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Federal Judicial Scholarship |
One of the most significant changes, I think, since the establishment of this Court has been the change in relationship of the Courts. When this Court was established, relations with the State Courts in a number of States was, to put it mildly, less than warmly congenial. That, perhaps, was understandable in human terms, but if one appreciates the importance of chapter 3 of the constitution, section 77 in particular, one realises the importance, indeed, constitutional importance of good cooperative and collegiate arrangements and relationships between the Courts of the different polities in the one nation. We are all a part of one integrated federated legal system.
There is no question that your Honour has worked tirelessly to grow a cooperative and collegiate approach. Your Honour's judgments remain a great source of learning and guidance to current and future generations. They display deep and patient legal scholarship, considerable industry and the principal manner in which you set out about resolving disputes. Over the years, your Honour has been a great friend to our bar. We have spoken about the Victorian bar taking a higher profile in mentoring and also in equity. We have listened, we are taking action, and we will continue to do so. As retirement beckons and you leave behind the challenges of the bench, we all look forward to continuing our association with you. On behalf of the bar, I wish your Honour a long and happy retirement. May it please the Court.
ALLSOP CJ: Thank you, Mr Hay. Ms Wolff, just before I call on you, once again, I have done it. I was rude enough to overlook the former Governor one day, and today, I have overlooked the Solicitor-General and my dear colleague, Peter Gray. I do apologise. Ms Wolff.
MS T. WOLFF: May it please the Court. I appear on behalf of the Law Institute of Victoria and the solicitors of this State, to farewell your Honour as Chief Justice of this Court. A further respectful acknowledgement of the traditional owners of the lands on which we gather, the Wurundjeri people of the Kulin nation, and also pay my deep respects to Elders past, present and emerging, and extend that to any Aboriginal or Torres Strait Islander person here today. Your Honour, it is a privilege and a great pleasure to speak today on your retirement from the Federal Court after 10 years of serving as its Chief Justice. You are renowned as an exemplary jurist, highly regarded across many fields of law, and your tenure as Chief Justice has been credited with transforming the Federal Court into a truly national Court.
Many have lauded your achievements which have been formally recognised, as we have just heard, when you were made an officer of the order of Australia in 2013, and when you were made a companion of the order of Australia in the 2023 Australia Day honours, for eminent to the judiciary and to the law, or organisational and technological reform, to legal education and to insolvency law. As an illustration of your impact beyond these shores, we spoke with Professor Doug Jones AO, a leading international commercial arbitrator and an international judge of the Singapore International Commercial Court who has described you as the intellectual leader of Australian jurisprudence on international arbitration.
Mr Jones says that when Australia was in its first throes of developing as a credible seat of international arbitrations in the region, your Honour's support was crucial. You offered your time and contribution outside the judicial space to this working to advance Australia's role in international arbitration across the world. As a result of what Mr Jones describes as your Honour's unstinting support, there are now many international firms and local firms practicing international arbitration in Australia, but here, Chief Justice, I would like to take the opportunity to do so, particularly on behalf of the profession, the solicitor branch of the profession, for your support in this State.
As everyone in this Court knows, the last few years have been particularly tough for practitioners in Victoria, as pandemic lockdowns threw justice system into disarray and with the advent of virtual hearings which taxed even the most technology savvy of judicial officers and practitioners alike. As backlogs grew, the judiciary and the profession were deeply concerned about the impact on the community in accessing justice in a timely fashion. Into this environment of disruption, uncertainty and frankly, chaos, your Honour strode resolutely, with conviction and with compassion. Your Honour expertly orchestrated the Court's rapid adaptation to pandemic-induced restrictions. Within days of the COVID-19 first lockdown, you sent out memoranda to the profession informing them of the new video conferencing arrangements and urging them to be patient with the new system and the inevitable difficulties that that would throw up.
