Allsop, Justice James --- "Farewell sitting of the Full Court for the Honourable Chief Justice Allsop AC - Perth" (FCA) [2023] FedJSchol 8

aEUR|a fruitful parent of injustice is the journey of concepts.

You explained that equity shuns taxonomy and, instead, seeks to deal pragmatically and emphatically to address human relationships. You suggested that statutes should be interpreted in context, applying the technique that rejects simple bright lines where fairness and decency of behaviour are being called for. Drawing from Iain McGilchristaEURtms work in The Master and His Emissary, your Honour has explained, more than once, that:

Law is often nonlinear because it is necessarily both relationship and experiential and the neuroscience tells us that there is the need to balance and integrate the explicit and the implicit, the part and the whole. Law is not all about taxonomy, systems, rules and definition. The human context matters.

In a recent series of lectures on creativity and the brain, Professor Indre Viskontas has made vivid the self-delusion of the left brain. It does not always know why the right brain does what it does.

But it also doesnaEURtmt know that it doesnaEURtmt know and it retains the illusion of control. It makes up a reason for an action even when it does not know the whole story.

Your Honour has emphasised many times why a left-sided approach to legal problems can lead into self-delusional error. Your Honour has always sought to integrate rules with principle. Your HonouraEURtms skill, deep knowledge and intuitive approach will be much missed, if I may say so, with the greatest of respect. On 13 May 2013, there was a ceremonial sitting in Perth in this courtroom to welcome your Honour as Chief Justice. I recall, as if it were yesterday, you gave an anecdote referring to the time when you were an associate to Sir Nigel Bowen. You referred to a test case before the then Chief Justice, Sir Nigel Bowen, Justices Brennan and Deane in a patent case that followed. You said:

One could feel the mental power encased and folded in the polite exchanges. It taught me the value of civilised discourse as the marker of a good court as part of the proper exercise of judicial power. That is, that civility is not an affectation, but a proper instance of the exercise of that power.

Your Honour has been the Chief Justice for a decade of a Court that now has more than 50 Judges. Long may the reputation of the Court as a place of civilised discourse continue. Hopefully, your HonouraEURtms approach reflecting the long tradition of the Court has been permanently inculcated into the fabric of the Court. The work of the Court is vast. Your HonouraEURtms contribution in explaining the ambit of Federal jurisdiction has assisted in making the Court a national court of stature, not just a Court that interprets Commonwealth law. There is a small parallel with the work that the Honourable Robert French AC did in the 1980s in explaining the black hole of the Federal CourtaEURtms accrued jurisdiction, using that now unfashionable and inappropriate term.

Last, may I mention Minister for Environment v Sharma where, in 2022, the Full Court, in which your Honour presided, held that the Minister did not owe a duty of care to children in Australia to consider environmental conditions when approving an extension of a coal mine. The Court decided the case by applying established principle. The case was characterised in the press as:

aEUR|undoing 20 years of climate litigation progress in Australia.

There is little doubt you would have met that misplaced criticism with dignity, not despair. It is my privilege to say a few words on behalf of the WA Bar to farewell your Honour. May your work continue in other ways. May it please the Court.

ALLSOP CJ: Thank you, Mr Dharmananda. Mr Golem, President of the Law Society.

MR A. GOLEM: May it please the Court. The Law Society joins in acknowledging the traditional owners of the land on which we meet, the Whadjuk people of the Noongar Nation. On the SocietyaEURtms behalf, I pay my respects to their elders, past and present. It is a privilege to appear today on behalf of the Society at this special sitting to farewell the Honourable Chief Justice, James Allsop AC. May I also take the opportunity to welcome and congratulate our new silks on their eminent appointments as Senior Counsel in the legal profession. Their appointment is recognition of their demonstrated distinction in the practice of the law. Each of the appointees have proven their legal abilities and integrity over a long career.

Over this past year there have been many occasions to celebrate both the welcoming of new Judges as well as to celebrate and acknowledge farewells and retirements. Each of these occasions have become extremely important, and for those at the bar table they are a special privilege. We are, again, privileged on this occasion to mark your HonouraEURtms farewell from the position of Chief Justice of the Federal Court of Australia, a role, as weaEURtmve heard this morning, you have occupied for almost 10 years. Your Honour has enjoyed a long and illustrious career. A short synopsis does not do justice to your HonouraEURtms lifetime of achievements, but let me say something briefly.

