Ceremonial sitting of the Full Court
For the farewell of the Honourable Justice Kenny AM
THE HONOURABLE DEBRA MORTIMER, Chief Justice
THE HONOURABLE JUSTICE KENNY AM
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE O’BRYAN
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE MCELWAINE
THE HONOURABLE JUSTICE HESPE
THE HONOURABLE JUSTICE BUTTON
THE HONOURABLE JUSTICE HORAN
MELBOURNE
9.30 AM, FRIDAY, 24 NOVEMBER 2023
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MORTIMER CJ: A warm welcome to you all. We are on the country of the people of the Kulin nation, and the area where this building is located is generally recognised as the country for people of the Eastern Kulin Nation. On behalf of the Judges, Registrars and staff of the Federal Court, I offer our respects to the people of the Eastern Kulin Nation, to their ancestors and their elders. I also acknowledge the challenges facing the Australian community in our relationships with First Nations peoples, including how First Nations peoples are treated by the justice system.
I acknowledge the many distinguished guests who are here today, including serving and former justices from many Courts. Justice Kenny is held in high regard by her colleagues in the judiciary and by the profession, and it is fitting to see such a wonderful turnout today. Most importantly, members of Justice Kenny’s family as well as her friends and colleagues join us here today, a chance to acknowledge their contribution to Justice Kenny’s career and for them to see how much she is appreciated by others.
Justice Kenny, you are one of the longest serving Judges on our Court, certainly in recent times. It is not possible to canvas all the contributions you’ve made. I will touch on some of your service within the Court and then outside it and mention a few decisions. Prior to being appointed to this Court from the Victorian Court of Appeal, you had already held a number of public offices. Since joining this Court, you have continued that additional public service, especially in relation to holding appointments on the Administrative Appeals Tribunal and the Australian Electoral Commission. In recent years you have been Acting President of the Administrative Appeals Tribunal and the Chairperson of the Australian Electoral Commission, both very significant roles in addition to your work as a Federal Court Judge. You are always generous with your time to perhaps your equal favourite place to the Court, universities, and I know you were a very popular Judge in residence at Melbourne Law School in 2014. You have been active on the Court’s committees in more recent years, especially as Chair of the Library Committee and Chair of the International Development and Cooperation Committee, both very important committees to the Court’s work, and these kind of commitments, again, are assumed on top of ordinary judicial workload, and that is why it is important to recognise them.
In terms of your decisions, it’s hard to know where to start and where to end. Might I say in my 10 years as a Judge on this Court, I have enjoyed sitting with you on Full Courts. You are always insightful, and your keen intellect cuts through to key issues. You could ask counsel hard questions, but you are always unfailingly polite and obviously genuinely interested in what counsel have to say. One of our colleagues has described you as a role model for the qualities that Judges should try to embody. She said, “WWSD. What would Sue do?”
On this Court you have developed an expertise in intellectual property, including patents, and you’ve been involved in many difficult cases. You are regarded as having shaped the law of trademarks, patents and copyright, both as a trial Judge and in your Full Court work. There is, for example, the famous McCormick’s Spice trademark case and patent cases involving all manner of subject matter, from flocculants for mining waste treatment to electronic traffic signals. Counsel in one of your last major patent trials about a new and improved anaesthetic, who may or may not now be sitting on the Bench with us, described you as – and I quote – “a majestic swan serenely sailing above the parties’ many pleading and procedural spats.”
Aside from intellectual property, your 2014 decision in Richardson v Oracle was a watershed case in terms of sweeping aside the notion that successful discrimination and harassment cases could not and should not attract large awards of compensation. It has been described as long overdue judicial recognition of the pain and suffering experienced by sexual harassment survivors with impacts felt beyond its immediate context. Finally, an earlier decision of yours in 1999 called Perera v Minister became a frequently cited and authoritative examination of the need for adequate interpretation for persons from a non-English speaking background in order to ensure procedural fairness is afforded to them in the conduct of a review hearing. You drew on United States and Canadian authorities to make the point, and I quote, that “interpretation must be of a high enough quality to ensure that justice is done and seen to be done.” Your contributions to the public law jurisprudence of this Court, as with the intellectual property jurisprudence, have been considerable.