In these early days when many were struggling with technology and with the challenges to traditional conventions brought about by virtual hearings, your Honour communicated weekly, almost, with the profession, instituting new practice directions to bring about an entirely new way of working. And as virtual hearings became the norm, you also delicately, and gently, reminded practitioners that these were, in fact, real hearings, and that the Court was not a causal engagement. Usual Court formalities should continue to be observed and hearings are no less professional exchanges, no less important, no less meaningful, of no less consequence because they are online.
You also played a pivotal role in supporting and reassuring the profession here in Victoria, writing in September 2021, during the state's six lockdown, on behalf of the judges of the court, expressing your appreciation of how difficult lockdowns had been, acknowledging the personal and the professional strains, difficulties and pressures. You demonstrated empathy and compassion for many in the profession who are juggling family commitments, home schooling and other domestic pressures that exacerbated the difficulties of undertaking the court aEUR" the tasks required of the.
You may it known that the court and all the judges were alive to the difficulties, and that members of the profession should not feel constrained to bring these matters to the attention of the court. We also thank the profession for how they've assisted the court in meeting the demands of the pandemic and in meeting the expectations and the needs of the Australia community in maintain accessing to justice. Your Honour's words, and those of the Chief Justice of Victoria, who's here today, and the Chief Justice of the Federal Circuit Court and Family aEUR" the Federal Family Court of Australia, as he is now known, were received with sincerity and appreciation across the profession.
We know this because practitioners from across the state, from large firms and small firms alike, contacted us to let us know, and because the aEUR" that daily addition of our LIV Law News Net, which carried those letters, was the most opened of all communications that year. Your Honour has been keen to embrace and retain the improvements and efficiencies brought by the technological innovations of the aEUR" as the court adapted to COVID. However, your Honour has also reminded participants that the court should never lose its humanity, and that special care should also be taken with those who are disadvantaged by the changes brough about by technology.
Your Honour's legacy is impressive, including, as your Honour's friend and former Federal Court judge, the Honourable John Middleton says, transforming the court from a collection of different registries, all doing their own thing, into a truly unified national court. Restructuring the court's administration has also required a restricting of judge's expectations to be nationally focused, rather than restricted to their local jurisdiction. Your Honour, although you retire as Chief Justice of this court, no one expects your Honour to retire from professional life or from the hearts and minds of a very grateful profession.
We thank your Honour for your service and for your immense contribution, and warmly wish you and your family all the best as you head into retirement. May it please the court.
ALLSOP CJ: Thank you, Ms Wolff. Justice Kenny.
KENNY J: May I begin by acknowledging the traditional custodians of the land on which we gather, and pay my respects to their Elders, past, present and future.
Chief Justice, Mr Hay, Ms Wolff, and everyone:
It is a privilege and pleasure to speak on behalf of the Victorian Judges this morning.
We thank you, Chief Justice, for all you have done to support, encourage and guide us during the past decade. We have indeed flourished under your leadership.
First, we have benefitted from your energy and enthusiasm. These are invaluable attributes for the leader of strong-minded individuals, as judges typically are. Indeed, you showed your energetic and enthusiastic side when we first met in Melbourne in 2001, as junior judges. We both attended a meeting in Melbourne arranged by Justice Finkelstein, as he then was, to discuss the modernisation of the Federal Court's Library, and you proposed another meeting in Sydney, this time during the weekend. There was some disagreement about the weekend aspect of your proposal, but my recollection is that your energetic insistence and enthusiasm prevailed. The ultimate outcome was a National Court Library fit for decades into the future, and a collection in Melbourne that has sustained and invigorated the work of the Judges of the Court in Melbourne and beyond to this day.
You brought the same energy and enthusiasm to being our Chief Justice. When you returned to this Court in 2013, aspects of the Court's practice and procedure varied in different ways across Australia, from Registry to Registry. Judicial case management varied too, sometimes significantly. Save for appeals, cases were docketed mostly within the relevant State Registry on the basis of the availability of the resident Judges. You made the case for change. Not all agreed upon a more national approach. Judicial views in Melbourne differed: some were supportive, some doubtful, and others firmly opposed.
