Ceremonial - Swearing in of Gordon J - Canberra

[2015] HCATrans 140

[2015] HCATrans 140

H I G H   C O U R T   O F   A U S T R A L I A

CEREMONIAL SITTING

ON THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE MICHELLE MARJORIE GORDON

AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

ON

TUESDAY, 9 JUNE 2015, AT 2.14 PM

Coram:

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Honourable Sir Gerard Brennan AC KBE, retired Chief Justice of the High Court of Australia

The Honourable Murray Gleeson AC QC, retired Chief Justice of the High Court of Australia

The Honourable Sir Daryl Dawson AC KBE, CB, retired Justice of the High Court of Australia

The Honourable William Gummow AC QC, retired Justice of the High Court of Australia

The Honourable Kenneth Hayne AC QC, retired Justice of the High Court of Australia

The Honourable Dyson Heydon AC QC, retired Justice of the High Court of Australia

Members of the Judiciary seated within the Court:

The Honourable Thomas Bathurst AC, Chief Justice of the Supreme Court of New South Wales

The Honourable Christopher Kourakis, Chief Justice of the Supreme Court of South Australia

The Honourable Christopher Maxwell AC, Acting Chief Justice of the Supreme Court of Victoria

The Honourable Justice Susan Kenny, Federal Court of Australia

The Honourable Justice Richard Edmonds, Federal Court of Australia

The Honourable Justice John Middleton, Federal Court of Australia

The Honourable Justice Mordecai Bromberg, Federal Court of Australia

The Honourable Justice Alan Robertson, Federal Court of Australia

The Honourable Justice Debra Mortimer, Federal Court of Australia

The Honourable Justice Mary Finn, Family Court of Australia

The Honourable Justice Stephen McLeish, Court of Appeal of the Supreme Court of Victoria

The Honourable Justice Melanie Sloss, Supreme Court of Victoria

The Honourable Associate Justice Nemeer Mukhtar, Supreme Court of Victoria

The Honourable Justice Richard Refshauge, Supreme Court of the Australian Capital Territory

Her Honour Judge Sandra Davis, County Court of Victoria

The Honourable Michael Black AC QC (retired)

The Honourable Ray Finkelstein QC (retired)

The Honourable Peter Jacobson QC (retired)

The Honourable Paul Finn (retired)

The Right Honourable Chief Justice Dame Sian Elias GNZM

At the Bar Table the following persons were present:

Senator, the Honourable George Brandis QC, Attorney‑General for the Commonwealth

The Honourable Mark Dreyfus QC MP, Shadow Attorney‑General for the Commonwealth

Mr Justin Gleeson SC, Solicitor‑General of the Commonwealth of Australia

Mr Michael Sexton SC, Solicitor‑General for the State of New South Wales

Mr Michael Grant QC, Solicitor‑General for the Northern Territory

Mr Grant Donaldson SC, Solicitor‑General for the State of Western Australia

Mr Peter Garrisson SC, Solicitor‑General for the Australian Capital Territory

Mr Peter Dunning QC, Solicitor‑General for the State of Queensland

Mr Michael O’Farrell SC, Solicitor‑General for the State of Tasmania

Mr Duncan McConnel, President of the Law Council of Australia

Ms Fiona McLeod SC, President of the Australian Bar Association

Mr James Peters QC, President of the Victorian Bar

Ms Jane Needham SC, President of the New South Wales Bar Association

Mr Peter Quinlan SC, President of the Western Australian Bar Association

Mr Shane Gill, President of the Australian Capital Territory Bar Association

Mr David Jackson QC

Mr David Bennett QC

Speakers:

The Honourable George Brandis QC, Attorney‑General for the Commonwealth

Mr Duncan McConnel, President of the Law Council of Australia

Ms Fiona McLeod SC, President of the Australian Bar Association

Mr James Peters QC, President of the Victorian Bar

TRANSCRIPT OF PROCEEDINGS

GORDON J:   Chief Justice.  I have the honour to announce that I have received a Commission from His Excellency, the Governor‑General, appointing me a Justice of the High Court of Australia.  I now present the Commission.

FRENCH CJ:   Mr Principal Registrar, would you please read aloud the Commission.