Justice Kenny, like the judge for whom you worked as an Associate, Sir Ninian Stephen, you are self-effacing and you do not enjoy the spotlight. Today, you just need to put up with it because all eyes are deservedly on you. You are one of the kindest and most compassionate of colleagues, always ready with a sympathetic ear, whether about tricky legal or procedural issues or about matters outside work. You have brought to your judicial work a combination of powerful and wide-ranging intellect, careful insight, compassion and thoroughness that will be missed, and there are many of us who mourn the fact there will be no more Justice Kenny judgments to consult.
On behalf of all the present and former Judges of this Court, the Registrars, and all the staff who have worked with you over your many years on this Court, I thank you for your long and dedicated service and your collegiality. I wish you many years of happy engagement with your family, including your grandson Oscar, and with whatever roles you decide to pursue. Justice Kenny, thank you for your service.
I now invite the Honourable Mark Dreyfus KC MP, Attorney-General for the Commonwealth, to address the Court.
MR M. DREYFUS KC MP: May it please the Court. I acknowledge the traditional custodians of the land on which we’re meeting and pay my respects to their elders past and present. I extend that respect to any Aboriginal and Torres Strait Islander people here today. It’s a great privilege to be here on behalf of the Australian Government and the people of Australia to celebrate your Honour’s service as a Justice of the Federal Court of Australia. I would like to convey the Australian Government’s appreciation for the significant and lasting contribution your Honour has made as a Judge of this Court. Your Honour retires after 25 years of service to the Court, and today we celebrate your long and distinguished career.
Your Honour has made considerable contributions to the improvement of the law and the justice system. Your Honour’s dedication to the profession has inspired countless people, and your many colleagues in the judiciary and the legal profession joining us today is a testament to that. May I particularly acknowledge the Honourable Justice Michelle Gordon, Justice of the High Court of Australia; the Honourable Susan Crennan, former Justice of the High Court of Australia; Emeritus Professor Rosalind Croucher, President of the Australian Human Rights Commission; the Honourable Michael Black, former Chief Justice of the Federal Court of Australia; and other current and former members of the judiciary, members of the legal profession, and distinguished guests. I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you. Today we are joined by your husband, Ross, your children, Kam, Anthony and Panat, and other members of your Honour’s family.
I do not have time to address in full your Honour’s many accomplishments. It is, however, with great pleasure that I speak to a few of the achievements throughout your Honour’s career and the many wonderful qualities you hold which inform the contributions that you’ve made to this Court. Your Honour has always been described as an orator and storyteller, so it is no surprise to those close to you that your Honour pursued a career as a Barrister.
In 1976, your Honour graduated from the University of Melbourne with a Bachelor of Arts with Honours, and, as the recipient of the Dwight Prize for History. In 1978, you went on to attain a Bachelor of Laws with Honours, also from the University of Melbourne, and were awarded the Supreme Court prize. In 1979, your Honour began your legal career as an associate to Sir Ninian Stephen, then a Justice of the High Court of Australia.
Your Honour was called to the bar in 1981, and quickly earned a reputation in constitutional and administrative law. Your Honour was part of the team of counsel for the Commonwealth in the Tasmanian Dam case. Your Honour’s love of learning endured. In 1985, your Honour travelled to England to complete a Doctorate of Philosophy at the University of Oxford’s Magdalen College. Your Honour once reflected that studying overseas opens people’s eyes to new propositions, new fields of knowledge, new ways of looking at things and different perspectives. This broader perspective undoubtedly contributed to your reputation for courtesy and insight at the bar and on the bench.
In 1997, your Honour was appointed as a Judge of the Court of Appeal of the Supreme Court of Victoria, the first woman appointed to that court. It was not long after, in 1998, that your Honour was appointed to this Court. On the bench, your Honour’s contribution extended to involvement on more boards and committees than I have time to list today, as well as authorship of a catalogue of publications. Your Honour became closely involved in the international engagement activities of the Federal Court of Australia, making significant contributions to judicial education and judicial development as the convenor of the Federal Court’s International Development and Cooperation Committee, and as the Regional Deputy President of the International Organisation for Judicial Training.
