to farewell the Honourable Justice Tracey

 17 August 2018

PRESIDING JUDGES:

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE TRACEY AM RFD
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE DAVIES
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE WHITE
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE STEWARD
THE HONOURABLE JUSTICE COLVIN

GUEST OF THE BENCH

THE HONOURABLE MICHAEL BLACK AC QC

MELBOURNE

9.32 AM, FRIDAY, 17 AUGUST 2018

ALLSOP CJ: Welcome to this ceremonial sitting of the Court in honour of our colleague, Justice Tracey. The Judges of the Victorian Registry and myself are joined on the bench today by a number of Judges from other Registries of the Court who are in Melbourne, Justices Greenwood, Rares, Besanko, Logan, McKerracher, Yates, White, Wigney and Colvin. I'm also particularly delighted to welcome as a guest of the bench and in Court the former Chief Justice of this Court, the Honourable Michael Black AC QC.

I acknowledge the traditional custodian's land on which we meet, the Wurundjeri People of the Kulin Nation and pay my respects to the Elders past and present.

I also acknowledge the presence of a number of our current and former Federal and State judicial colleagues: the Honourable Susan Crennan AC QC and Dr Michael Crennan; the Deputy Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court, Justice Alstergren; the President of the Victorian Court of Appeal, Justice Maxwell; Judges and Associate Judges of the Supreme Court of Victoria and the Court of Appeal; Justice Brereton of the Supreme Court of New South Wales; Judges of the Federal Circuit Court and County Court; Chief Magistrate of Victoria Judge Lauritsen and Magistrate Ginnane; and former Judges of this Court, the Honourable Peter Heerey AM QC, the Honourable Christopher Jessup QC, the Honourable Shane Marshall, the Honourable Donald Ryan QC; and former Judges of the Supreme and Family Court respectively, the Honourable Bernard Bongiorno AO QC and the Honourable Sally Brown AM.

I also note the apologies received from a large number of people who wished to be present here today but who are unable to be, by reason of their duties otherwise; the Honourable Christian Porter MP, the Attorney-General; Chief Justice Kiefel and Justices Keane, Nettle, Gordon and Edelman of the High Court; Chief Justice Ferguson; former Justice of the High Court the Honourable Ken Hayne AC QC, the Chief Justice of the Family Court; the Honourable John Pascoe AC CVO; Justices Garde and Wood of the Supreme Court; Justice Ross AO, President of the Fair Work Commission and Justice Thomas, President of the Administrative Appeals Tribunal; the Chief Judge of the County Court of Victoria, Judge Kidd; and Judge Kelly of the Federal Circuit Court. Also your colleagues Justices Bromberg and O'Callaghan, who are sitting interstate, send their apologies.

Your former colleagues, the Honourable Ray Finkelstein AO QC, the Honourable Geoff Giudice AO, the Honourable Peter Gray AM, the Honourable Tony Pagone QC, the Honourable Ross Sundberg AM QC and the Honourable Dennis Cowdroy OAM QC and the Honourable Neil Young QC also asked that I convey their particular apologies. Justice Giudice speaks of knowing of your Honour since you were both at Newnham College together in 1966. I would also particularly mention the apologies received from a number of those who have had a connection with you in your military service; Justice Hiley of the Northern Territory Supreme Court, Justice Slattery of the Supreme Court of New South Wales, the Honourable Margaret White AO and Dr Michael White QC.

I particularly welcome members of your family, your wife Hilary, your daughters Fiona and Rose, your sons Jack and Phillip and their partners, your grandchildren and other members of your large extended family and group of friends.

I also acknowledge at the Bar table Solicitors-General of the Commonwealth and the State of Victoria.

As I have said on previous occasions, ceremonial sittings such as this are important events in the life of the Court that allow us to reflect upon the contributions made by Judges of the Court to the Court, to the law and to Australia.

Justice Tracey, you joined the Court on 24 July 2006 and you have served with great distinction through that period of 12 years.