PRINCIPAL REGISTRAR:  

Commission of Appointment of a Justice of the High Court of Australia

I, General the Honourable Sir Peter Cosgrove AK MC, Retired, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and section 5 of the High Court of Australia Act 1979, appoint the Honourable Justice Michelle Marjorie Gordon, a Judge of the Federal Court of Australia, to be a Justice of the High Court of Australia, commencing on 9 June 2015 until she attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 14 April 2015.  Peter Cosgrove, Governor‑General, By His Excellency’s Command, George Brandis, Attorney‑General.

FRENCH CJ:   Justice Gordon, I now invite you to take the Oath of Allegiance and of Office.

GORDON J:   I, Michelle Marjorie Gordon, do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to law, that I will well and truly serve Her in the Office of Justice of the High Court of Australia and that I will do right to all manner of people, according to law without fear or favour, affection or ill‑will.  So help me God.

FRENCH CJ:   Justice Gordon, I now invite you to subscribe the Oath of Allegiance and of Office. 

FRENCH CJ:   Mr Principal Registrar, would you please place the Oath of Allegiance and of Office and the Commission with the records of the Court. 

PRINCIPAL REGISTRAR:   Yes, your Honour.

FRENCH CJ:   Justice Gordon, I now invite you to take your seat at the Bench and to proceed to the discharge of your duties as a Justice of the High Court of Australia. 

GORDON J:   Thank you, Chief Justice.

FRENCH CJ:   Mr Attorney.

MR BRANDIS:   May it please the Court.

On behalf of the government and the people of Australia, I congratulate your Honour on your appointment as the 52nd member of this Court.

May I acknowledge the presence in the Court today of the Chief Justice of New Zealand, the right honourable Dame Sian Elias, the Chief Justices of the Federal Court of Australia and of the Supreme Courts of New South Wales, Victoria and South Australia, two former Chief Justices of this Court – the honourable Sir Gerard Brennan and the honourable Murray Gleeson, as well as four former Justices of this Court – the honourable Sir Daryl Dawson, the honourable William Gummow, the honourable Dyson Heydon and, of course, the honourable Kenneth Hayne. 

Might I also acknowledge the presence of so many current and former members of federal, State and Territory courts, of the Commonwealth Solicitor‑General, the Solicitors‑General of the States and the Territories, the Shadow Attorney‑General, leaders of the legal profession and, in particular, so many members of the Victorian Bar. 

I want to especially acknowledge the presence of members of your Honour’s family who so proudly share this occasion with you – your husband of 20 years, the honourable Kenneth Hayne, your mother Mrs Coral Gordon, your son James, Andrew, Ian and Richard Hayne and their partners, and your brother Murray and his wife Lisa.  It is a testament to the esteem in which your Honour is held that so many members of the judiciary, of the legal profession and other dignitaries are present today.

Your Honour was born and raised in Western Australia and graduated from the University of Western Australia with degrees in Law and Jurisprudence.  You began your legal career in Perth in 1987 at the leading commercial law firm then known as Robinson Cox, now Clayton Utz.  I am told that at one stage during your Honour’s time at Robinson Cox you were an Articled Clerk to my colleague, the Foreign Minister, the honourable Julie Bishop, who remembers you as a young lawyer who, by dint of your obvious high intelligence and impressive work ethic, was already marked out for great things.

In 1988 your Honour moved to Melbourne to practise at Arthur Robinson & Hedderwicks, now Allens, working in commercial litigation.  Your Honour became a senior associate of that firm.  However, the Bar beckoned.  So in 1992 you were called to the Victorian Bar.  You read first with Geoffrey Nettle QC, whom you now join on this Bench, and with Nemeer Mukhtar, now a member of the Supreme Court of Victoria. 

Your Honour quickly became what is often known as a fashionable junior and established a busy and diverse practice with emphasis on large commercial, taxation and public law matters.  Despite the volume of work your Honour always retained a sharp sense of humour and had a reputation for modesty, integrity and a great sense of duty.

Among the many leading cases in which your Honour appeared were Truong v The Queen, where you appeared for the Commonwealth, which concerned the application of the specialty doctrine to Australian extradition law; Central Bayside General Practice Association v Commissioner of State Revenue which considered whether wages paid by the Association were exempt from payroll tax on the basis that it was a charitable body; Zentai v Republic of Hungary in which your Honour appeared for the respondents and for the Commonwealth Attorney‑General as intervener - the question arising in extradition proceedings was whether the Commonwealth Parliament can impose an administrative duty on a State officer without State legislative approval; the long‑running taxation case of Woodside Energy v Commissioner of Taxation which concerned the deductibility of hedging losses for the purpose of calculating taxable profits and the petroleum resource rent tax and there were many others as well.