Your Honour played a key part in many inquiries as a part-time Commissioner of the Australian Law Reform Commission, including inquiries into secrecy provisions in Commonwealth laws, discovery, copyright, Royal Commissions and two inquiries into family violence. And I especially thank you for stepping in this year to act as President of the Administrative Appeals Tribunal. Your Honour has displayed dedication to your profession in a full and busy career while also putting the needs of others first. In a fitting tribute to your Honour’s contribution to the law and the legal profession, earlier this year your portrait was unveiled at the Peter O’Callaghan QC Gallery. At the unveiling, the President of the Victorian Bar, Sam Hay KC, described your Honour as a pivotal figure in our history.
Your Honour’s generous counsel and warm nature has been on display throughout your legal career and in your personal life. I am told your Honour has made a number of important contributions to the life of the Court, including through your calm manner and gentle sense of humour. Your Honour has always displayed a passion for helping those who are disadvantaged and marginalised; for example, by spending holidays teaching human rights law to marginalised communities in South East Asia. Your Honour is also an active leader at the University of Melbourne, sharing your intellect in teaching roles and as a fellow, principal fellow, judge in residence and now Chair of the Asian Law Centre Advisory Board.
Now that your Honour’s time at the bench has come to an end, I hope your next chapter will provide your Honour with more time to enjoy your many interests, which include travelling, art and literature. Perhaps your Honour may even put your extraordinary memory to the test and sign up for a TV game show. I am told your Honour has the ability to “name that tune” with marked speed. Your Honour, it has been a privilege to be here today to celebrate your remarkable career and contribution as a Justice of this Court. Your professionalism and your unwavering commitment to the improvement of the justice system, judiciary and the legal profession, both within Australia and abroad, are a wonderful example for us all. Your Honour, on behalf of the Australian Government and the Australian people, I thank you for the extraordinary contribution you have made to the judicial branch of government, and I wish you all the very best. May it please the Court.
MORTIMER CJ: Thank you, Mr Attorney. Mr Dunning, President of the Australian Bar Association.
MR PETER DUNNING KC: Justice Kenny, Chief Justice, Justices and former Justices of the Federal Court, distinguished guests all. Justice Kenny, it is my privilege and pleasure in equal measure to speak on behalf of the bar nationally to recognise your Honour’s extraordinary service to this Court. Your Honour has given more than a quarter of a century of service to this Court and to the Supreme Court of Victoria, and today is the day in which we recognise those achievements. It is well documented that your Honour is a distinguished academic and your Honour is a distinguished public lawyer. Perhaps, though, most importantly for the purpose of what I wish to address, is this. Your Honour was a pleasure to appear before in every aspect of this Court’s vast jurisdiction.
Your Honour was unwaveringly courteous, you were well prepared, you were thoughtful, and you were fair. You left litigants not only with a fair hearing, but the sense that they had had one. The bar can ask no more of a judge than that. In particular, your Honour has found a place in the important role that this Court has in bringing peace between us as a community and our First Nations People, and it is appropriate on a day like today that your Honour’s contribution in that regard is noted. Of course, nobody gets to a day like today without the support and assistance of family and friends, and your Honour has had the advantage of a loving family for this long period of judicial service.
Your family should take justifiable pride of all that is said of your Honour today, because of the contribution they have made to the distinguished judge you have been. However, rightly, the Victorian Bar say today is their day, because you are in every sense a product of the Victorian Bar. So, I shall pass to my learned friend, Ms Schoff, to speak on behalf of the Victorian barristers, but before I do, may I on behalf of the more than 6000 Australian barristers, I salute your Honour’s extraordinary service to this Court and to the people of Australia. May it please the court.
MORTIMER CJ: Thank you, Mr Dunning. Ms Schoff, President of the Victorian Bar Association.
MS GEORGINA SCHOFF KC: As your Honour pleases. I too acknowledge the traditional owners of the land on which we meet, the people of the Kulin Nation, and I pay my respects to their elders past and present. It is my great pleasure to appear on behalf of the Victorian Bar to commemorate the retirement of the Honourable Justice Kenny following a truly remarkable – and on my calculation – 26 years as a Judge of this Court. As we have heard, your Honour’s judicial career did not commence here, but a block or two south when you were the first woman appointed to the Victorian Court of Appeal in 1997. In October of 1998, you took the opportunity to change jurisdictions, accepting an appointment here that enabled you to be both a trial and appellate judge.