You came to this Court following a distinguished career at the Bar and in the Academy. Indeed, the early years of your career were marked by significant service to the academic branch of the profession. After graduating from the University of Melbourne in 1969 and serving as an Associate in the Commonwealth Industrial Court, you became a member of the Faculty at the University of Melbourne Law School working in a variety of academic posts there until 1987.

During this time you developed your expertise in administrative and industrial Law, for which you are now renowned. You tutored in administrative law, wrote the first edition of your text, General Principles of Administrative Law and published numerous articles. And in 1982, while still an academic, you signed the Roll in Victoria and quickly developed a practice in constitutional, administrative and industrial law, taking silk in 1991. The cases you were involved in under the bar are a roll call of notable public law cases of the period: Workchoices Case [2006] HCA 52; 229 CLR 1, Amcor v CFMEU [2005] HCA 10; 222 CLR 241, Yusuf [2001] HCA 30; 206 CLR 323; Jia [2001] HCA 17; 205 CLR 507 and Teoh [1995] HCA 20; 183 CLR 273 and the list goes on. In this Court they included Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491; Bennett v Chief Executive Officer Australian Customs Service [2004] FCAFC 237; 140 FCR 101; Applicant C [2001] FCA 1332; 116 FCR 154 and Singh [2000] FCA 485; 98 FCR 469.

Given your areas of particular expertise, your appointment to the Victorian Registry of this Court was not only welcomed but expected. In administrative law and migration and industrial law you have contributed mightily. These are critical areas of the Court's jurisdiction. They are essential to the economic and social fabric of this country, in particular a multi-cultural country. The cases in these areas illustrate the particular capacity of those who hold power to affect individuals through the exercise of that power. Is that you have always understood.

In the field of industrial law your contribution has been mighty. It has been broad, ranging across the whole scope of the area. I cannot refer to all these cases, and I must leave something for other speakers.

But in the context of you as a single judge, there are important decisions that should be mentioned such as Stuart-Mahoney v CFMEU in 2008 and Kelly v Fitzpatrick in 2007 in relation to underpayment of wages. Your judgment in Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 dealt with the important question of costs in an industrial matter, and recently in Ambulance Victoria v United Voice [2014] FCA 1119 you considered the meaning of "industrial action". In the Full Court your contributions to this area of the law have been equally mighty and important. There are too many cases to be exhaustive. In recent times the ABCC v CFMEU (The Laverton North and Cheltenham Premises case) [2018] FCAFC 88, the ABCC v CFMEU (The Castlemaine Police Station case and Case) [2018] FCAFC 15 and your work with Justice Buchanan in particular in the Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102 in relation to conduct on the picket line.

In relation to administrative law and migration law, your contributions to the work of the Court have been deep. Your judgment in Lawyers for Forests v Minister for Environment, Heritage and Arts [2009] FCA 300, which dealt with the proposed Gunns Pulp Mill in Tasmania, is a leading case in the role of the precautionary principle in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Your judgment in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 was one of the first to consider the operation of sections 501(3A) and 501CA of the Migration Act, the provisions which are the concern in particular of the Judges of this Court.

Over the course of your career you have had a unique and sustained influence on military law and military justice in this country. From 1975 until your retirement in 2014 you served as a member of the Australian Defence Force. You were commissioned into the Australian Army Legal Corp and ultimately obtained the rank of major-general in the Army Reserve. You have served as a defence force magistrate and from 2007 until 2014 held the office of the Judge Advocate of the Australian Defence Force, appointed pursuant to the Defence Force Discipline Act 1982 (Cth). That position entails a statutory supervisory role over discipline proceedings conducted within the Australian Defence Force and requires the appointee to be a judge of the Federal Court or a State Supreme Court.

The Act operates alongside the Defence Force Discipline Appeals Act 1955 (Cth) which establishes the Defence Force Discipline Appeal Tribunal, where appeals from persons convicted of service offences are heard. There is a tradition of judges on this Court serving and since 2009 you have been the president of the Tribunal serving alongside our colleague Justice Logan and also alongside Justice Brereton who, as I noted earlier, is here today. These are important roles within our military justice system and, indeed, our military as a whole, and in your execution of these roles the Defence Force benefited greatly from your rigorous knowledge of both public law and the military itself.