Your Honour’s success owes much to that prodigious work ethic which so impressed the Foreign Minister all those years ago.  Your colleagues have always been impressed; indeed some have been confounded by your ability to manage a heavy workload while always finding time to assist and mentor others and to contribute to the education of your fellow legal practitioners.  Your role as mentor to younger practitioners is often commented upon with admiration.

In 2003, after only 11 years at the Bar, your Honour took silk.  You made the transition to the inner Bar seamlessly and were immediately briefed in large and complex matters, more often than not against leading silks many years your senior.

In 2007, your Honour became a Judge of the Federal Court of Australia.  It was an appointment that was received with widespread acclaim by members of the legal profession and the judiciary alike and while acceptance of judicial office is always a great privilege, doubtless accepting appointment so early in such a promising career as a member of the inner Bar was a sacrifice as well as an honour.

You immediately made an impact on the court as you brought to bear to your work as a Judge the same industry and efficiency for which you were renowned as a barrister.  At the time you were appointed it was not uncommon for some revenue cases to take two years just to get to trial, followed by another year’s wait for a judgment, all of which increased the costs of litigation and significantly delayed many litigants access to review by the Court. 

You were instrumental in the development of the Federal Court’s Tax Practice Note, the implementation of which expedited the hearing process by limiting the pre‑trial phase and focusing on the real issues in dispute.  Such was your Honour’s strong management of revenue cases that without sacrificing quality the disposal of tax cases doubled in speed.

Your Honour’s desire to make a difference has not been limited to procedural matters.  You have led the Federal Court’s participation in the annual Indigenous Law Students’ Clerkship program which offers indigenous law students three one‑week clerkship positions with each of the Victorian Bar, the Federal Court in Melbourne and the Supreme Court of Victoria.  Your Honour’s commitment to the program and belief in the students is well known and much admired by the participants.

Your Honour has also nurtured many outstanding young lawyers, especially your former readers and associates, for all of whom this is a very proud day, and many of whom gather in your honour in the Court today.

Your Honour’s appointment to this Court is a well‑deserved recognition of your exceptional skills as a lawyer, your distinguished career as a barrister and judge and the high esteem in which you have been held in both of those capacities.  The swearing‑in of a new Justice of this Court is no small moment in the history of our nation.  As I said before, this is only the 52nd time that it has occurred.  True it is that its happening is chiefly noticed by members of the legal profession, but the fact that appointments to this Court usually pass with so little remark is not a sign of public indifference but an indication of confidence in this Court as an institution and in the skill, scholarship and integrity of those who serve upon it.

On the occasion of his swearing‑in as the Chief Justice, Sir Gerard Brennan said - if I may quote him, “The Courts have earned and maintained public confidence in their unfailing response to every reasonable application, by their impartiality and the fearless administration of the law.”  Those words are as true today as when they were uttered all those years ago.

Australia is blessed with a judiciary that has always been respected by the people for its fearlessness and independence. For 112 years this Court has stood at the pinnacle of that judiciary as the definitive interpreter of our Constitution, as the supreme bulwark of our freedom, as the most important guardian of the rule of law and as the ultimate protector of the rights of the citizen against the power of the State.

Your Honour has already made a substantial contribution to that great judicial tradition for the past eight years.  In the many years which lie before you on the High Court, you will, no doubt, continue to bring lustre to that tradition as you uphold the values which it serves.

On behalf of the government and the people of Australia, I again extend my warmest congratulations to your Honour and wish you well in the discharge of the weighty responsibilities of your office.

May it please the Court.

FRENCH CJ:   Thank you, Mr Brandis.  Mr McConnel.

MR McCONNEL:   May it please the Court.

It is with great pleasure that I appear today on behalf of the Law Council of Australia, the nation’s peak legal body, to welcome your Honour’s appointment to the High Court of Australia.

