Ceremonial Sitting of the Full Court

To farewell the Honourable Patrick Keane, Chief Justice

Transcript of proceedings

RTF version

THE HONOURABLE PATRICK KEANE, CHIEF JUSTICE
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE MANSFIELD
THE HONOURABLE JUSTICE DOWSETT
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE REEVES
THE HONOURABLE JUSTICE KERR

BRISBANE

3.48 PM, THURSDAY, 28 FEBRUARY 2013

KEANE CJ: Justice Gray.

GRAY J: Chief Justice, I start by conveying the apology of Justice John Logan, who specifically asked that his regret of not being present be mentioned. He is, as you're aware, sitting in the Supreme Court of Papua New Guinea, pursuant to the arrangement between the Federal Court of Australia and that court which began during your time as Chief Justice. On behalf of the judges of the Federal Court of Australia, I thank you for your excellent service as Chief Justice of this court. It has been an honour and a pleasure to serve with you. We are sad that you are leaving, but we wish you well as a Justice of the High Court of Australia.

KEANE CJ: Thank you, Justice Gray. Mr Fredericks, do you move?

MR D. FREDERICKS: May it please the court. First, may I acknowledge the traditional owners of the land on which we meet and pay my respects to their elders, both past and present. It is a great personal pleasure for me to be here today to represent the Attorney-General, the Honourable Mark Dreyfus, who regrets that his ministerial commitments have prevented him from attending this special sitting. The consequence is that he has entrusted in me the very welcome privilege of paying tribute to your Honour for your outstanding service to this court. I understand the Attorney-General will be attending your Honour's welcome ceremony to the High Court next Tuesday and will no doubt express his very great pleasure that Australia's judicial system will continue to derive great benefit from your service for time to come.

Before I begin, I would like to acknowledge the presence of the Honourable Paul de Jersey, Chief Justice of the Queensland Supreme Court; Chief Federal Magistrate John Pascoe; Her Honour Patricia Wolfe, Chief Judge of the District Court of Queensland; Mr Graeme Neate, President of the National Native Title Tribunal; and the Honourable Michael Black, former Chief Justice of the Federal Court of Australia. It is also wonderful to see so many of your family here on this special occasion. In fact, perusing today's guest list, it appears that your wife, Shelley, is leading a 25-strong family delegation. They, of course, join your friends and your judicial colleagues here today, both past and present, to wish you every success in the next chapter of your life.

Your Honour, at your swearing in ceremony to the court in 2010, you referred to the high responsibility of keeping the court on course. You will be pleased, and perhaps relieved, your Honour, to hear that your colleagues have likened your Honour's steerage of the court since your appointment to the unparalleled navigational skills of the philosopher in Plato's Republic. Some of your Honour's colleagues have suggested that one of the factors that attracted your Honour to the federal court was a perception that the courts work involved a wide range of cases of unusual difficulty, particularly tax, intellectual property and competition cases. Pointing to two instantly recognisable cases in which your Honour sat on the Full Bench, ASIC v Fortescue Metal Groups and British American Tobacco Australia v Secretary of Department of Health and Ageing, I'm confident that your perception of the court's wide remit and varied work was, indeed, correct.

The reputation that your Honour brought to the court in 2010 was one of prodigious intellect and determination, a reputation, if I may add, that has only been hance during your time as Chief Justice. In December 2011, your Honour was awarded an honorary Doctorate of Law by the University of Queensland, adding to the very impressive list of academic accolades that have been bestowed on you. Your commitment to the timely delivery of judgments in both first instance and appeal matters has been remarked upon in glowing terms by both the judiciary and the public. To illustrate my point, the Australian recently awarded your Honour the moniker Speedy Keane.

Many have tendered various suggestions to explain your Honour's extraordinary output, ranging from early morning starts to your Honour's special ability, to recall in your mind's eye the content of Lexus Nexus, to the record-breaking typing speed of your executive assistant. However, the remarks that most frequently describe your Honour's attributes are disciplined work practices, a strong grasp of legal principle and a precision of thought and expression. Perhaps, though, your Honour's greatest skill has been your inherent ability to lead and motivate others. US present John Quincy Adams once said, 'If your actions inspire others to dream more, learn more, do more and become more, you are a leader.' Your judicial colleagues have proffered that your leadership by example has maintained and strengthened the court's commitment to intellectual rigour and the timely delivery of judgments.