From 1981 to 2001 your Honour practised at the Bar in New South Wales and elsewhere in Australia. Your Honour was then appointed Senior Counsel in New South Wales in 1994 and QueenaEURtms Counsel in Western Australia in 1998. From May 2001 to June 2088, your Honour served as a Judge of the Federal Court of Australia undertaking the roles of trial judge and appellate judge on a full range of Federal Court work. From June 2008 to February 2013, your Honour was President of the New South Wales Court of Appeal. Your Honour was appointed Chief Justice of this Court in March 2013. It was also the same year that your Honour was appointed as an Officer of the Order of Australia.

In this yearaEURtms Australia Day Honours List, as weaEURtmve heard earlier this morning, you were appointed a Companion of the Order of Australia. So itaEURtms an interesting fact, your Honour, that your appointment as Chief Justice of this Federal Court as well as your retirement from this eminent position have coincided with both of your HonouraEURtms respective appointments to the Honours List. Upon the announcement of the Honours List, the Governor-General, David Hurley, said this: aEURoeThis yearaEURtms recipients have had a significant impact on the local, national and international level and are quite simply inspiring. They go above and beyond. They are from all over the country. They contribute every day in every way imaginable. These are the people who see us through the good times and, also, the bad. They are the first to show up and the last to leaveaEUR.

The Governor-General went on to say, aEURoeThey are almost always humble to a fault, but I urge the recipients for today at least to put aside their humility. ItaEURtms important that they know how much they are valuedaEUR. As we have the privilege to bid farewell today I would like to reiterate these wise words and reflect on your HonouraEURtms career with deep respect and gratitude for all the good work that your Honour has done in your service to society. Throughout your HonouraEURtms tenure as a Chief Justice of the Federal Court, a role that carries enormous workload both in terms of judicial and administrative responsibilities, your Honour has shown great leadership, good judgment and great empathy.

Importantly, your Honour has epitomised the CourtaEURtms integrity and, also have always shown great leadership in reminding us of the importance of remembering the human experience both of litigants and lawyers. As your Honour reminded us in an address to the Bar Association last year where your Honour said this: aEURoeThe success of technology and its adaptation in the courtroom is to be measured by the experiences of the people involved particularly those who rely on the Court and those whose liberties are at risk. It is the lived experience of those people which requires the greatest attentionaEUR.

Ten years ago the Federal Court of AustraliaaEURtms ceremonial sittings welcomed your Honour, and you said the following words which resonate with us today: aEURoeWhen this Court was established, relations with state and courts in a number of states was, to put it mildly, less than where it should be. That perhaps was understandable in human terms, but if one appreciates the importance of Chapter III of the Constitution and section 77, in particular, one realises the importance, indeed, the Constitutional importance of good, cooperative and collegiate arrangements, relationships between Courts of the different policies in the one nation. We are all part of one integrated and federated legal systemaEUR.

Your Honour has demonstrated great leadership, humanity and strengthened the relationship between the Courts among the different jurisdictions and the legal profession, as a whole, is indebted to your HonouraEURtms hard work and commitment to the administration of justice. We are truly privileged to attend todayaEURtms sitting 10 years on and to extend our collegiality and our deepest respects to your Honour on this important occasion. On behalf of the Law Society, I am delighted to congratulate your Honour on an extraordinary judicial career and the Society and our members wish your Honour and your family all the very best for the next steps that you take together. May it please the Court.

ALLSOP CJ: Thank you, Mr Golem. Justice Banks-Smith.

BANKS-SMITH J: Chief Justice, Judges of this Court, Judges of the Court of Appeal and of the Supreme Court, Judges of other Courts and Tribunals, members of the profession and to all of you present here today, it is an honour to have the opportunity on behalf of the Western Australian Judges of this Court, both former and present, to acknowledge your HonouraEURtms contribution as the fourth Chief Justice of the Federal Court of Australia.

Time does not permit a comprehensive review of your HonouraEURtms 22 years in judicial service to the Australian community. The fact that your Honour has served as both the President of the New South Wales Court of Appeal and as Chief Justice of this Court speaks for itself. But I do want to acknowledge briefly your HonouraEURtms contribution to the jurisprudence of this country and your role in leading a cohesive Court that operates across an extraordinary geographic span.

Your HonouraEURtms interest in the law is broad and deep. You have continued to sit both at appellate level and first instance. You have promoted and enhanced the reputation of this Court as a Commercial Court. In particular, you have viewed ordered disputed resolution processes as underpinning efficient commerce. Your Honour discussed the importance of this in Commondate Marine v Pan Australia Shipping in the context of elections between arbitration and litigation. It is also apparent from your HonouraEURtms analysis of the content of a contractual requirement to negotiate in good faith in United Group Rail Services and Rail Corporation of New South Wales.

