Ceremonial Sitting of the Full Court

To welcome the Honourable Chief Justice Allsop AO

Transcript of proceedings

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9.29 AM, MONDAY, 13 MAY 2013

MR P. QUINLAN, SC: May it please the Court. It is with great pleasure that I appear on behalf of the Western Australian Bar Association this morning to formally welcome your Honour as Chief Justice of this honourable Court. In appearing before the Court may I also acknowledge the presence on the Court with current and former members of this Court of their honours Chief Justice French, Chief Justice of Australia and Justice McClure, President of the Court of Appeal of Supreme Court of Western Australia. Your Honour’s appointment as the fourth Chief Justice of this Court was, of course, enthusiastically welcomed by the bar throughout Australia, including in Western Australia, given your Honour’s long and eminent history of service both for seven years on this court from 2001 to 2008 and as President of the Court of Appeal of New South Wales.

Your Honour could now be forgiven for a growing sense of dÉjÀ vu, having now been welcomed to courts in Australia over three separate occasions. Indeed, on the subject of the recurring themes, your Honour’s appointment can, in some ways, be traced back to the beginning of your Honour’s career in the law as the Associate to the first Chief Justice of this Court, Sir Nigel Bowen. Your Honour’s reputation, both at the bar and on the bench, is one of great intellect, learning and knowledge of the law. Your enthusiasm for and contribution to maritime law in particular and through it to international law is of great renown, a field in which your Honour is an acknowledged world leader. No doubt, your return to this court, following your Honour’s sojourn in New South Wales will lead to greater engagement with the admiralty jurisdiction. It is indeed fitting that your Honour should be joined on the bench today by the Chief Justice of Australia and the President of the Court of Appeal of a State’s Supreme Court.

Their Honour’s presence on the bench, and indeed, your Honour’s own judicial history serves as a palpable reminder that the Federal Court of Australia forms part of – an essential part of an integrated system of courts in this country, administering both Federal and State jurisdiction with a single appellate court at its apex. Australia has yet to move to the establishment of a single system of courts, a vision held by many of Australia’s leading jurists over the decades. Indeed a vision extending as far back as federation itself. Nevertheless, progress has been made and the close relationship and comity of all of the courts of this country must be the envy of other Federal systems. Your Honour’s apparently seamless movement from the New South Wales Bar to the Federal Court to the Court of Appeal of New South Wales and now back as Chief Justice of the Federal Court provides something of a personification of the comity and mutual respect of the Federal and State Courts in Australia.

If your Honour would permit me a brief diversion into parochialism to refer to some aspects of your Honour’s connection to Western Australia, in particular, from your Honour’s time in practice of the Bar. Your Honour was, in 1998, among the last barristers to be appointed as Queen’s Counsel in Western Australia, having been appointed as Senior Counsel in New South Wales in 1994. Accordingly, while your

Honour’s appearances on the eastern seaboard are recorded as JLB Allsop SC, in Western Australian and Western Australia judgments, your Honour is recorded as JLB Allsop QC. As my colleagues in Queensland and apparently now Victoria begin their clamour back to the future, as it were, to revert from Senior Counsel to Queen’s Counsel, perhaps your Honour is best placed to provide some guidance as to whether the change of that one letter made all the difference as you crossed the Nullarbor.

One Western Australian matter in which your Honour was recorded as holding a brief in 2001, just prior to your Honour’s first appointment to this court, was, of course, the litigation between the liquidator of Bell Group and a collection of national and overseas banks, a case which his Honour Justice Owen in latter years took to referring as the case with the four letter world. 12 years on, that saga continues. By saying just prior to your Honour’s appointment, I don’t mean to imply by the timing that there was any cause or relationship between your Honour having been briefed in that matter and your Honour’s decision to accept judicial appointment. Although, I should note that if there were such a connection, your Honour would not have been the first person to accept appointment in order to extricate themselves from that case, nor is it likely that your Honour would have been the last.

Even so, seven years later when Owen J delivered judgment following the longest trial in Western Australia’s history, your Honour’s influence on that litigation continued to be felt because when his Honour sought to find a succinct description of one of the analytical tasks he had to carry out, while he referred to various High Court, New South Wales, Victorian and Western Australian judgments, the passage that his Honour settled on as best describing the task before him was one taken from your Honour’s judgment on this court in ..... I’m pleased to say that that is not one of the matters in relation to which special leave has been granted. The Bar in Western Australia looks forward with great confidence to your Honour’s contribution, not only to this court but to the law in Australia generally. We look forward to appearing before your Honour and wish your Honour all the best in this latest phase of your judicial career. May it please the court.