And through that work, you have made a substantial contribution to the law, hearing cases involving Constitutional law, taxation law, administrative law, industrial law, migration law and human rights and, in particular, intellectual property. Your output as a Judge has been prodigious. You have written or participated in at least 169 judgments reported in the authorised reports of this Court, the Federal Court Reports, and that is an extraordinary number – an average of about 6.5 a year – as well as hundreds of other judgments reported in other law report series. Your intellectual rigour and scholarly approach, combined with your wisdom and curiosity, is reflected in those judgments, which are regularly cited by Judges of the Federal Court and other Courts.
And perhaps it is for that reason that you have been described as “a judge’s judge”. But you have also been a barrister’s judge. Always a pleasure to appear before; courteous, considerate and engaged with the facts of a case as much as with the law. And from the bench you have championed the lot of women barristers, particularly in the field of intellectual property, where you have taken a particular interest, not only bringing your scholarly approach to the challenges we have faced, but also your time, which as we have seen has had many calls upon it.
Your Honour is not only an eminent and internationally-renowned jurist. As former Chief Justice the Honourable Michael Black AC KC has observed, your Honour has contributed to the law and society in many diverse fields. They include important leadership contributions in administrative law, law reform, and in the Federal Court’s work in the areas of judicial engagement and education in our region. You have held senior positions with the Human Rights and Equal Opportunity Commission, the Australian Law Reform Commission, the Council of National Judicial College of Australia, the Australian Secretariat for the Asian-Pacific Judicial Reform Forum, and, in 2020, you were appointed Chair of the Australian Electoral Commission for a five-year term.
In the academy, your Honour has been a member or Chair of numerous legal academic advisory boards and committees. These included the Council of the Australian Institute of Judicial Administration, the Advisory Board of the Centre for International and Public Law at the Australian National University, the Board of the Faculty of Law at Monash University, the Executive of Future Justice, and your Honour is a foundation fellow of the Australian Academy of Law. On your days off, you have taught at the Melbourne Law School in the Masters program, and in 2014, when you had some well-earned long service, you spent it as the judge in residence at the Melbourne Law School.
But you are intrepid, too. This was exemplified when you joined Professor Spencer Zifcak and his colleague, Alison King, both members of the Faculty of Law at the Australian Catholic University, in teaching a course on international human rights in Mae Sot, a town in northwestern Thailand on the border of Myanmar. It’s an area with many refugees, some of whom were your students. It can be a dangerous part of the world, but some of the dangers were not immediately obvious to your Honour. I am told that one day your students told you that it would be unwise to continue the class as there was a venomous cobra hiding under the steps of the classroom. I’m not sure what happened next, but I feel sure that your Honour saw to it the cobra was dealt with fairly, and with compassion.
And it has obviously not dampened your Honour’s enthusiasm for teaching. You are presently teaching in the field of Constitutional rights and freedoms at the Melbourne Law School. And whilst doing all of this you have authored an impressive number of articles and book chapters, and presented numerous seminars and speeches. But please forgive me as a representative of the Victorian Bar if a stray a bit from the brief and talk about your Honour’s career as a barrister. You have recounted that it was Sir Ninian Stephen who suggested that you might enjoy being a barrister. In 1979, you were appointed as his associate in the High Court, and you were indeed fortunate to have such a wise and prescient mentor, and one who was clearly a supporter of women in the law. Indeed, you were one of the first two women appointed as an associate to a Justice in the High Court.
In 1981, you signed the bar roll, reading with the Honourable Peter Heerey, later Justice Heerey of this Court, quickly establishing a busy practice in Constitutional, taxation, administrative and commercial law. One of your first appearances in the High Court – indeed, it may have been your first – was in the Tasmanian Dams case. But it was not all working with silks and trips to Canberra. You made yourself available for run of the mill cases too, slogging it out in the local Magistrates Court when a brief from your clerk, Ric Howells, sent you there.
After returning from Oxford with a doctorate, you resumed your career at the bar, and from 1991 to 1992 you were appointed counsel assisting the Commonwealth Solicitor-General. In 1996, you took silk. By the time of your appointment to the bench just one year later, you had established a reputation as one of the leading constitutional lawyers in the country. You appeared in nearly all the leading constitutional law cases in the 1980s and 1990s, cases to this day that are frequently cited in the High Court. You also appeared as counsel for the Australian Government at the International Court of Justice in The Hague, in proceedings brought against it by Portugal and Nauru.