There are important decisions as President of that Tribunal which should be mentioned: King v Chief of Army[2012] ADFDAT 4, Bateson v Chief of Army [2012] ADFDAT 3, Jordan v Chief of Airforce [2015] ADFDAT 2 and Leith v Chief of Army [2013] ADFDAT 4.

In addition, you have assisted in the administration of this Court in a number of roles out of sight, as it were, of the public. Your service on important committees in the Court, the Security Committee, Judicial Education and Remuneration Committees, have been vital to the working of the Court. May I add, however, your recent service in the last four years as one of the Migration Liaison Judges. It's very easy to gloss over the importance of these kinds of contributions to the Court. They don't result in judgments but they take enormous amounts of time.

As a Migration Liaison Judge you, along with a small number of your colleagues, triage by reading and analysing every single migration appeal that comes into this Court. Sharing those some 1200 per year, you help me decide whether there should be one judge or three, legal assistance or pro bono, and any particular difficulty with the case. It's an enormous burden that you undertook with those small number of colleagues and I would not want an occasion such as this to pass without my particular thanks for that assistance. You have undertaken that work emblematically, if I may say, with the uncomplaining and indefatigable energy and thoroughness of a fine judge, with a soldier's mien. As in everything you have done in this Court, you did this work with strength, patience, good humour, and dutiful courage that mark you as a person.

Justice Tracey, on behalf of the judges of this Court and on my own behalf personally, I thank you for your service to this Court and to the people of Australia. We will miss you very much.

Mr Rawson, representing the Attorney-General.

MR RAWSON: May it please the court. First of all, I acknowledge that we are meeting on traditional country of the Wurundjeri people of the Kulin Nation and pay respects to elders past and present. I recognise and respect their cultural heritage, beliefs and relationships with the land, which continue to be important to the Wurundjeri people living here today and to other traditional custodians of the Melbourne area.

It is an honour and a privilege to be here today to celebrate your Honour's time as a judge on this bench. Your Honour retires today after more than a decade of dedicated service to the Federal Court of Australia, the culmination of a long and distinguished career in the law. The Attorney-General, The Honourable Christian Porter MP, regrets that his ministerial commitments prevent him from attending this ceremony today. He has asked that I convey the government's sincere appreciation for your Honour's contribution to the work of the Federal Court and pass on his best wishes for your retirement.

The high regard in which your Honour is held is demonstrated by the number of esteemed guests that are present here today, including Dr Stephen Donaghue QC, Solicitor-General for the Commonwealth, The Honourable Susan Crennan AC QC, former justice of the High Court of Australia, The Honourable Michael Black AC QC, former Chief Justice of the Federal Court of Australia, The Honourable Justice William Alstergren, Chief Judge of the Federal Circuit Court of Australia, The Honourable Justice Chris Maxwell AC, President of the Victorian Court of Appeal, Kristen Walker QC, Solicitor-General for Victoria, other current and former members of the judiciary, and members of the legal profession. May I also acknowledge the presence of your Honour's family, including your wife Hillary, and your four children, Jack, Philip, Fiona and Rosemary, who proudly share this occasion with you.

As we celebrate your Honour's achievements today it is fitting that we reflect on your path over you entire career, noting a full exposition of your Honour's contribution to the law and the community would occupy more than my allotted time permits. Your Honour was educated at Melbourne High School before your admission to the University of Melbourne where you obtained a Bachelor of Laws degree with honours in 1969. After completing the bachelor degree your Honour later went on to complete a Master's Degree in Law from Melbourne University in 1974 and the University of Illinois in 1979. Your Honour was admitted to practice in the Supreme Court of Victoria in 1975.

