligation of service to the wider community. Dad graduated from university with a degree in chemical engineering and a lifelong scepticism of any form of reasoning that does not conform to that discipline’s objectivity and scientific rigour, the law being regarded as a particularly egregious example. His career defies neat summary, but the common thread to all of his roles was that each was seen as a means to improve the lot of the community as a whole. I could not have asked for a better role model in life. Mum made the objectively irrational decision to commence a law degree while on maternity leave with three children under four years of age. Tales are often told of me sitting next to her, colouring in during law lectures, but those tales are capable of concealing a harder truth. I was there because she did not have access to childcare, and some lecturers, by way of public humiliation, would make it known that women with children did not belong in law school.
One of my earliest memories is sitting in such a lecture with the students booing the lecturer. No doubt, moments like that were markers of the evolution still in progress of the profession towards a fully inclusive environment. That Mum went on, amongst other achievements, to be Dean of the Adelaide Law School, the inaugural Dame Roma Mitchell Professor of Law, an Officer of the Order of Australia, and for more than a decade, Australia’s representative on the International Labour Organisations Committee of Experts, is as unsurprising as it is inspiring. My sisters, Alex and Cecilia, for reasons that have never been particularly clear to me, seem to regard their primary role in life as preventing my ego from getting too far out of hand. Despite suffering childhoods full of provocations from me, as adults we’ve grown to be very close, and I value their friendship and counsel more than I suspect they know. Around that nuclear family was a small but close extended family, and I’m particularly pleased that my two aunts, Helen and Jill, are able to watch the live stream of this ceremony. That wider family has grown significantly over the years and to all my in-laws, my nieces and nephews, and in particular to my mother-in-law Carolyn, thank you all for the myriad of ways in which you have supported me.
It has been said that behind every successful man, there stands a very surprised woman. For me, that woman is Catherine. Proust observed that even in love, the memories we have of each other are not the same, and so it is with Catherine and me. To take but one example, when our first child was born, I distinctly remember taking six weeks off work to help out with the baby. Catherine has an equally clear memory of a never-ending parade of couriers delivering briefs to our front door and very little assistance being provided. It doesn’t strike me as a productive use of anyone’s time to try to work out where the truth lies in that and a myriad of disputed chapters in our marriage. But what I can say is this, there is no achievement in the last 20 years that I can count as mine alone, and I could not have wished for any better companion in life than you.
Charlie and Edward, if it’s a wise father that knows his own child, then having been blessed with two utterly enigmatic – you can look that up later – children, it would seem that I’m destined always to be foolish, and I wouldn’t have it any other way. You both see the world in a very different way, both to each other and to me, and while I would be lying if I denied that I didn’t sometimes wish you were both a little bit more governable, today and today alone, will you hear me admit that deep down I agree that “disobedience is man’s original virtue”. You are both good-hearted and kind young men, and I have learned an enormous amount from both of you. The particular nature of work at the bar has meant that I have seen a lot less of you than you both deserve, though to adapt a line of Murray Gleeson’s, I trust it will be a source of comfort to you as much as it is to me that I hope to be in a position to keep a much closer eye on you going forward.
Turning from family to teachers, I’ve had many truly inspiring ones, both at school and at university, but there are two of whom I wish to make special mention. I would have counted myself as lucky to have had, as I did, Jane Danvers as my year 5 class teacher. It was a rare stroke of good fortune to be in her class again for my final year of primary school. Those two years might have been enough to mark her out as the dominant influence in my education, but that status was cemented when she switched to teaching high school English by the time I started year 11, and I was in her English class in year 11 and in year 12. The discipline of reading, thinking and writing clearly, thoughtfully and carefully that Ms Danvers sought to instil in me has no doubt been of enormous practical value to me in my career. Of even greater worth was the love of poetry and literature that she fostered. She’s now the principal of Kambala School in Sydney, and I’m honoured by her presence here today.
The second teacher of whom I wish to make special mention is my thesis supervisor at Harvard Law School, Daniel Meltzer. I’m in good company in regarding Dan as the foremost scholar of United States Federal Courts of his generation, but as the flood of tributes that flowed upon his untimely death all made plain, he was above all, a thoroughly wise, fun, and lovely person. To this day, I don’t remember Dan ever actually telling me anything, but through the process of talking to him and pondering his questions, the most complex and challenging subject matter would somehow become not simple, but clear.
One thing that my education did not include was any study in Latin. The days are long gone when a working knowledge of that language is regarded as necessary or even just useful for the practise of law. Murray Gleeson has observed, however, that the study of Latin remains beneficial because it instils in you a fear of error. Well, while I didn’t study Latin, I worked for Murray Gleeson, and if I may say with respect, the effect was largely the same. To have the opportunity to observe at close range the pinnacle of the Australian legal system at the outset of your career is obviously an uncommon privilege for which I remain deeply grateful. Indeed, I enjoyed enormously and profited immensely from my contact with all of the Judges that year, and I am particularly pleased that in addition to former Chief Justice Gleeson, also present today is former Justice Kirby.
Working at Government House for Sir William Deane was another incomparable experience. If I had ever made the error of uncritically accepting the common description of the role of Governor-General as a figurehead, it was not a mistake I made again after that year. To observe the rigour of Sir William’s preparations for Executive Council meetings and his dealings with Ministers generally, was a unique lesson in Chapter II.