Your distinguished career as a member of the Victorian Bar was marked earlier this year by the commissioning of your portrait that is displayed in the Peter O’Callaghan QC Gallery at Owen Dixon Chambers. On the occasion of its unveiling, Peter Jopling KC spoke of your extraordinary life of service and the example that you have set for those who come. You have done all of this whilst at the same time being the centre of your busy family life as the mother of three sons and a wife. When you joined the bar, only 5.5 per cent of its members were women. Inevitably, you have had to blaze the trail. Indeed, you have positively lit the way. Your leadership has contributed substantially to encouraging young people to follow your example and become barristers and aspire to judicial office and a meaningful and purposeful life. On behalf of the Victorian Bar, I thank you for your dedicated service and wish you all the best in your future career. If it please the Court.
MORTIMER CJ: Thank you, Ms Schoff. Mr Hibbins, President of the Law Institute of Victoria, and representing the Law Council of Australia.
MR MATTHEW HIBBINS: May it please the Court. I appear on behalf of the Law Institute of Victoria and the Law Council of Australia to farewell your Honour as a Justice of this Court. Luke Murphy, President of the LCA, is unable to join us here today, but he sends his apologies and thanks you for your service. I echo the acknowledgement of the traditional owners of the land on which we gather, the people of the Kulin Nation, and I pay my respects to elders past, present and emerging. And I also extend that respect to the First National People that may be with us today. I also acknowledge the Attorney-General, the Honourable Mark Dreyfus KC MP, the Honourable Deb Mortimer, Chief Justice of this Court and fellow Justices of this Court that are present here today. I also acknowledge my colleagues of the Australian Bar Association and the Victorian Bar, from whom we have just heard.
Your Honour, it is a great privilege to speak here today on your retirement from the Federal Court after 26 years of service. We also acknowledge your former service as a Justice of the Supreme Court of Victoria, where you were the first woman appointed to serve on the Court of Appeal, and also to acknowledge your significant contribution to the legal profession in this state and nationally. As we have just heard from my colleagues, you are renowned as an exemplary jurist. You are highly regarded across a broad range of disciplines, and you have contributed to the pursuit of the highest standards in the Australian judiciary during your service.
You have served as part-time Commissioner of the ALRC and Commissioner of the Equal Rights and Equal Opportunity Commission, as well as President of the Administrative Review Council. In 2020, you were appointed the Chair of the Australian Electoral Commission. Your distinguished career has been recognised with the awarding of the Member of the Order of Australia (AM), which honours your significant service to the law and to the judiciary. Today I would like to take the opportunity to acknowledge and thank you for your contribution, and thanking you for your support of the profession and, in particular, the solicitors here in Victoria.
As we have just heard, you began your professional journey as a solicitor in the Melbourne law firm of Henderson & Ball, where you did your articles and are fondly remembered today. Robert Ball recalls that you joined the firm in the late 1970s, when his father, Robert John Ball, was a partner. Your contemporaries remember you as very hard working and as a very conscientious person, with a happy disposition, and someone who was a delight to work with. Your special interest in Constitutional Law led you to being awarded the Sir Robert Menzies Memorial Scholarship, which in 1985 took you to Oxford University.
More recently, when serving as a member of the selection panel for the Menzies Law Scholarships, you were very clear on the benefits of such an opportunity. And you have heard it from the Attorney-General today, but for someone who has studied and is admitted in a foreign jurisdiction as well, it resonates strongly. And that is that you told potential law scholars that studying overseas opens people’s eyes to new propositions, new fields of knowledge and different perspectives. You have encouraged all Australian students to go out and meet the rest of the world as you did, and which you describe as an absolutely seminal experience in your life.
But even before you left to study overseas, you had already made a strong impression right here in Victoria. Terry Weerappah, former solicitor for the Commissioner for State Revenue, described your Honour as an outstanding contributor to the law. The quality of your research and advice was such that the government law office took every opportunity to brief you during your time at the bar, and it was always their preference to brief you on important tax cases in particular. Your outstanding research skills on constitutional issues were famous, and this became a defining feature of your legal career. Your reputation for plain speaking is also legendary. In a 2004 speech you gave honouring Justice Gaudron’s contributions to the High Court, you said:
Courts are responsible for delivering open justice, and that includes writing plain, readable and honest reasons for their decisions.