I know your Honour has also encouraged the extension of judicial and staff education programs for supporting judges in other countries, particularly Papua New Guinea and Indonesia. This work is seminal to strengthening the rule of law across the Pacific region and building institutional and individual capacity. Your recent collaboration with judicial officers from Indonesia, Papua New Guinea, China, Bangladesh, New Zealand and the Republic of Vanuatu demonstrates your commitment to this work and, again, your leadership by example. Your Honour's interpersonal skills have also been noted as a hallmark of your leadership of the court. Staff have conveyed their admiration of your Honour's ability to recall the minutia of one-off conversations, sometimes several months later, as well as your innate skill of being able to recall their name after just one meeting.

Your Honour is also well respected for your ability to evoke images that are instantly recognisable and comprehensible to those from many walks of life. I'm told that some well known examples include your statement that, 'Opening the Tax Act was like opening a door to a parallel universe,' or your description that Australia's approach to international arbitration could be seen as 'sheep passing a resolution for vegetarianism whilst the wolves remain unconvinced'. Perhaps the most notable, however, was reported in the Australian Financial Review, when you likened the challenges facing judges in answering great ethical, moral and political questions to Bob Dylan's musing, 'Ain't no point talking to me. It's just the same as talking to you.' No doubt, these qualities contribute to the observation by one of your colleagues that your Honour has a natural talent for making people love you.

A less dramatic observation from colleagues is that you lack pretention and have an excellent sense of humour. Whichever view you prefer, your Honour can be confident that your collegiate spirit will be sorely missed long after you have left. The role of Chief Justice, of course, involves the stewardship and management of the court's administrative affairs. Although some may see this as less stimulating or captivating than judicial determination, budget matters, organisation efficiency, accommodation and issues affecting the court's structure are all critical ingredients to the effective delivery of justice. Your Honour has been instrumental in the oversight of significant administrative changes for court, including the acquisition of responsibility for native title mediation, improvements in case management proceedings and the genesis of the Heads of Jurisdiction Consultative Committee to foster greater administrative cooperation between this court, the Family Court of Australia and the Federal Magistrates Court.

However, the most conspicuous administrative change has been the court's technological progress. At your welcome ceremony to the court in 2010, your Honour noted that you were inheriting a court of innovation, yet it seems no mention here that some media outlets have labelled your Honour a technophobe, with Applegarth J of the Queensland Supreme Court advising that earlier in your career your Honour had threatened to quit the bar if you were ever forced to use a computer. But any technophobe tendencies are outweighed by your Honour's inquisitive mind and strong vision for the future of the court. Indeed, your Honour has taken the lead in supporting the movement towards a complete electronic file and the introduction of compulsory electronic filing. This is pivotal work that will support the effective and efficient delivery of court services into the future.

Your Honour, it was noted at the farewell of your predecessor in 1991, then Solicitor-General Dr Gavan Griffith predicted that in 20 years time, it would be said that the first two Chief Justices of the court were great Chief Justices. I think that it can be said that your Honour has also unquestionably met this lofty standard, despite having been the Chief Justice for a relatively short period of time. This speaks volumes about your Honour's commitment and character. The court's long-serving and estimable registrar, Mr Warwick Soden, has perhaps best summed up everything that could be said about your Honour's stewardship of the court in his recent observation: 'Chief Justice Keane has been an outstanding leader of the court.' Your Honour leaves behind a legacy of hard work, dedication, diligence and proficiency.

It has been a personal privilege for me to be here today to have the very great honour of expressing my appreciation and the appreciation of the Australian Government and people for your dedicated service to the Federal Court of Australia. On my own behalf, I sincerely thank you for the respect, goodwill and understanding you extended to me in all of our dealings, including through the Heads of Jurisdiction Consultative Committee. I firmly believe this has helped to secure the positive and constructive relationship which exists between the Federal Court and the Attorney-General's department. On behalf of the government, I extend sincere best wishes to your Honour as you begin a new phase of your judicial career as the first Chief Justice of the Federal Court to be appointed to the High Court. May it please the court.

KEANE CJ: Thanks, Mr Fredericks. Mr Traves.

MR R. TRAVES SC: May it please the court, it is a privilege to speak today on behalf of the Bar Association of Queensland. I also have the pleasure of appearing on behalf of the Australian Bar Association, whose newly elected president, Mr Michael Colbran of Queens Counsel, would wish me to pass to your Honour his warm regards and apology for not being here today. The Queensland and Australian Bars recognise your Honour's significant contribution to the work and the administration of the court. In saying that, however, I'm reminded by a colleague of mine with whom your Honour attended St Joseph's College of the wisdom of one of the Christian brothers you taught you both. Things then were much as they are now. Your Honour always finishing your work before your classmates, looking for things to do, much to the irritation of the brother, who said presciently of the future Queens Counsel, Solicitor-General, Court of Appeal Judge and Chief Justice of the Federal Court, 'Boy, Keane, you will never keep a good job down.'