Your Honour commenced your legal career as an Associate to The Honourable Sir Richard Eggleston, then a Judge of the Commonwealth Industrial Court and President of the Trade Practices Tribunal, following by a career of almost 20 years with the Law School at the University of Melbourne, punctuated by a year's postgraduate work in the United States. Your Honour has inspired generations of young lawyers as a university lecturer and teacher and as a mentor to young members of the profession, with your Honour admitted as a member of the New South Wales Bar from 1975 and a member of the Victorian Bar from 1982. As a member of both bars, I'm told you were undisputed leader in a number of areas of practice and, in particular, in the areas of administrative and military law.

In 1985, your Honour was appointed as a judge advocate and defence force magistrate. Your Honour's appointment as a Queen's Counsel in 1991 came as no surprise. Your Honour had a flourishing civil and military practice and made a significant contribution to the body of jurisprudence in Australia. You were published widely and edited the Australian Journal of Administrative Law from 1993 and the Victorian Reports from 2003. A celebrated academic, barrister and Queen's Counsel, with long and distinguished service as a military lawyer and judge, your Honour's appointment to the bench of this court in 2006 was warmly welcomed. I'm told by one former colleague of yours that the Federal Court never got so lucky as when your Honour was appointed to the court.

It was not long after your appointment that your Honour began to hand down judgments of significance, such as in the matter of AB v The Minister for Immigration and Citizenship. In this matter, your Honour dealt with the important question of the extent to which an omission to have regard to Australia's unenacted treaty obligations or other so-called forms of soft law may involve jurisdictional error on behalf of ministers or other administrators. Your Honour's decision in this case is cited in the current edition of a leading Australian textbook on administrative law. Further, your Honour's decisions in Saga v O'Sullivan and Shock, Distributive and Allied Employees Association v National Retail Association Number 2, remain the leading cases on the issues raised with the latter also the principal subject of an article in a learned law journal.

There are many more examples across a number of areas of law that highlight your Honour's significant contributions to the Federal Court. Since your appointment to the bench of this court your Honour has also been appointed Deputy Judge Advocate, Judge Advocate General and President of the Defence Force Discipline Appeals Tribunal, with that appointment carrying through to your retirement today. These appointments were a further testament to your Honour's dedicated service and significant military career. Indeed, your contribution to the Australian Defence Force, in a number of senior military justice positions, was cited in your Honour's award of Member in the Military Division of the Order of Australia in 2014, and is reflected in your Honour's military decorations.

I'm informed that your Honour's qualities of high intellect, ferocious work ethic, decency and compassion, not only apply in your professional capacity as a barrister and a judge, but also to you personally. Such is your reputation for integrity that I'm told there is no better test for a young lawyer faced with a difficult ethical question, than to ask, "What would Richard Tracey do?" Your Honour is valued by your fellow judges and the legal profession for your commitment to serving the community, and for inspiring and mentoring young members of the profession. I'm told that no door was ever more open to anyone who needed assistance than your Honour's. When asked for help you would happily put aside whatever you were doing and offer what assistance you could, no matter the time that might be involved.

It is not only in your legal profession that your Honour has shone. I understand that your Honour, a natural born adjudicator, was a gifted amateur football umpire. Perhaps almost uniquely I'm told you dispensed true umpiring justice with players afforded the time to question your decisions. However, in spite of all your esteemed qualities there is one imperfection, and that is your Honour's unwavering commitment to the Collingwood Football Club. Having reflected on your Honour's achievements to date it is perhaps logical to turn our minds to what your Honour's future may hold. Retirement, of course, marks a new and exciting chapter of life, wherein one has the opportunity to pursue passions for which one previously had insufficient time.

I was unsurprised to learn that your service to the community will continue as you take on academic roles in 2019, as judge in residence with the University of Melbourne Law School and adjunct professor in military law with the Australian National University Law School. I'm also told that you have been appointed Colonel Commandant of the Australian Army Legal Corp, a role which will provide mentoring and support to the young members of the legal corp who will no doubt gain great benefit from your expertise. Aside from your commitment to the community and the legal profession, your Honour is a renowned family man, with retirement potentially offering an opportunity to travel with your wife, Hillary. In concluding, your Honour is respected, not only for your contribution to this bench, but for your commitment to serving the community more broadly.