You point out that one of the tasks you’ve most enjoyed as a judge is to discern the assumptions being made on both sides of a case and to evaluate them while being critical and intellectually tough on yourself. You claim to have particularly enjoyed this process in intellectual property cases in the Federal Court, of which there were many. It took you into a large range of human endeavours, whether it be a mix of fashion, handbags, purses, spices or complicated machinery. Former Senior Executive Lawyer for the Australian Government Solicitor Ross McClure vividly remembers being called before you on a late cold Friday evening on a competition law matter being dealt with by the Australian Competition and Consumer Commission. Your Honour was then duty Judge of the Federal Court, and the ACCC wanted a witness called at midnight to obtain access to sensitive computer records. Apparently, the orders were swiftly granted, but staff from the Solicitor General’s office got stuck in the lift on their way out and feared that they might spend the weekend between floors of the Federal Court building. Thankfully, they were rescued and the work of the Court continued.
Your Honour, although you are retiring from this Court, no one really expects that you will retire entirely from professional life. Many hope that you will continue to write papers on ever-evolving constitutional issues to which you’ve dedicated so much of your working life. We thank your Honour for your wisdom and immense contributions in this area of law and warmly wish you and your family the very best for the future. May it please the Court.
MORTIMER CJ: Thank you, Mr Hibbins. Justice Kenny, I invite you to reply.
KENNY J: I too pay my respects to the elders past and present and the peoples of the Kulin nation, the traditional custodians of the land on which we have gathered today. Thank you, Chief Justice. Special thanks to the Attorney-General, who set aside the time to come today. I’m honoured and touched by his presence and kind words. Thank you, Mr Dunning, Ms Schoff and Mr Hibbins. Your kindness and forbearance are manifest in your kind words. It is also a pleasure to see Ms Orr and Ms Nance at the Bar table. Chief Justice, Attorney-General, your Honours, distinguished guests, friends, families, ladies and gentlemen, I’m honoured by your presence and thank you for coming today. Some of you are not to be seen nor are present in a corporeal sense; rather, you are here via the internet. Many of you are close to me, and I’m pleased that – I’m delighted that you are here. They include Alex Prieto and Daniel Nazer in the United States, Charles Berger in early morning Kununurra, Rory Cochrane, Ariela Gordon, Eliza Lockhart and Anna Saunders in the United Kingdom, as well as Anthony and Chris in Sydney and Canberra. We’re also joined by Professor Spencer Zifcak in Indonesia and my very first Associate, Marnie Wilson.
Some of you have travelled from other parts of Australia to be here today. I’m delighted to welcome to Melbourne Henry Burmester, Peter Mason, Arlette Regan, Subeta Vimalarajah, Madhav Fisher, and my cousin Catherine, and anyone who made the journey today. It is also very pleasing to have Tom Rogers, Commissioner of the Australian Electoral Commission, and Jeff Pope, the Deputy Commissioner, with us. The work of the Commission is critical for our democratic integrity, our constitutional government, and, therefore, the work of the Courts. This is my chance to thank you and others who have inspired and supported me these past few years.
In 1996/97, as you’ve heard, I was appointed Senior Counsel, because a first-time mother, and joined the Court of Appeal of the Supreme Court of Victoria. I note with particular pleasure the presence of the President of the Court of Appeal, Justice Karin Emerton, and Justices McLeish, Walker, Cavanagh, Quigley and Gray from that Court. It is also a special pleasure to see the Honourable Pamela Tate and the Honourable Kathryn McMillan in our midst, not to mention the former Governor, Alex Chernov, and his wife, Elizabeth. The events of 1997 were not unrelated. They turn on my family, which has been my cornerstone. I was fortunate in my parents and my parents-in-law. My late father was an academic. With friends all over the world, he invariably put the interests of others ahead of his own. Both my parents and my parents-in-law valued family, friendship, loyalty and integrity. My mother, who always gave a hand to anyone doing it tough, was born in Longreach, Queensland, over 94 years ago. She told me recently she didn’t see the rain until she was seven, and this may explain her stoicism today.