Your Honour has made an outstanding contribution to the law over three decades, as practitioner, scholar, educator and judge. We have heard the Attorney‑General outline how your career progressed from Articles of Clerkship in Perth to Justice of the High Court.  It is a path marked by a prodigious work ethic and apparently, by your Honour’s own admission, a strong attachment to your Blackberry.

In 1992, soon after being appointed as a senior associate at Arthur Robinson & Hedderwicks, your Honour moved to the Bar.  As the Attorney‑General has outlined you practised widely in commercial law with a focus on revenue law, trade practices, public law, constitutional law and extradition law.  The client list was broad and impressive – major corporations, regulators, government departments, the Tax Office, transport providers and foreign governments.  All benefitted from your Honour’s ability to get to the heart of the matter in the most efficient way possible.

This has become a hallmark of your Honour’s work on the Federal Court since appointment in 2007.  Counsel have encountered a jurist who is firm on the conduct of cases, but who also keeps matters moving, a fact which is greatly appreciated by clients.  It is perhaps no surprise that you have become an enthusiast for litigation reform and been instrumental in the development of the popular “Rocket Docket” and other case management initiatives at the court. 

Your Honour is adept at handling large, complex litigation, including a multiplicity of class actions and has been recognised as an expert on tax, not least by this Court when, in 2009, it restored your Honour’s decision at first instance in Spriggs v Commissioner for Taxation, which found that footballers could treat their management fees as tax deductible, and again, in 2011, when your decision in BHP Billiton v Commissioner of Taxation was upheld unanimously on appeal to the Full Court of the Federal Court and again on appeal to this Court.

Other decisions on unconscionability in trade practices law, immigration and statutory interpretation have all won praise for their clarity and precision.  An example of this is to be seen in the Sea Shepherd Case.  Sea Shepherd is a well‑known environmental organisation which proclaims that its captain, Paul Watson, is the world’s most aggressive, most determined, most active defender of wildlife. 

Sea Shepherd sought deductible gift recipient status for donations made to further its causes.  It sought to demonstrate that its activities included providing short‑term direct care to animals, but not only native wildlife, that had been lost, mistreated or are without owners.  Sea Shepherd did not, it seems, reckon on an encounter with your Honour.  Your Honour disposed of their argument comprehensively, but economically, with the following statement: 

“Sea Shepherd’s argument depended upon an atomised analysis of Item 4.1.6.  Its submission depended upon taking separate words of the provision (particularly the word “care”) and, contrary to the principles of statutory construction, applying to each word one particular aspect of a dictionary definition.  Sea Shepherd then sought to add the various definitions together and produce what it submitted was a meaning for the relevant provisions that accorded with its case.

This approach to construction of the relevant provisions was rightly rejected by the Tribunal.  Construction of a statute cannot be undertaken with no more than the words of the provision in one hand and a dictionary in the other.”

An example of the acknowledgment of your Honour’s clarity and precision is to be found in the Federal Court’s decision in the ANZ Banking Group v Paciocco Case, the bank fees class action.  Your Honour’s judgment at first instance was in fact overturned by the Full Court just in April of this year, at about the time of your Honour’s appointment to this Court.  There was some media excitement about that decision.  Being overturned on appeal is not in itself unusual, but what I would submit is very rare indeed and was not reported is that in the process of overturning your Honour’s decision the Chief Justice of the Court would begin his judgment with these words:  “Though I have reached a different conclusion to the primary judge on a number of matters in the appeal, I wish to pay tribute to the meticulous detail and clarity that mark her Honour’s reasons in respect of a large and factually and legally complex commercial case.”

Away from the court, your Honour has been someone who has given back to the profession and society.  Your Honour’s appointment holds a special place for the Law Council, and particularly its staff.  Your Honour is a longstanding member of the Business Law Section’s Tax Committee and judges the Forsyth‑Pose tax scholarship, which is awarded by that section.  Your Honour has also undertaken numerous workshops conducted jointly between the Federal Court and the Law Council’s Federal Litigation and Dispute Resolution section.

One association that bears particular mention is of a young graduate in 2008 who worked at the Law Council and then became an associate to your Honour at the Federal Court.  This young lady became very ill, so ill that she was unable to attend her admission ceremony in Sydney.  Your Honour approached the then Chief Justice of the New South Wales Supreme Court, Justice Spigelman, and he graciously arranged for an admission ceremony in his chambers surrounded by her family.  It was a highpoint of this young lawyer’s life.  She sadly passed away a few months later.  The Law Council officers were touched by your Honour’s compassion and commitment to this young lady, to ensure that someone with such a keen interest and passion for the law was able to realise her dream of admission to the profession and, needless to say, they were all delighted on news of your Honour’s appointment to this Court.