As your time as a judge of the Federal Court draws to a close you leave with the deep respect and gratitude of your colleagues, the legal profession and the people you have served. Your Honour, on behalf of the Government and the people of Australia, I thank you for the extraordinary contribution you have made to the administration of justice in Australia, on this bench, and wish you all the very best as you commence a new chapter in your life in retirement. May it please the court.

ALLSOP CJ: Thank you, Mr Rawson. Dr Collins, President of the Victorian Bar.

DR M. COLLINS QC: May it please the court. And I too acknowledge the traditional owners of the land on which we meet – the Wurundjeri People of the Kulin Nation, and pay my respects to their elders, past and present. I have the rare privilege this morning of appearing, in effect, on behalf of the entire Australian legal profession. Today I represent the Victorian Bar. I might add, supported in court today by at least nine former Chairmen and President, the Law Institute of Victoria and the solicitors of this state. I acknowledge the presence at the bar table of Belinda Wilson, the President of the Law Institute, the Australian Bar Association, the peak national body representing the Independent Bars of the States and Territories of Australia, and the Law Council of Australia, representing all of the Independent Bars and law societies in the country, as well as the Large Law Firms Group.

I cannot recollect any occasion on which there has been such unanimity in the two branches and the representative bodies of our profession. And all have come together today to join in paying tribute to your Honour's service to date to the law in Australia as a judge of this court for more than 12 years, as a barrister for more than 24 years, of those 14 and a half as Silk, as a solicitor, including as a law firm partner for more than seven years, an associate to the Honourable Sir Richard Eggleston for two years, as a legal academic for some 15 years, and in military law for more than 40 years, and still counting. I say service to date because, as Mr Rawson has said, your Honour clearly has no plans to stop anytime soon. We've heard in your "retirement" you will continue as judge in residence at the Melbourne Law School in 2019, ongoing adjunct professor of military law at the ANU Law School, and Colonel Commandant of the Australian Army Legal Corp.

Your Honour, it is a great personal pleasure to speak at your farewell. I have had the benefit of your support from the first day of my reading at the bar. I read with David Beach, now a judge of the Court of Appeal, here today. Your Honour's room was adjacent to his. I had the benefit of your mentorship from that day onwards, and the privilege of appearing and working with your Honour as your junior. We appeared together in a number of significant cases, including in this court. But the matter that stands out for me is our engagement with others over a period of almost two years as counsel assisting the Honourable Terence Cole QC in the Royal Commission into the building and construction industry, which ran from 2000 until 2002. At the time I think the largest Royal Commission in Australian history.

Many of the former counsel assisting in that Royal Commission are in court today. At the bar table we're joined by Dr Donoghue and Dr Renwick. As Dr Donoghue quipped to me, "We're getting the band back together." In the court are other former counsel assisting from that time, of Justice Tim Ginnane, now of the Supreme Court, and Nicholas Green QC – I hope I've not omitted anyone – and Mr Rawson, of course, was one of the solicitors assisting in that Royal Commission as well. Among my abiding recollections of that period are your Honour's unerring integrity, wisdom and professionalism in the context of a highly politicised, scrutinised, and controversial inquiry. It was an example I, and I know the other counsel assisting here today, have never forgotten. There is a remarkable breadth and depth to your Honour's professional service in and to the law.

Your industry, highly disciplined organisational skills and high achievement in everything you do, would be summed up in modern parliaments as multi-tasking. From graduation with an Honours Law Degree from Melbourne, you went directly to serve as associate to Sir Richard Eggleston for two years, then straight into teaching at the Melbourne Law School. You achieved what was then the career grade in the academy, that of senior lecturer, and you served as sub-dean. While a full-time teacher, scholar and academic administrator, you were also a law firm partner, practising as a solicitor and as a solicitor advocate at a high level, including both trial and appellant appearances in this court. At the same time you were also a part-time presiding member of the Social Security Appeals Tribunal, where you heard over a thousand appeals.