My husband, Ross, is at the centre of my life. He is my rock. Our partnership sustains me, and no one could have cared better for his family, including my parents, than he has done. I am immensely proud of my sons, Kam, Pat and Ant and daughter-in-law, Sophie. They are loyal, courageous, tenacious, resilient, and kind. And Oscar has, of course, completely won my heart. My family has enriched me and my judicial thinking. An only child can be a lonely child, and I have been very fortunate indeed to have Ross’s family as my family too. It is lovely to have Paul and Jeanette Jones here today, and the Woodruff, Andrews, Van Handel, Osbornes and Pitts. We have all shared some of our most important journeys here to this point.
I have been blessed with tremendous teachers as long as I can remember. In the mid-1970s a dashing Mark Weinberg, a vivacious Cheryl Saunders, and a natty Ian Hardingham taught me evidence, company law, and conflict of laws. But my interest in constitutional law was awakened on 11 November 1975, when the Whitlam Government came to an end and, in consequence, I lost my vacation job in the Commonwealth public service. When Gareth Evans lectured me in federal constitutional law the following year, I decided that studying law could be worthwhile. In truth, my academic friends are responsible for many of my best judicial moments. Memorably, Professor Zifcak led Alison King and me in teaching international human rights law to students in refugee camps in the Thai-Myanmar border. At about this time, too, the three of us and Helen Sykes were working together on the Future Justice Initiative. I have learned much from my engagement with the Asian Law Centre, first under the leadership of Professor Nicholson, and now Professor Sarah Biddulph. My regard for Professor Saunders took root in the law school and has grown ever since.
I have had the privilege of teaching with Professor Adrienne Stone and have loved every moment of it. Professor Croucher introduced me to her tantalising world of law reform. Professor Bryan Horrigan and I were graduate students at the same time, both supervised by the extraordinary Dr John Finnis, now Emeritus Professor. We would regularly discuss our progress or lack thereof over a meal together. Professor Rubenstein and I met in our children’s kindergarten room. She and Professor Hilary Charlesworth introduced me to public international law at the ANU.
My practical legal learning got underway, as you heard, at Henderson and Ball under the supervision of R.J. Ball whose son Robert is also here today. I enjoyed my time with the firm a great deal, but Dr Ruth Campbell encouraged me to apply for an associateship in the chambers of Sir Ninian Stephen. I loved this experience, and it confirmed my interest in public law and led me to the Victorian Bar, where I read with the late Peter Heerey and had the signal pleasure of being a member with him of this Court.
I enjoyed my work at the Victorian Bar probably because of my then secretary, Helen Farfalla. I regret I could never tempt her to this Court. I also enjoyed the Bar because of terrific solicitors with whom I worked, including Ross McClure and Terry Weerappah, both of whom are or sought to be here with their partners, Catriona and Helen. I have sometimes missed the Bar’s collegiality and the opportunity to learn from its leaders. It gives me particular joy to see here the former – to see her Alex Chernov and his wife, Elizabeth, and Graeme Uren and Jayne Gregory. As well, I learned from my experience at the Attorney-General’s Department, both in the Office of the Solicitor-General, and also under the careful and encouraging eye of Henry Burmester, later the Commonwealth’s Chief General Counsel.
I have been very fortunate to work with some of the very best Judges in Australia, commencing with the Court of Appeal, where I worked alongside very experienced, knowledgeable and highly regarded judges. Individually and collectively, they taught me a great deal. When I joined this Court, however, I was able to sit at first instance, as well as on appeal, and many of the cases I now recall with affection were, in fact, trials. This is perhaps because I’ve always liked to hear another’s narrative. To get to my Chambers, I used to pass by those of the then Justice Merkel, Finkelstein and Weinberg, as well as those of the late and much respected Justice Goldberg. It is our special pleasure to have The Honourable Mark Weinberg and The Honourable Ron Merkel here today. It is also a pleasure to have in Court The Honourable Shane Marshall, whose company I have always appreciated, and The Honourable Neil Young, who preceded me as Associate in Sir Ninian’s Chambers, and his wife, Inga, both of whom have been my friends for many years.