Your Honour may have left Perth more than 25 years ago, but you brought two things with you as you crossed the Nullarbor:  a love of beaches and a loyalty to the West Coast Eagles.  I doubt that the current Foreign Minister, who I understand is here today, would have allowed for any flagging of your Honour’s devotion to the Eagles, even though it must have been tough for you at times living in Melbourne, except, of course, in 2005 and 2006.

As for the surf, your Honour had to head away from Melbourne to the Gippsland region to find a real beach.  It began an association with the Waratah Bay Surf Lifesaving Club at Sandy Point in South Gippsland, which grew as your son James showed more interest.  You were involved with the Nippers program at the club for many years and won the plaudits of parents for making it both safe and fun.

Your Honour also has a passion for the visual arts and a weakness for antiques.  Earlier this year you gave a speech at the launch of a collection of antiques in Melbourne.  You described it in terms that seemed familiar to those there who have seen your Honour in action:  “It is clever, it is bold, it makes you think.”  However, one should be wary of taking too much from that speech because your Honour also offered that “It proves the rule that there are no rules”.  Somehow I doubt that your Honour would be so willing to reach that conclusion when it comes to the law or the courtroom.

Your Honour, the brief précis of cases that I have referred to reinforces the reputation that your Honour has quickly developed in a little over eight years on the Bench, not just for your grasp of the most complex areas of law, but for your mastery of court procedure and your willingness to experiment with new measures and new approaches in the interest of improved outcomes for litigants.  Your Honour’s clarity of reasoning will be of a great assistance to students and lawyers alike and will enhance the work of this Court.

On behalf of the Australian legal profession, I offer our heartfelt congratulations and look forward to the contribution that your Honour will undoubtedly make to the work of this Court for many years to come.

May it please the Court.

FRENCH CJ:   Thank you, Mr McConnel.  Ms McLeod.

MS McLEOD:   May it please the Court.

I appear on behalf of the Australian Bar Association.  On behalf of the independent Bars of Australia, I warmly congratulate your Honour upon your appointment to this Court.

Your Honour was focused and able as counsel, always mindful of the requirement of integrity in all your dealings with opponents and the Bench, and warmly embracing the collegiality of the independent Bar.  You were generous with your time and in your attention to the needs of others, including your colleagues on the 14th Floor of Owen Dixon Chambers West, and your readers, Frank O’Laughlin and Rowena Orr.  These qualities were also evident after your appointment as a Justice of the Federal Court.

Your appointment to this Court has been widely welcomed, with one former Federal Court associate writing pithily in the online bulletin Women’s Agenda:  “she’s cool - really cool”. 

At a ceremonial sitting of this Court, to mark the retirement of Justice Ken Hayne nearly two months ago in Sydney, his Honour remarked upon the continuity that underpins the administration of justice in this country, noting:

…in accordance with the unbreakable tradition of the Bar, whenever there is a retirement or death, the universal response of the Bar has always been that single compound statement:  “That is a shame.  Who is going to be appointed?” 

Who indeed!

Your Honour is extremely modest about your own achievements.  About 12 years ago I called your Honour to congratulate you on your appointment as silk, before the official list had been published.  Your Honour hedged and shifted, and finally asked coyly, “Well, how did you know?”  “I know”, I explained, with unshakeable confidence, “because your name appears on my letters patent”. 

The Victorian silks in our year also included their Honours Justices Bromberg, Mortimer, Ginnane, Macaulay and Riordan, his Honour Judge Parrish, the DPP John Champion, and IBAC Commissioner Stephen O’Bryan and, of course, Mr Peters.  However, it was your Honour who has rocketed ahead, assuming your characteristic pace in all things, to take up your appointment here.

As counsel and as a Justice of the Federal Court, your Honour is highly regarded for your incredible energy, your hard work, intense concentration and crisp style of oral and written work - described by some as very “propositional”.  Your judgments are typically characterised by this style, for example:  “In this case these are the facts; the following propositions of law apply:  a, b, c; by reason of these, the following is the necessary result.” 