It is difficult concisely to capture what makes an effective leader of a court. Leadership manifests itself differently in different walks of life. What your Honour has demonstrated, however, is, singular intellectual rigour, industry, commitment to the due and efficient administration of justice and reliability in performance of that task fundamental to the trust reposed in a judicial officer, that is, the ability reliably and courageously to judge. And your Honour, through force of personality and the ability to engender common purpose, has encouraged the court to follow your example. That, by any touchstones, may I respectfully suggest, is good leadership. And, it might be added, your Honour has successfully demonstrated that in a modern federation, the Chief Justice of this court can be located anywhere within the country, as it should be.

The Australian Bar has appreciated your Honour's support for the involvement of judges of this court as members of the Supreme and National Courts of Papua New Guinea. This is a cause close to the heart of the Queensland Bar, which takes an active interest in the system of justice within Papua New Guinea, regularly sponsors Papua New Guinean lawyers through our bar practice course, and under the watch of Justice Logan of this court and Mr Bond of Senior Counsel is there sponsoring advocacy education courses. On the bench, your Honour, although always exacting, has retained the courtesy, unpretentiousness, willingness to listen and good nature that made you such a popular member of our bar. There has, of course, been much written of your Honour's elevation to the High Court. Not even your Honour's natural humility has, of recent times, been sufficient to rebut media inquiry and comment on your Honour's career and interests.

The reports reveal, of course, a man of quite broad and extraordinary talents. So perhaps you will forgive the rest of us for some small relief, even quiet satisfaction, at reports that your Honour, to your disappointment, and notwithstanding a keen interest in cricket, is not also able to bat like Don Bradman. Your Honour's swearing in ceremony in the High Court is, of course, on Tuesday of next week. Those who know you well have always suspected the highest court in the land to be your Honour's natural habitat. Those who stand here today with me from the Queensland Bar, and all of those whom I represent, would wish me to take this opportunity to thank your Honour for your exemplary service to the Australian community as Chief Justice of the Federal Court and to wish your Honour every success and happiness when your Honour takes your new position on the High Court of Australia next week. May it please the court.

KEANE CJ: Thanks Mr Traves. Ms Bradfield?

MS A. BRADFIELD: May it please the court. It is with congratulations that I speak on behalf of the solicitors of Queensland to record our gratitude and esteem for your work as Chief Justice of the Federal Court of Australia administered here from Brisbane. The president of the Law Council of Australia, Mr Joseph Catanzariti, who is regrettably unable to attend today has also asked me to convey the commendation of the Law Council of Australia and to be associated with my remarks on behalf of the national legal profession. It is notable that at your Honour's swearing in to the position of Chief Justice in 2010 the Law Council of Australia was represented by my colleague and former Queensland Law Society president, Mr Glen Ferguson. As a Queenslander, Mr Ferguson was honoured to welcome you to be the first from this State to assume the role of Chief Justice. I am equally honoured to be here today to mark your achievements as Chief Justice and to wish you well in your new role.

When you assumed the office of Chief Justice in 2010 my predecessor as president of the Queensland Law Society, Mr Peter Eardley said, every accolade of your Honour is well deserved and well earned reflecting not only the great admiration we all have for your legal talents but also the great personal affection we all have for you. It is also right that I congratulate the attorney for his wise choice. Your Honour, you have the responsibility to lead one of the great traditional institutions of our legal system. Your outstanding capacity for hard work is legendary. We are very confident that your learning, your diligence and your humanity will enable you to be a beacon in judicial decision making throughout Australia. Your Honour has rightly stated that judgment writing is not a popularity contest. Our decisions are necessarily made. The prominent standing your Honour holds in the profession throughout Australia is evident by the universal willingness to accept your learned reasoning.

Today I can reaffirm those sentiments and commend your Honour to look back with pride at your time as the Chief Justice of this honourable court. As Chief Justice your Honour has led a court that has risen to the demands of the times and has sought to engage with litigants. In doing so, your Honour has been supportive of better facilitating the business of the court and has also been a keen supporter of initiatives to address access to justice. One such initiative is this very ' in this very court was the pilot of the self-representation federal civil law service operated by QPILCH. Not only do programs such as this strengthen access to justice but the collateral benefit is commendable ' more effective use of court time and resources. This is particularly important in an age when everyone in the justice system is asked to do more with less. Access to justice for all parties from self-represented litigants to small business to large commercial interests is a fundamental tenant of our legal system.