Now, I cannot say, Chief Justice, whether you are a Star Trek person, but this was indeed your Captain Kirk moment: "to boldly go where no man has gone before". And you did.
The Judges of the Court, including the Melbourne Judges, ultimately agreed to the National Court Framework. Your energy, enthusiasm and intellect drove the change and its subsequent implementation. The Framework changed us in this Registry, as we, in Melbourne, took our place in a court that was even more national in practice and outlook than before.
You have taken care, however, to ensure that the national character of the Court does not lead to disengagement from the community of the Court, both locally and in our region. In keeping with your consultative approach, you have encouraged our involvement in the legal community of Victoria, especially through your support for education, information exchanges and joint celebrations, including your joint hosting with Chief Justice Ferguson and Chief Justice Alstergren of Silks Bows in 2022. You have also encouraged an international outlook, especially through your strong support for cooperation with national courts in the Pacific and elsewhere. Through your involvement, the Court currently has active partnerships and programs with 12 Pacific countries and several Asian nations.
Chief Justice, we in Melbourne have also enjoyed the gift of your scholarship. In this regard, you have clearly led by example. I shall not forget the scholarly exposition of maritime law in Ship Sam Hawk v Reiter Petroleum Inc. Did a maritime lien arise from the supply of necessaries, which includes bunkers, to a ship? If anyone thought this a simple question, they would be wrong.
You, Chief Justice, with Justice Edelman, wrote a scholarly account of this difficult area of the law, which led to the ultimate conclusion that our law did not recognise a maritime lien arising from the supply of necessaries. Below this apparently straightforward conclusion, however, the law report reader will find considered, extraordinarily wide-ranging research, and the most careful evaluation of competing considerations.
There are of course many more cases I might mention. Haritos v Federal Commissioner of Taxation springs to mind and is close to my heart. Here, you led the Court to take a principled, in substance approach to the identification of what was a 'question of law' sufficient to support an appeal from the Administrative Appeals Tribunal to this Court. Although past jurisprudence was messy, your approach throughout the proceeding was clear, and anchored in an appreciation of the history and purpose of a statutory appeal of this kind.
Your writing and scholarship adorn the Federal Court Reports, as orchids do nature; they are spots of delight! These spots of delight have inspired us all in Melbourne to try a little harder and care a little more.
Your scholarly interests have also enhanced our judicial education where, as Justice Moshinsky reminded me recently, you encouraged us to think about topics of wider intellectual interest relevant to our understanding of our work, such as, for example, Dr Iain McGilchrist's presentation on the working of the human brain with respect to problem-solving, with its capacity to attend to detail and also to see things as a whole.
Chief Justice, you have, through your judgments, show a singular ability to express how these elements of legal reasoning intersect with and inform the other. No better example can be found than the often cited passage in your reasons in Hands, where you explained that a lawful exercise of executive power under our system of law entails an obligation to confront the human consequences of its exercise aEUR" an obligation born out of common decency and shared humanity, which cannot be discharged by recourse to decisional checklists or formulaic expressions.
Your concern that the law recognise individual dignity is not found only in your judgments. Justice Mortimer reminded me that, as Chief Justice, you have driven the expansion of the Court's pro bono assistance scheme, particularly for unrepresented applicants in immigration detention. What started as a measure to aid them pro tempore during the COVID-19 pandemic has, under your leadership, become a hallmark of the Court.
To conclude, not long ago, Chief Justice, you advised a litigant in person that they would be given a full opportunity to put what they wanted to the Court. I was there: that opportunity was given. Your patience and courtesy in that case reminded me again that we administer the law principally to protect people from the unlawful exercise of power whether by the State or private interests. By word and action, you have always reminded us of the human dimension of the law, and that we, Judges, are here for everyone.
Chief Justice, we regret your departure from the Court. We thank you for all you have done for us as Chief Justice, and we wish you much happiness and satisfaction in your life after the Court.
ALLSOP CJ: Thank you, Justice Kenny. For the last time, in this beautiful courtroom, with the Constitution on the window thanks to former Chief Justice Black, I now adjourn the Court.
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628.
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