This personal style was, I understand, hugely influenced in your formative years at the Bar by your master and good friend, Geoff Nettle, as his Honour then was.  Nettle’s advocacy reached its zenith, according to Victorian Bar folklore, on a special leave application where it is reported his submissions went something like this:  “This case is wrong.  It cannot stand.  Special leave must be granted.”

Like Justice Nettle, your Honour is unswayed by charm and flattery.  With both of you likely to have the running of many Melbourne special leave applications, we think the repetition of those brisk submissions and an absence of rhetoric may just improve our chances.

You mastered the ability to reduce huge volumes of material to simply stated issues.  The PrimeLife Cases are a good example, as your Honour as counsel for ASIC methodically and with military precision dismantled an empire of non‑compliant retirement village managed investment schemes. 

For many years your Honour presented a session on injunctions to the readers in the final weeks of the course.  In those days, the readers may have become a tiny bit complacent to this point in the course, believing they had nothing more to learn.  Then in bowled your Honour – and they each spent the next hour or so furiously working their way through individually tabbed and paginated folders of materials on the jurisdiction of the court, principles, discretionary considerations and relief, all the while furiously scribbling in the margins.  The readers treasured those sessions and your Honour’s legendary injunctions folder was in great demand around chambers for many years.

As a judge, you deftly managed huge and complex cases, including the BHP Billiton Finance tax case, the Centro and ANZ Bank fees class actions and Asahi with clear articulation of your direction, insistence that counsel identify and frame the key issues and prompt delivery of judgments a hallmark.

As mentioned, with Justices Finkelstein and Middleton, the three “rock‑ettes”, your Honour pioneered the development of the aptly named “Rocket Docket” in commercial cases - piloted in the Melbourne registry of the Federal Court. 

Your Honour was Convenor of the Tax List - involving all taxation cases in the Federal Court, and was the co‑ordinating tax judge for Victoria and Tasmania.

Your Honour embodies the “overarching purpose” provisions of the Federal Court of Australia Act to “facilitate the just resolution of disputes:  according to law; and as quickly, inexpensively and efficiently as possible”.  There is no doubt the key to your success was your Honour’s prodigious effort and focus on the justice of the case and your role as the judge in achieving justice. 

Your Honour’s philosophy is wholly focused on achieving justice according to law and in educating, enabling and supporting others in the process to that end, not only counsel, but the registrars in their role as mediators, associates, law students and Bar readers.

In your Honour’s more than eight years on the Federal Court, there was never the slightest drop in concentration.  You are known to have offered to take additional cases to assist your colleagues the minute space appears on your list.  Your Honour and Justice Middleton often shared cases, happily accommodating each other’s heavy workloads, and you would often swing by each other’s chambers for fireside chats.

Your Honour’s interests away from the Bench involve family, including your son James, of whom you are immensely proud, the surf at Waratah Bay and also your myriad other interests, including your heavy commitment to the Bar, the Tax Institute, the Tax Bar Association, support for charities and teaching as a senior fellow at the University of Melbourne in highly popular classes in tax, litigation and statutory interpretation.

Your Honour will no doubt make an enormous contribution to the jurisprudence of the land.  On behalf of the Australian Bar Association and the independent Bars of Australia, I wish your Honour continuing distinction as a Justice of this Court.

May it please the Court.

FRENCH CJ:   Thank you, Ms McLeod.  Yes, Mr Peters.

MR PETERS:   May it please the Court.

The Victorian Bar takes great pride in congratulating your Honour on your appointment as a Justice of this Court.  You were an outstanding member of the Victorian Bar for over 15 years and you are a jurist of the highest quality, recognised internationally.  You are also a person whose nature and work ethic is best understood as one stamped with kindness, service to the community and a generosity of spirit.

Your Honour’s meteoric rise to silk, to a judge of the Federal Court, and now to this Court, exemplifies your extraordinary ability, in particular, the ability to turn complex and unfathomable problems into manageable and short fundamental propositions. 

At the Bar you were an outstanding contributor, especially to the readers course, the Ethics Committee and the Bar’s Continuing Legal Education program.  It is no surprise that the excellence of the Victorian Bar CLE program was attended by and witnessed and performed by your Honour, with others, as a founding member in 2002, and as the Chairman of that Committee after 2005.