It is also a pleasure to have The Honourable Susan Crennan and Justice Michelle Gordon with us. I enjoyed the company of both of them on this Court before their appointments to the High Court. It is a delight to have The Honourable Michael Black in our midst. He introduced me to the work of this Court, imbuing it with grace and courtesy, collegiality and an international outlook. I will always be grateful for the scholarship and kindness of my judicial colleagues wherever and whenever this Court has been carrying out its work. My warmest thanks to all my fellow Judges, and to all four of my Chief Justices. I regret I shan’t serve under Chief Justice Mortimer a little longer, but I retire in the confidence that the Court is in the best of hands.
I have been very lucky too to benefit from many excellent Counsel, although sometimes, the better you were, the worse it was for me. The late Brian Shaw was so cogent and clear that I found it very difficult to work out where he might possibly be wrong. Nevertheless, I do thank all of you who sought to steer me in the right direction. Good Court work is the product of teamwork. I have always been very grateful to the Court Officers, such as Diane Hill and Carol Locket, whose courteous attention made the Courtroom experience so much less stressful for everyone.
The Court has also had many able Registrars. From the beginning, I had the singular good fortune to work alongside Registrar John Efthim, then a Registrar of this Court, and later The Honourable Associate Justice Efthim of the Supreme Court of Victoria. My cases always went much better, for all involved, after we discussed their management together. I learned a great deal from him, and I’m honoured by his presence and that of Jacinta Efthim today. I thank all the Registrars for whom I’ve worked, especially Registrar Tim Luxton. Registrar Luxton has been invariably generous with his advice and support, including in the matter of calculating the maths of damages.
Special thanks are also due from me to Migration Registrar Simon Haag and Lauren McCormick. I’m very grateful to Sia Lagos for her steady support over so many years and to her team. I thank the Registry staff for their courtesy and skill in navigating the treacherous waters that lie between their engagement with the public and Judges’ Chambers. I also thank Serge Terceiro and his team. They navigate the terrain between the public and private realms of this building, discharging their duties with care, courtesy and kindness.
I thank all the Librarians of the Court, including Georgia – I’m going to mispronounce it – too many Vs and Ss – Georgia Livissianos, with whom I have worked on the Library Committee for many years. I thank, especially, Michael Coats and Carol Bradford. They have always met my requests for literature, however arcane. How they did this, I really don’t know, and I shall miss them enormously. I feel the same way about the IT services, and Ash Plummer, Marc Stephens and their team. I would not have made it today but for them. They know things I can barely comprehend and have made it possible for me to navigate my judicial world safely. I’m grateful to them, and especially these last few weeks to Daryanne Lumbo.
I’ve not yet spoken of that most special place, my Chambers. Chambers staff are amongst the most important people in a Judge’s world, second to family. I’ve already mentioned Marnie Wilson, my very first Associate. I’m also delighted to say that my very first Executive Assistant, Amanda Watson, is here today. So too is Steven Tudor, who was my very first Associate in this Court. They stood by me as I learned the job of being a Judge. Thank you, Marnie, Amanda and Steven. Also, my particular thanks to Jillian Baskharon for her loyal executive support over many years.
As I have had so many Associates, I shall resist the temptation to name them all. Most are here today in one way or another, and this makes me truly very happy. They have ensured that I remained on course in discharging the responsibilities of office, kept me up to date, and saw my writing was relatively comprehensible, and if there was an error, I had been warned. I’m very proud of them. Some of them have been drawn into academia. A number were drawn to the Bar, mostly the Victorian Bar, including her Honour Judge Burchell, who is also here today. I’m also proud to say another of mine, Hollie Kerwin, has recently been appointed to the Administrative Appeals Tribunal. Incidentally, I note with pleasure the presence of Deputy President Frank O’Loughlin and other members of the AAT.
Many of my Associates have worked or are working for not-for-profits in Australia and elsewhere. A substantial group have chosen to work for Government or Government enterprises, again mostly, but not entirely, in Australia. A relatively small, but no less delightful and insightful, group have chosen to work for private firms and corporations. By way of my final chapter, my deepest thanks to my last remarkable Associate, Julian Martin, and my most excellent Chambers Administrator, Scott McCagh. I would not have reached this day as well without them.
Australian Judges are a more diverse group than in 1997. Sooner rather than later, I trust the diversity of Australia’s people will be mirrored in the diversity of her Judicial Officers. It has been a privilege to be one of them. Thank you.
MORTIMER CJ: Thank you, Justice Kenny. The Court will now adjourn.