Your academic endeavour and scholarship is perhaps most apparent in some of your decisions in specialised areas, such as arbitration, insurance and maritime law. For example, in Gordian Runoff Limited v Westport, when on the New South Wales Court of Appeal, you examined closely the nature of an error of law by an arbitrator and the nature or arbitral reasons. Your HonouraEURtms interest in maritime law stems from a deep understanding of the significance of international maritime transport, a method of transport that carries the dominant proportion of world trade. Such trade cannot operate without a largely harmonious international system that recognises priorities and security interests.

In this context, in your lead judgment in The Ship Sam Hawk v Reiter Petroleum you rejected an argument that a lien in rem over bunkers, or fuel supply, was recognised under Australian Maritime Law. In El Greco (Australia) v Mediterranean Shipping Co you comprehensively addressed the method of counting the number of units or packages in a shipping container for the purpose of limited liability for lost cargo. Your HonouraEURtms examination was subsequently discussed by the United Kingdom Court of Appeal on a number of occasions.

But it is not in the outcome of such cases that your HonouraEURtms contribution is to be recognised, but in the record your reasons provide of the history of the maritime lien, time charter, bills of lading and the nature of international maritime rights.

Your HonouraEURtms intellectual leadership has also extended deeply into the human rights work of this Court. Your HonouraEURtms reasons in Hands v Minister for Immigration and Border Protection are cited regularly by Counsel and the Court in highlighting the need for the proper consideration of what harm might befall a non-citizen if they are deported from Australia. Your Honour emphasised that where decisions that might have devastating consequences for people are being made by those in power, there must be a real consideration of the circumstances. In your words:

Confronting what is being done to people.

Many years previously, in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs, your Honour did just that where you considered in detail the Convention Relating to the Status of Refugees done at Geneva in 1951 in seeking to ascertain how AustraliaaEURtms changing protection obligations to Hazara from Afghanistan were to be assessed in the face of escalating war in that country.

Your capacity for empathy was also apparent in some of your decisions on the New South Wales Court of Criminal Appeal. For example, your cris de coeur, if I might respectfully use that expression, over mandatory minimum sentences for people smugglers in Karim v The Queen and Magaming v The Queen. Your Honour observed that persons affected by such mandatory minimum sentences were often uneducated, illiterate and indigent, hailing from communities marked by disadvantage. They were deckhands with no real involvement in the commercial or organisational level of smuggling.

I know that some of these decisions are the ones that your Honour will reflect upon fondly over the years to come.

Your Honour has also shaped the internal workings of the Court by the significant introduction of national practice areas, focused case management and specialised lists, including in the areas of insurance, corporations and bankruptcy. Such an approach has encouraged collaborative involvement in management of the CourtaEURtms work by all Judges and Registrars.

And, finally, I want to say something about your HonouraEURtms stewardship and the privilege it has been to serve on your Court. Your Honour has always been accessible to the Judges of the Perth Registry. Indeed, you had given the impression of having considerable affection for Western Australia. We may have sometimes assumed we are the favourite children. You have visited regularly. During the COVID pandemic, when we were a somewhat more isolated outpost than usual, your Honour made a concerted effort to keep in touch with us by phone.

This is a collegiate Court. On the rare occasions when we are all together, there is palpable friendship, camaraderie and mutual support. Your Honour has sought to provide pastoral care and taken that role seriously. Your Judges speak highly of you. You have earned and enjoy the respect of all. That is no mean feat as we are not known for being shrinking violets.

And during it all, your Honour has steadily reminded us of the effect of our exercise of power on people, groups and society more generally, and that it is essential to reflect always on the human reality of what we do. On a lighter note, we have enjoyed your company and observing the delight you take from what others might assume to be mundane; in particular, your interest in all things maritime.

I have the special pleasure of driving up our beautiful coast and past the Fremantle Port each day, seeing which cargo ships are in town, and the bustling loading and unloading of cars and containers. Whilst far from being a ship spotter, I reluctantly concede that I have identified a few favourites over the years. Some have beautiful paint jobs. Some have aspirational names.

The day always starts well if overnight arrivals have included the Positive Leader, the Positive Challenger, the Victorious Ace or the Brilliant Ace.

Chief Justice, you have been our Positive Leader and our Brilliant Ace. We wish you, Sandy and your family well as you embark on this next stage.

I know that I speak for all of the Perth Judges in thanking your Honour for your enormous contribution to this Court and to the administration of justice in Australia. We will continue to reflect on that contribution every day as we strive to deploy power in accordance with your example, with humility and humanity.

ALLSOP CJ: Thank you, Justice Banks-Smith. Thank you all for coming. I very much appreciate it. Please adjourn the Court.

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