Can I say something about the quality of your Honour’s judgments, which are all well recognised?  Your industry and drive has contributed to the reduction in cases awaiting judgment in Victoria, but each decision has been attended with a meticulous treatment of the facts and a deep understanding of the law.  Whilst litigants in your Honour’s court know that their arguments have been heard, your Honour is always conscious of the effect of your Honour’s decisions on those litigants who follow.

In an era of Australia’s engagement with Asia, it is a testament to your Honour that the Court of Appeal in Singapore, when following your Honour’s decision in Telstra Corporation Limited v Phone Directories Company Pty Ltd, described it as masterful. 

Can I say something about your Honour personally?  You have always found time for kindness and empathy.  Little is known of your Honour’s role in Victoria in a private workshop which focuses on increasing the representation of women barristers in commercial litigation.  Your Honour, together with Susan Crennan QC, and others, chose to promote this issue vigorously without seeking publicity or credit, as is your Honour’s style.  It is an example of your Honour inspiring others through your judicial role, but working quietly behind the scenes to support women and change the attitudes that affect their careers.

You have often said that Brian Shaw QC was a huge influence on your career.  Shaw QC appeared in over 80 reported cases in this Court.  He combined intellectual rigour with practical commonsense, as does your Honour, but in one of Shaw’s last cases, your Honour ascertained that he had never received a red bag as a junior.  You purchased a red bag, champagne, canapés and then arranged to meet Shaw QC on a Friday afternoon.  An impromptu party arose and the presentation of the red bag to Shaw QC by Ken Hayne QC, formerly of this Court, touched him deeply.

Your Honour has been a champion of the Victorian Bar’s Indigenous Lawyers program for indigenous law students from around Australia.  This program has had a profound effect.  It is not only educative, but it is also inspirational.  For example, one of the recipients is now off to Columbia University in New York to study for an LLM and another recently returned from the University of London with an LLM.

Your contributions to the community, as well as the law have been outstanding.  On behalf of the Victorian Bar I wish you every satisfaction in what will undoubtedly be outstanding and distinguished service as a Justice of this Court.

May it please the Court.

FRENCH CJ:   Thank you, Mr Peters.  Justice Gordon.

GORDON J:   Your Honours, distinguished guests, ladies and gentlemen.

The Court is honoured today, as I am, by the presence of former Chief Justices and Justices of the High Court of Australia, the Chief Justice of New Zealand, Chief Justices of a number of the States and Territories, a former Chief Justice of the Federal Court, Judges and former Judges of the Federal Court and of the Family Court, the President of the Victorian Court of Appeal, Judges of the Supreme Court of Victoria and of the Australian Capital Territory, the Solicitor‑General for the Commonwealth, Solicitors‑General of a number of the other States and Territories, the President of the Law Council of Australia and representatives of many of the Bar Associations and Law Societies.  I am honoured, too, by the presence of the Attorney‑General of the Commonwealth, Mr Brandis of Queens Counsel, and the Commonwealth Shadow Attorney‑General, Mr Dreyfus of Queens Counsel. 

May I thank each of you, Mr Attorney, Mr McConnel, Ms McLeod and Mr Peters for the very generous things you have said.  Mr McConnel, Ms McLeod and Mr Peters, I hope your insurance is up to date and extends to actions for misleading or deceptive statements.  You will need it.  Mr Attorney, I can offer you no such advice, just my thanks.

As you have heard, I have been privileged to be a solicitor at two firms on the opposite sides of this country, a barrister, a law teacher, a trial judge and an appellate judge and, at times, I have worn more than one of those hats.  Each role has played a significant part in contributing to where I now find myself.  But there is one role that has permeated every aspect of my legal career – that of student.  H.L. Mencken, the American satirist and scholar of American English, if there is such a thing, once described a judge as a law student that marks their own papers.  He was right.  Judges are students of the law.  We never stop learning and the more we learn, the more we realise how little we know.  That is certainly how I feel.

But enough about me.  The focus should shift immediately.  Why?  Because the credit for most, if not all, of what I have achieved is due to others. 