You came to the Victorian Bar in 1982, and began practice at the Independent Bar whilst still a full-time academic, achieving increasingly high levels of responsibility. That remarkable situation persisted for more than four and a half years, until you finally left the faculty for full-time practice at the bar. I almost forgot one thing. From shortly after admission to practice you began your legal work with the army in 1976. You have made a very substantial commitment and contribution to the army from then to the present day, something that will continue in your retirement from this court. You were, as a Captain, both the youngest and most junior ranked judge advocate. You attained the rank of Major General.

Your citation for the 2014 Australia Day honour of membership in the Military Division of the Order of Australia, records service in "the most senior and demanding roles in the military justice system." An inspiration to all military lawyers. In your time at the bar your instructing solicitors marvelled at your ability to draft even the most critical documents, statements of claim and other pleadings, in the most complex cases, just once. Never needing to be worked and reworked and reworked again.

Your appointment to this court in 2006 meant that you had a relatively short term as editor of the Victorian Reports. You had served as a reporter since 1982, continuing after you took silk, and as an assistant editor in 2002. You also served as a reporter with the Federal Reports from about 1988 to 2002 as a junior and a silk. This represents a noteworthy dedication and commitment to the craft of law reporting, yet another fact of the breadth and depth of your Honour's contributions.

Your Honour and Tony Cavanough QC, now Justice Cavanagh and in court today, served together as human rights and equal opportunity commissioners from 1997 to 2000, another significant contribution over and above practice as silks. Your Honour's contribution as a judge of this court has been very substantial. It is remarkable how frequently your judgments are cited and have influenced the explication and development of the law. As well as a judge in the trial division, your Honour has regularly sat on the Full Court, a substantial commitment often requiring interstate sittings, one your Honour has taken on cheerfully as in the recent five-member panel in the penalty rates case, a measure of your devotion and duty to the law.

Perhaps the most notorious case that your Honour tried, at least in the media, was that of Health Services Limited v Katherine Jackson. Kathy Jackson was an official of the Health Services Union's Number 3 Branch, then National Secretary of the Health Services Union of Australia. She sought to portray herself as the well-meaning whistle blower against the corruption of Michael Williamson, the General Secretary of the Health Services and Research Employees' Association and the Health Services Union New South Wales and East Branches. She spoke of exposing union officials living on an obscene millionaire's lifestyle off the backs of their members. Michael Williamson went to jail for his corruption.

Eventually, the Health Services Union brought proceedings against Kathy Jackson. After a tortuous couple of years your Honour gave judgment against Ms Jackson for contraventions of the Fair Work Registered Organisations Act of the improper use of one's position to gain an advantage and for overpaid salary, ordering her to compensate the union in the amount of about $1.4 million. At one point, Ms Jackson's live-in partner, Michael Lawler, the Vice President of Fair Work Australia, sought to assist her in defending the proceedings, in one hearing by phone from a house in Wombarra in New South Wales. A journalist in court described the cause indistinct, quote, "From the comfort of his Wombarra balcony with forest and ocean views, hard to hear over the sound of birdsong". Your Honour throughout has been described as staggeringly patient, wholly imperturbable and calm.

In another case, Marchesi v Apostolou, the fiery and volatile husband of a self-represented party who had effectively ran all of her cases leapt up at your Honour on the bench. Your Honour was at the time in the course of delivering judgment extempore. Paragraph 7 of the revised judgment records:

At this point, I was interrupted when Mr Visiliou left the bar table and approached the bench.

The judgment goes on:

He came on to the bench and confronted me, then he was removed from the court. I asked that he be advised that he could return provided he undertook to be of good behaviour. He declined that offer and so the matter proceeded in his absence.

7 September 2012 was a red-letter day for your Honour. Judgments of yours were upheld on appeal by 10 judges on that day, 10 nil. In Bendigo TAFE v Barclay five judges of the High Court reversed the decision by majority of a Full Court of this court that it overturned your Honour's first instance judgment. In the High Court, Justice Haydon wrote:

The trial judge possesses great learning in the present field. He has considerable experience of oral hearings. Had the respondents seriously attempted to demonstrate any error vitiating the trial judge's fact-finding process they would inevitably have failed.