ALLSOP CJ: Mr Slater.

MR SLATER: Thank you, your Honour. May it please the court. It gives me great pleasure to welcome you, and that pleasure is enhanced by being able to deliver this welcome and congratulations from the profession of Western Australia in the presence of so many distinguished guests, including your fellow judges, the Chief Justice of the High Court of Australia, the President of the Court of Appeal, and as I said your fellow court judges and past judges of this court, and the many other distinguished guests in the public gallery. Some of those are now, obviously, officially addicted to the ceremonies or they are of the support group for you for the sometimes enduring ceremonies because I note that at least French CJ, Marshall, Mansfield and McKerracher JJ enjoyed your welcome ceremony in the court in Sydney earlier this year. Fortunately for them, I don’t propose to traverse the eloquent ground that that welcome ceremony covered.

As Mr Colbran QC observed, when he asked what possible tributes could remain to be said, whether as to your intellect or diligence, knowledge of law or the contribution to legal education, and the answer was “there’s nothing more to add”. That was a common thing to the opening remarks of those welcoming you then, and then universally, in the absence of any further new material, there was a procession to refer to the light that broke at yonder window, it was the east and Chief Justice Allsop was the sun. Those were high words and great praise for you. I don’t propose to revisit them – my colleagues will find them at the website of this court. I happily adopt and endorse that high praise for your work and achievements. Today, of course, is also important for the Law Society, the start of Law Week, a national celebration of law, and it is in many respects fitting that the Law Society marks their opening with a welcome to a Chief Justice to this important national superior court.

Law Week is a national event, as I said, and is an important point in the legal calendar when lawyers shake off some of the mystique that surrounds their work, opens their world to the public and reflects on all the good things and the worthy aspects of our profession. I can think of no better way to mark the start of Law Week 2013 than to welcome to Western Australia a new Chief Justice to the Federal Court of Australia. Now, having incorporated by reference the great tributes paid to you on your first welcome as the Chief Justice of this court, I looked to the content of that court to see what it was that would be relevant to Western Australia practitioners. It may not always appear that Western Australia is playing the same game as the rest of Australia but it would be wrong to believe that the community in Western Australia is any less concerned with the important things that were addressed in your first official welcome. We do have concerns and we’re grateful that this court spends time with us to address them. We’re occasionally left to fend for ourselves in some important Federal Court areas.

After a couple of years in the naughty corner, we have now obviously done seriously wrong as the High Court is returning to Western Australia to tell us a few things about the rules. Contrary to the mirth of that observation may engender, it is an important connection that the local practitioners have with Superior Court. We welcome that engagement with this court, its Court of Appeal and the High Court as the way that it enables our community to engage with the law, to learn of the law and to learn of it not just from transcript and media sound bites. So what exactly were the important areas that were addressed in your earlier welcome? I note that you refer to the jurisdiction of this court as not being narrow or skinny, and that this court has developed a respected jurisdiction among the community of courts, not only within Australia but internationally. I note that you refer to your important work and those others speaking at that ceremony refer to your important work in Maritime Law, and that you hold the nickname “the Admiral”. Your important contribution to the development of Maritime Law and the promotion of maritime arbitration in Australia and your interest in commercial arbitration is also an area of interest.

These are the fields mentioned by Mr Quinlan SC a moment ago. Importantly, you chose to mention your interest in administrative law, recognising that cautious and fragile sovereignty of humanity at the heart of justice, as we comprehend that word.

Several speakers at your welcome in Sydney mentioned that you’re a keen observer of the human dimension to your work. And indeed, in 2010, you said that you found dealing with the profoundly felt fears and the hopes of struggling decent people both rewarding and important, however hopeless their cases may sometimes appear. Mr Dobson, representing the practitioners in New South Wales, observed that that connection to the dignity of humanity is the reason why the law is often not understood by linear or mathematical or strictly logical means.

Fittingly, you left your closing observations for an important element of Australia’s psyche and a critical element to our local community, that being the important Aboriginal heritage around us and within us. I note that you have taken Sir Nigel Bowen as your role model and the community looks forward to the development of his courteous style, his business-like hard working ethic and, where necessary, his authority to command obedience. As I said, you placed at the end of your speech, a reference to the Aboriginal community and the effect of laws on them. At your welcome Mr Michael West, a member of the cultural representative of the metropolitan local Aboriginal land council, welcomed you and said that he welcomed you on behalf of not only his local group, the Gadigal but also all Aboriginal and Torres Strait Islander and traditional owners, and paid respect to all of those ancestors who have gone before us, as he and we are the sum of those who have gone before us.