As you have heard, I  was fortunate to read in the chambers of Geoffrey Nettle (now Justice Nettle of the High Court of Australia) and then with Nemeer Mukhtar, now Associate Justice of the Supreme Court of Victoria.  It was a great time of great learning.  I doubt that the opportunities that were extended to me by them, and by so many at the Victorian Bar, were possible at any other independent Bar in Australia.  I was so very fortunate.  To them, to the members of the 14th Floor of Owen Dixon West with whom I shared chambers for over 15 years, to the late Brian Shaw QC, and so many others, thank you.

My time on the Federal Court was marked by three Chief Justices (Chief Justice Black, Chief Justice Keane and Chief Justice Allsop) and the retirement and subsequent appointment of 28 judges.  To say it was, and is, a dynamic court is an understatement.  Each Chief Justice supported me in my endeavours and I thank them for their strong leadership.  The Federal Court had, and continues to have, a collection of judges marked by intellectual rigour, innovation and excellence.  It would be inappropriate to individually name the past and present judges that unstintingly encouraged and supported me over the last eight years.  They are found across Australia.  I pay tribute to them and thank them.

As you have heard, there is one particular aspect of the Federal Court that I will miss - the privilege of being part of the indigenous law students program conducted by the Victorian Bar, the Supreme Court of Victoria and the Federal Court in Victoria.  It is a significant program which seeks to address one aspect of indigenous disadvantage.  The joy of dealing with students who come into chambers unsure of whether they have done the right thing in undertaking law studies and then seeing them blossom, as so many of them have, into people who are now, and will become, leaders of the Australian community has been a tremendous learning experience for me and a great privilege. 

I am delighted that so many of my family and friends were able to attend today.  Some have travelled a considerable distance and it means a great deal to me. 

My parents provided me with the love and support necessary to enable me to seek to achieve more than I could have ever hoped for, and did so at great personal cost.  I am delighted that my mother is here to share in this moment and I know that my father is looking down smiling. 

The two men in my life - my husband and my son - deserve special mention.  They love and support me unconditionally and unreservedly.  They sustain me.  And they certainly keep me grounded.  Upon my appointment to the Federal Court, I said that no other partner or child would have tolerated the demands I had placed and would continue to place on each of them.  Today – all I can say is sforzando – the musical term for “the same with a forcingly sudden emphasis”.  I am blessed to have such wonderful family and friends. 

This is not the time or place to comment on the work of the High Court or the work of the courts more generally.  But it is not possible to serve as a trial judge without recognising that the legal system is facing great challenges in providing appropriate mechanisms for the resolution of civil disputes.  People in dispute want certainty.  Early identification of their risk, certainty about cost, certainty about when they will get a result and certainty that the result will be according to law.  Parties are willing to forgo, what in the past, would have been seen and perceived as essential steps in litigation – including full disclosure, unlimited hearings on unlimited material, an oral hearing, even a right of appeal – if they are able to assess their risk early and get an outcome quickly, both at a cost that is not prohibitive.  Parties are willing to embrace judicial determination of a disputed issue by mechanisms and processes never before contemplated. 

Trial courts and the Australian legal profession not only face these challenges now, they have a responsibility to meet these challenges now. 

And meeting these challenges matters.  It matters because unless the challenges are faced and met, the courts risk being sidelined.  If that happens, the legal system loses transparency and the development of the rule of law risks being stifled.  And in the end, the system of government is damaged.  In 2015, what is driving reform is not only the recognition that a relevant vibrant legal system is an essential part of a strong democratic society but also the recognition that unless courts, and the profession, change the way disputes are resolved, there may be little left to reform. 

I take this appointment knowing that the work that is done in this Court, and the other Courts of Australia, is important.  I acknowledge and accept that appointment to the High Court involves extraordinary responsibilities and significant challenges.  The nature, and extent, of the work of the High Court, and the role of the Court in the maintenance of the rule of law, ensures that to be so.  It follows, of course, that it is important that the work is done well.  I will work hard to do my very best to discharge my judicial responsibilities in accordance with the oath of judicial office.  Only time will tell whether that is sufficient to justify the faith that has been placed in me.  But I do so in the knowledge that I have the support of the profession, my family and my friends and, in particular, the support of those who have attended today.  To each of you – thank you for your attendance today.  Not only do you honour me but, more importantly, you honour this Court. 

Your Honours, ladies and gentlemen, thank you all.

FRENCH CJ:   The Court will now adjourn until 10.15 am tomorrow morning.

AT 2.56 PM THE MATTER WAS CONCLUDED