In the subsequent judgment unanimously awarding costs against the respondents, Justice Haydon added:

The respondent's position is typical of the mindless and rancorous technicality which characterises litigation about industrial law. It is entirely without merit.

He said:

It was the respondents who took the forensic initiative by seeking to overturn an impeccable judgment of the trial judge which it took in appeal to this court to restore.

The same day a five judge panel of the Full Court of this court in Jones v Chief of Navy unanimously dismissed an appeal from the Defence Force Discipline Appeal Tribunal over which your Honour had as president presided. Not even the briefest account of your Honour's professional contributions would be complete without mention of Newman College at the University of Melbourne and what was its sister college, now co-residential, St Mary's. Your Honour was a resident student and President of the Newman College Students Club. You were a tutor at Newman, as well as at the Law School.

At your welcome it was noted that you had for more than 40 years organised annual dinners of the general committee members and for some 20 years, the last eight as president, served on the committee of the Newman Old Collegians Association. You remain president and in this Newman College centenary year proposed the toast to the college at the association's dinner in May. You have also served on the St Mary's College Council since 1984 and are regarded as the de facto vice chairman, the archbishop being the ex-officio chairman. Your Honour chaired the selection committee for the present principal and you have been a respected and valued advisor to successive principals, always making yourself generously available.

Your Honour has been an outstanding judge of this court for more than 12 years, service cut short only by the Constitution. On behalf of the Victorian Bar, the Law Institute of Victoria, the Australian Bar Association and the Law Council of Australia, could I wish your Honour and your wife Hilary and your family joy in your retirement from this court. May it please the court.

ALLSOP CJ: Thank you, Dr Collins. Justice Tracey.

TRACEY J: Chief Justice, Mr Rawson and Dr Collins, I thank you most sincerely for your submissions. Given the imminent onset of constitutional senility I do not have the luxury of reserving my response. It would also undo the good work of recent weeks in which I have been able to clear all my reserved judgments. An extempore response is therefore called for. I should say at the outset that I harbour some reservations about the evidence on which the submissions were based but I accept that your interlocutors were attempting to give accurate, albeit embellished, accounts of events, some of which occurred a long time ago. Certain omissions from some of the stories confirm my impression that your informants have been well meaning.

Not all those who have appeared at the bar table in this courtroom have said such kind things about my judicial demeanour. As has been mentioned, I was delivering an ex tempore judgment in this very Court one morning when the disgruntled self-represented litigant realised that the judgment I was handing down was not going to meet his expectations. He left the bar table and came up here onto the bench and was muttering loudly and advanced within a few feet of me before being restrained by Sheriff Officers. The rest has been recorded in the judgment which Dr Collins has quoted a few minutes ago.

On another occasion – the only time I did it – I had to use a gavel which had been given to me at the time of my appointment to interrupt a regular litigant after all other attempts to interrupt her flow had been fruitless. I feared that the Court Reporter sitting below the bench was more startled than the litigant. The litigant, however, did manage to draw breath. These events were, I'm pleased to say, exceptions to the normal calmness which prevailed during most hearings. Friday 7 September 2012 was indeed a memorable today. The two unanimous appellate decisions were very welcome. They provided an antidote for a number of bumps along the appellate road to which those at the bar table have kindly not adverted.

It has been my privilege over the past nine years to serve as President of the Defence Force Discipline Appeal Tribunal. I'm very pleased that two other members of the Tribunal are present this morning, Justices John Logan and Paul Brereton. The other two members are presently overseas. The work of the Tribunal is not generally known. It effectively serves as a Military Court of Criminal Appeal from convictions recorded by courts martial and Defence Force Magistrates. Its members are drawn from this Court and State and Territory Supreme Courts. Over the last nine years the Tribunal has dealt with 32 appeals, sitting throughout the country. I thank my fellow members, past and present, who have committed themselves to this important and demanding work, and who have rendered distinguished service in the military justice system.