The Law Society also pays respect to the traditional occupiers of this land, the Nyoongar community and their elders past and present. Aboriginal people have had a profound effect on the way justice is delivered in this state. The way justice is delivered has also had a profound effect on the Aboriginal community. How that community interacts with the law and how it responds in the past incurred a terrible toll upon the Aboriginal culture. The community looked with interest to your view that the work of this court could act as a restorer of faith among the Aboriginal community and the wider community, through the jurisprudence of the Native Title Act and relative legislation. I note that it is Native Title claims that bring your Honour and some Federal Court co-Justices to this jurisdiction to look at, and the community looks forward to your contribution in that area.

You have set very high standards for this Court and your collegiate approach to mentoring judges is to be commended. At his farewell to this Court, Chief Justice Keane, as he then was, said: “The skilled lawyers who bring to bear critical human intelligence to the analysis and refinement of the available data remain the most important resource available to the Courts and the community in the doing of justice.” I trust that you will find in the Western Australian division of this Court the skilled lawyers bringing to bear on the matters before your judges the analysis and refinement required to bring matters before the Court efficiently to a conclusion. Working efficiently is the reason the community pays respect and owes respect to the legal community. The law society is certainly working towards that goal. Lastly, I’m very proud to commend your appointment and welcome your Honour to Western Australia and to your role as the Chief Justice. The profession in Western Australia looks forward to working with you in this important role. May I please the Court.

ALLSOP CJ: Chief Justice French, President McLure, Chief Judges, Judges, former colleagues, Mrs Muirhead, ladies and gentlemen. Thank you, Mr Quinlan and Mr Slater for your kind words. Your warmth of welcome is most appreciated.

This is an occasion for the Court also. The Court has grown remarkably over the last 36 years. It overcame the opposition of some in the judiciary and the profession in the late 1970s and the early 1980s. It has seen its jurisdiction increase. It has seen the High Court prune its expansion. It developed with a remarkable group of judges in the first decade or so. It contained a diverse range of exceptionally talented people including the good friends the late James Muirhead and Sir William Forster among its galaxy of stars. It really was a remarkable group of people whose collective talents and personalities from all over the nation established a collegiate national spirit of civility, decency and intellectual rigour that has marked the Court and its jurisprudence since 1977.

I am honoured and humbled to be asked to lead the Court and to continue that tradition. If I may be permitted an anecdote as a former associate.  I recall going to Melbourne in 1981 and sitting in front of – as my associate is now – me, sitting in front of the then Chief Judge, Sir Nigel Bowen, Justice Brennan and Justice Deane in a tax case and then the Chief Judge, Justice Franki and Justice Deane in a patent case. One could feel the mental power encased and folded in the polite exchanges. It taught me the value of civilised discourse as the mark of a good court as part of the proper exercise of judicial power. That is, that civility is not an affectation but a proper incident of the exercise of that power. But just to show you how nothing has changed, the High Court overturned the three of them in that first tax case. When that happened, it was the only time I heard Sir Nigel Bowen mutter what might have been an intemperate remark. That mixture of intellectual capacity and polite search for justice has always marked the reputation of the Court, especially here in Perth.

Over the years I spent considerable time in Perth. I like it very much. I have friends here. For those of you who knew him, I was thinking this morning, a very fine Perth solicitor who I would have liked very much to be here today, the late Stephen Paterniti I came to know him well in the Bell litigation that has been mentioned. The Court has become national not only in its structure, but its outlook. This is in no small measure the consequence of the work of the judges and registrars of the Western Australian Registry including Chief Justice French, John Toohey, Malcolm Lee, Robert Nicholson and Christopher Carr.

National areas of responsibility, such as Admiralty and maritime, competition law, patents and native title jurisdictions have been led by the work of the judges of this registry, as will no doubt continue.

The critical importance of the recognition of indigenous land rights under law will find expression in the coming years more clearly in Western Australia than anywhere else in the country. Further, the national work of the Admiralty judges of the Court, I hope, will be undertaken in greater volume as the Court becomes recognised as a regional maritime Court. Much of that work will be in servicing the great shipping trade of this state which at the moment tends to go to Singapore, Hong Kong, or London.

I look forward very much to coming to Perth as often as I can. Thank you for the warm welcome and thank you for all coming. You do the Court honour in doing so.

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