Your Honour rightly saw a focus on effective case management and communication of parties as an important aspect of the court furthering justice for all. Your Honour initiated programs to reach out for participants in the court process to seek constant improvements. This is commendable and has set a benchmark for collaboration of litigants and their lawyers to the mutual benefit of all. As Chief Justice you have also seen significant steps of reform being taken notably this including the making and commencement of the new Federal Court rules in 2011 which replaced those adopted by the court in 1977. These were the product of an ongoing process aimed at producing a set of modern rules appropriate for a court which exercises statutory jurisdiction. The introduction of new rules has meant a time of learning for all participants in the court process and one that has been handled faithfully and diligently by your Honour.

The Society also takes some pride in the fact that you commenced your days of practice as a solicitor. We firmly believe that those solid, practical and sensible foundations have played some small part in your Honour's following successes. Many of the Society's members have their special stories or anecdotes of your days in practice. Suffice to say that they have all been delivered with genuine warmth and affection for the principal actor. On behalf of the solicitors of Queensland regardless of whether they might be litigators or casual readers of your judgments I would like to celebrate your achievements as Chief Justice of the Federal Court of Australia and express the profession's admiration for your legal intellect and humanitarian way you apply it. In fact the only sorry in this day is the fact that we will lose or the local legal profession will lose you to Canberra. Finally, personally, I would like to wish your Honour every success in your new role. It will have new challenges and new opportunities but through application of your usual exceptional learning, diligence and humanity I am in no doubt that it will be a role at which you will excel. May it please the court.

KEANE CJ: Thanks, Ms Bradfield. Justice Gray, Mr Fredericks, Mr Traves, Ms Bradfield, thank you all very much for the kind things you've said. Mr Traves, I have to say that I am truly sorry for yet again putting you in the position where you are obliged to wrack your brains to find nice things to say about me. This, I think, is the third occasion of my comings and goings in my inability to hold down a job that you have had to perform this duty, and I gather you will have to do it again on Tuesday. All I can say is don't give up now. My retirement from this court is an occasion of some personal sadness for me but it is a great comfort that so many of my colleagues and friends have been able to attend today. I acknowledge in particular Chief Justice de Jersey and my colleagues from the Supreme Court of Queensland. I acknowledge also Justice May representing Chief Justice Bryant of the Family Court of Australia, Chief Federal Magistrate Pascoe and Chief Judge Wolfe.

To all who are here may I say that I appreciate your attendance very much and to my colleagues on this court. In particular may I say that I have greatly valued your friendship and support over the last three years. I should also say that while I am sad to be leaving I am delighted that the court will be in the hands, most capable hands of my successor James Allsop, and it is also of some comfort to be able to reassure the members of my family who are here that they need not be alarmed that my retirement from this court will mean that I will be spending more time with them.

I would like to take this opportunity now to say something about my court. Sir Nigel Bowen the first Chief Justice for this court stated that his ambition for the court was that it should be a court of excellence, innovation and courtesy. Sir Nigel's vision for the court was successfully pursued for many years by my predecessor Dr Black who joins us today. Over the past three years I have had the great privilege of working within a court where we have all sought to continue the pursuit of that vision. It's a privilege for which I'm very grateful. I cannot, of course, speak with authority about the issue of courtesy. That is something of which must judge. As to innovation however I am fully convinced that this court is at the forefront of the innovation which is necessary to ensure that the central processes whereby justice is administered to the satisfaction of the community are as efficient as is humanly possible. The increasing complexity of commercial litigation threatens to overwhelm the ability of our courts to resolve disputes in a timely way.

The crucial importance of ensuring that we are able to discharge our function in this regard means that we must be open to new strategies. This week in Sydney for the first time in Australia we have two judges hearing evidence in a case involving multiple patents, complex claims and mountains of documents. With the cooperation of the parties the litigation has been so structured that each judge will hear and determine groups of claims associated with one of two sets of patents but they will together hear the evidence which overlaps all the patents. In this way it is hoped the costs will be saved and a speedier determination facilitated. Dealing with and digesting the vast abundance of data which is available to the parties and to the courts is the great challenge for our strategies of case management. The process of discovery has become so burdensome that it has spawned a separate industry to help lawyers to cope with it.

The court recognises that it is essential to ensure that in all litigation the game must be worth the candle. The community expects and is entitled to know less of us. To that end the court's new rules and the case management strategies deployed by its judges serve to ensure that discovery is not an end in itself but is tailored to the requirements of justice in each case. I think it is not too much to say that the court is a leader in embracing electronic filing and organisation of its workload. We have already implemented a system of electronic filing and we are moving apace to establish an electronic court file. We know that this is appreciated by the legal profession and by others who use the court but the capacity to store and handle enormous quantities of data can only ever be but a small part of the efficient administration of justice. 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.