Mentions have been made of my military service. For most of my time on the Court I held the statutory appointment of Judge Advocate-General of the Australian Defence Force. It followed some 30 years of service in the Army Reserve. During that period, I have come to appreciate the dedication and professionalism of the service men and women on whom we depend for our nation's security. I am grateful for the presence this morning of Commodore Jack Rush, the Deputy Advocate-General Navy who is representing the Judge Advocate-General Rear Admiral Michael Slattery who is overseas, Major-General Ian Westwood, who has recently retired as Chief Judge Advocate, the Director of Military Prosecutions, Brigadier Jennifer Woodward and the Director of Army Legal Services, Colonel Jim Waddell. I look forward to continuing my service as Colonel-Commandant of the Army Legal Corps.

I made my first appearance in this Court on 10 June 1979. It has been an integral part of my professional life for the past 40 years. In those early years we moved between courtrooms in the old High Court building and across the road at 451 Little Bourke Street. The move to this building, with its state of the art facilities, was a landmark in the life of the Court. How Chief Justice Black was able to persuade the Department of Finance to pay for windows embossed with the words of the Constitution and for the crafting of a 4000 year old block of wood to form a lectern from which Mr Rawson and Dr Collins spoke, must remain a closely guarded secret of the Court. What can be said is that it has not been repeated.

During that time, the Court Officers Registry staff and Security staff of the Court have been unfailingly courteous and helpful. I thank them all. In recent years, in particular, I've had reason to be extremely grateful to Sia Lagos and her team at the National Operations Registry for the assistance they have provided me in managing my docket. The arrangements made for this morning's sitting provide a perfect example of the attention to detail and efficiency of the Court staff, in this case, under the guidance of Stephen Williams. I've been most fortunate to have served under three outstanding Chief Justices. Two of the three are present on the bench this morning. Each was an intellectual leader of the Court. Each had the skills necessary to deal with the major administrative and structural issues which arose during their time at the helm. Each has been closely attentive to the welfare of the Judges and the Court staff. I thank them all.

Of the 40 or so Judges of the Court when I joined it only seven remain. Some have moved to other judicial appointments, but most have retired in accordance with constitutional requirements. Successive Attorneys-General have ensured that the Court has been refreshed by the appointment of many outstanding jurists. This has become all the more important as the range of the work of the Court has expanded into areas such as Defamation Law and Corporate Crime and the burden of Class Actions and Immigration work has increased. The quality of their work has been widely recognised, and has enhanced the standing of the Court, both nationally and internationally. It has been a pleasure and a privilege to serve with my present and former colleagues in what has been a happy, mutually supportive and collegiate environment.

Throughout my time on the Court my Executive Assistant has been Mrs Wendy Dark. She has liaised with the litigants, the profession, the Registry and other chambers and efficiently undertaken the thousand and one other tasks that were necessary for the smooth running of my docket. Her friendly demeanour has endeared her to all but a few difficult litigants in person. She selflessly anticipated my needs and those of others. She has been the best EA any Judge could wish for. I've had the considerable assistance of eight fine Associates, all but one of whom is here this morning. Each has brought different skills and personalities to my chambers. Each has worked assiduously to ensure that the drafts of my reasons have emerged in a respectable form, despite the infelicities which often required correction. I'm pleased to be able to call them all friends and look forward to following their developing professional careers.

As is often the case with professional careers, the demands one meets intrudes sometimes significantly on one's family life. I'm deeply grateful for the love, support and understanding of my wife, Hilary, and children, Jack, Philip, Fiona and Rosemary and their respective spouses and partners, all of whom are here this morning together with my granddaughter, Camilla, who waved goodbye about 10 minutes ago. They have been my rock throughout my professional life. Many of you have travelled long distances, some from interstate and overseas to be here this morning. Others of you have set aside time in busy professional schedules to come. I am honoured by your presence and deeply grateful to you for coming.

ALLSOP CJ: The Court will now adjourn.