My own practice of law commenced at Sullivan & Cromwell in New York, where I worked with some of the finest lawyers I’ve ever encountered, Rodge Cohen, Michael Wiseman and Rebecca Simmons to name but three. I do not think it’s possible to overstate the benefit to a career in commercial litigation of having done transactional work, especially at the level at which Sullivan & Cromwell operated. I’m especially honoured that two of the firm’s partners, Wally Jones and Chris Beatty, are here today.
My career at the Bar has been marked by good fortune from first to last. It began with a chance encounter with Brad Selway on a trip home to Adelaide from New York. When I said that it was my vague intention at some point to return to Australia and go to the Bar, Brad very kindly said that he knew someone in Sydney who might be able to help me get a start and promised to see what he could do. So it was that I was put in touch with David Jackson and came to read on Seven Wentworth. David was one of three giants of the bar with whom I was privileged to work regularly as a junior, and of whom I wish to make special mention today. The other two, of course, are Justin Gleeson and Bret Walker. I learnt an inordinate amount from each of them.
In David, I observed the supreme embodiment of Lord Bingham’s observation that the “effective advocate is not usually he who stigmatises conduct as disgraceful, outrageous or monstrous, but the advocate who describes it as surprising, regrettable or disappointing”. Indeed, David took that idea further with the sting of his submission more often contained in a raised eyebrow or a pause than with any words at all.
Bret provided a living reminder of the fact that law is only a very small, and far from the most interesting, part of human accomplishment, and that you will be a better lawyer the more you understand the larger project of human civilisation.
Justin is intelligence, integrity and loyalty personified. Ultimately, the professional rewards of working with Justin have been eclipsed by those of the closest friendship. My decision to take an appointment had as its genesis conversations with Justin last year while hiking through the Pyrenees, not the Dolomites. The characteristic clarity and rigour of Justin’s analysis, possibly coupled with the effect of low oxygen, is what set me on the path to this moment today. One thing that all three of those barristers have in common is that they prove beyond argument that the making of a profound and lasting impact on the law and the legal system is not the sole province of the judiciary.
There were, of course, many other barristers from whom I learned much – both leaders and juniors – and solicitors. The advice I received from leaders was, it has to be said, of a variable quality. When I first came to the Bar, some senior barristers were visibly distressed at my ignorance of rugby. One of them very kindly bought me a book on the laws of the game and inscribed it with the following message: “If you want to succeed at the Bar then you simply have to know about rugby.” I will leave it to others to judge the validity of the rule, but I can confirm that I remain utterly ignorant of anything to do with that or any other sport.
Juniors and solicitors on the whole were much more reliable. Few pleasures at the Bar exceed that of being briefed with an excellent junior, and I’ve had far too many to name, but I would like to think that I’ve told each of you how much I valued your work at the time you did it. Likewise, in the hardest cases I ever did, I was always blessed with indefatigable, perceptive and creative solicitors, and I will be forever grateful for the faith that they put in me to present their clients’ cases.
My home, for the majority of my time at the Bar, was the Fifth Floor of St James’ Hall, and though presumably through the endeavours of some wag it’s labelled as an art gallery in Google, it was in fact the most congenial place from which to practise law I could have hoped for. Bret Walker, Noel Hutley, Gary Rich, Craig Lenehan, Richard Lancaster and then, when he left in search of natural light, Emma Bathurst. With so few members, it couldn’t work unless we all got along, and fortunately we did, famously. I’m sorry to be leaving the Fifth Floor, indeed it’s with genuine sorrow that I leave the Bar. On the whole, my experience has been that adversaries in law do indeed “strive mightily but eat and drink as friends”.
Of course, practice at the Bar wouldn’t be possible without the support of dedicated and professional chambers staff. My clerks, Paul Daley, and then Caroline Davoren, Danny Mason, the man to whom no title could ever do justice, and the best executive assistant imaginable, Jennifer Campbell, somehow able to impose and maintain order, not just on my chambers, but simultaneously those of the vastly more chaotic Craig Lenehan.
We all need friends to sustain us in life, let alone a life as pressured and draining as that of a barrister, and I’ve been fortunate to have a large number collected from each chapter of my life, all of whom are forgiving of the fact that they are all better friends to me than I am to them. It really would be invidious to name any of you, save the one who demonstrates all the virtues of friendships to excess with the single exception of forgiveness, Ben Wickham. The eminence grise of the Australian judicial system, the best man at my wedding, comedian, therapist, cultural tour guide and my partner in our ongoing project to learn Schubert’s Fantasie in F minor for four hands, and around whose dinner table many of us orbit. But I could not imagine life without any of you.
I’m acutely conscious of the magnitude of the responsibility now entrusted to me. I’m comforted by the fact that some of the greatest judges have experienced deep anxiety upon their appointments. Indeed, for at least one, Judge Learned Hand, it famously never left him. I can’t do any better than adopt the words he once wrote in a letter to his wife: “If I have limitations of judgment, I may have to suffer for it, but I want to be sure that these are the only limitations, and that I have none of character.” Thank you, all.
MORTIMER CJ: Thank you, Justice Owens. The Court will now adjourn.
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