We on the court know that we need to help them to do their job not to make their difficult and important job even harder. We know that if the court is to maintain its innovative edge it must maintain its lines of communication with the legal profession and through the profession with the community at large, and so we have been and remain determined to be open to constructive criticism from those best placed to speak to us of the needs and priorities of their clients who are our litigants. In this regard we have over the last three years been greatly encouraged by the court's liaison with State bars and law societies and especially with the ABA and the commercial law section of the Law Council of Australia under the leadership of Mr David Gasner.

The commercial law workshops arranged between the court and the Law Council have been a highlight of creative cooperation as we seek to develop active techniques of case management with a view to speeding up the resolution of ever more complex litigation. The heavy litigation conducted in this court especially in the various commercial fields means that this litigation will never be inexpensive but we can ensure that it will be value for money and that the delays, uncertainties and distractions which are the most serious costs of litigation are minimised for the parties. The importance of that endeavour and of our success in that regard is, I think, fairly reflected in the financial pages of our national newspapers on a daily basis.

For those litigants who are not engaged in complex commercial litigation we have taken a leaf out of the book of the Supreme Court of Queensland. Within that court for some years now QPILCH has operated a service to assist litigants in person with advice and representation. Over the last year we have hosted a pilot service as Ms Bradfield mentioned organised by QPILCH in this building. The pilot was a great success. I record the court's gratitude to Mr Tony Wridget and the dedicated staff and volunteers of QPILCH whose commitment to assisting individuals who find themselves caught up in the difficulties and uncertainties of litigation with the assistance they have rendered to litigants and to the court. They embody what is best in the legal profession in terms of dedication to justice.

Unfortunately limits on funding have meant that we have been obliged to discontinue the pilot at the very time when we had hoped to be expanding it to Sydney and Melbourne and the other Registries of the court, but watch this space. The court's virtues as a court of innovation and excellence have, I think, nowhere been as clearly on display as in the resolution of our native title cases. In the financial year 2008/09 there was seven determinations of native title claims by the court. In 2009/10 there were nine. In 2010/11 there were 26. In 2011/12 there were 36. In the six months to the end of 2012 there were 17 and we anticipate that for 2012/13 there will be a total of 57.

I would like to be able to claim some of the credit for this remarkable improvement in performance but alas I cannot. The credit for the strategies of rolling trials which have been devised and implemented by the court must go to the judges of the court responsible for the Native Title list. It would be invidious for me to refer to individual judges by name but they know who they are. Much credit in this regard must also go to our registrars, Louise Anderson, Ian Irving, Chris Fewings and formerly June Eaton. These judges and registrars have been responsible for the court's brilliant performance in this the area of our work deserving of the highest priority but in terms of excellence, in terms of performance the outstanding aspect of the court's performance over the last three years has been the ongoing ability our judges to do more with less.

The number of our judges has declined from 50 in 2006 to 44 today not counting three pending retirements. Despite a decrease in the number of judges in a significant number and despite an increase in the number of matters filed in the court over the previous year last year 94 per cent of civil cases excluding Native Title claims were completed in less than 18 months. That is an increase from 90 percent in the previous year and that is so despite the fact that complex cases now make up a greater proportion of this court's case load than in previous years as less complex cases are now dealt with in what will become the Federal Circuit Court.

That we have been able to continue to meet the level of performance we have set for ourselves has been due in no small part to the work of our Principal Registrar, Mr Warwick Soden. He is a world-class court administrator. Australia is lucky to have him and I have been a very lucky Chief Justice to have been able to call upon his skills, energy and acumen and while I am recording my personal debts I should also say that I am deeply grateful to my executive assistants, Nancye Wallace and Ann Tarragano. It is never easy to bring order out of chaos and Nancy and Anne have dealt with the chaos that emerges daily from my desk with a brisk but calm efficiency which has been appreciated by everyone with whom they are dealt.

Their efficiency would be frightening if they were not such a pleasure to work with. In the end credit for the performance of the court over the last three years lies with the judges of my court. Notwithstanding the reduced numbers presently on strength to do the work of the court our judges have continued day in, day out to deal efficiently, fairly and justly with the relentless grind of difficult but important matters, the timely resolution of which is of vital importance to the Australian community. Their performance has been heroic. I am very proud to have worked with them. The court will now adjourn.