Ceremonial - Welcome to Gordon J - Melbourne

[2015] HCATrans 237

[2015] HCATrans 237

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

SPECIAL SITTING

WELCOME TO

THE HONOURABLE JUSTICE MICHELLE GORDON

AT

MELBOURNE

ON

FRIDAY, 11 SEPTEMBER 2015, AT 9.14 AM

GORDON J

Speakers:

Mr J.W.S. Peters QC, President of the Victorian Bar

Ms K. Miller, President of the Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

GORDON J:   Mr Peters.

MS J.W.S. PETERS, QC:   May it please the Court.

It is a matter of great pride for the Victorian Bar that one of its outstanding members has been appointed to this Court.  I say outstanding because on any view your Honour’s contribution to the Victorian Bar, to the law of the Commonwealth (as a Judge of the Federal Court), to judicial reforms and to the wider community has been exceptional. 

Your Honour’s sense of public duty was acknowledged by the Commonwealth Attorney‑General in Canberra at your swearing‑in in June.  The Attorney noted that your Honour was appointed to the Federal Court after only 14 years at the Bar.  He said that it was “so early in such a promising career”, especially as you had been an immediate success in your three and a half years as senior counsel.  The Attorney rightly referred to your decision to accept appointment as “a sacrifice as well as an honour”. 

Your excellence as a jurist was on display from the moment you took office in the Federal Court.  By way of illustration, your Honour’s decisions in tax law have been affirmed by this Court on a number of occasions, including the cases of Spriggs v Commissioner of Taxation; Riddell v Commissioner of Taxation and Commissioner of Taxation v BHP Billiton Limited. 

It is also important for this country, in this era of engagement with Asia, that the Singapore Court of Appeal followed your Honour’s copyright decision in Telstra Corporation Limited v Phone Directories Company Pty Ltd.  The Court of Appeal of Singapore described your Honour’s synthesis of the law of copyright regarding originality and authorship as “masterful”.

You have also been a leading Judge in the area of competition and consumer law and it is not surprising that your Honour has written extra judicially on various matters.  For example, your Honour’s thorough and detailed analysis of the complexity and perils in the conduct of criminal proceedings for cartel conduct was evident in your paper “Can commercial competition litigators become criminal defence lawyers?” 

When writing about judicial reform, your Honour said:

The administration of justice does not exist in a vacuum . . . The law is dynamic.  Its administration must reflect that dynamism, or it will risk descent into arbitrary and ignorant application.  Only through the acceptance . . . of change . . . can it remain relevant and responsive to the needs of those it is intended to aid.

Dynamism is one of your hallmarks.  Your Honour was instrumental in the introduction of the Tax Practice Note.  Before the change, tax cases took 10 months from filing to disposition.  In the year after, more than two‑thirds of tax cases had an average disposition period of four months, and those that went to final hearing and judgment, a period of six months. 

Now, all who know your Honour know the importance of being direct and to the point with you.  Time is a precious commodity in your Honour’s Court, but there are those who can slow things down imperceptibly, if only for a moment. 

Philip Crutchfield, QC, was appearing before your Honour in a competition matter involving a large supermarket chain.  The chain contended that it baked bread freshly in store.  The ACCC took them to task, given that the bread was baked in Ireland – pre‑baked, frozen, sent to Melbourne and then defrosted and re‑baked in store.  When questioning at one stage of the hearing the likely penalty that could be imposed, Mr Crutchfield boldly submitted to your Honour, “the ACCC knows that there is no dough in this case”.

Now, in another case involving the digital revolution in the movie world, a different side of your Honour’s talents was on show.  That was the Omnilab Case.  It was necessary to take evidence via video link from executives in the movie world in England and in Hollywood.  The executives from Burbank Studios dialled into your Honour’s court in Melbourne at 7.30 am where counsel and witnesses were assembled.  The scene in court was tense.  The relevant executive from Burbank occupied the whole video screen, but when giving evidence he seemed to continually look to his left and take direction.  It seemed that someone was talking to him.  Your Honour took charge of the set.  The transcript read something like this:

HER HONOUR:   Hollywood, Hollywood, pan left.  No, a little more.  Now, zoom out a little.  Close in on that person next to the witness.

HER HONOUR [addressing the person next to the witness]:   Who are you?

PERSON NEXT TO WITNESS:   I am the lawyer for the witness.

HER HONOUR:   Leave the set immediately – you have no role or right to be sitting there on my set.

Counsel rose and observed:

It is abundantly clear to all of us that your Honour could easily have had an entirely different career.

At the Victorian Bar you were precocious in taking silk after 11 years and appointed after only 14 and a half.  You contributed enormously to the fabric of our Bar – a founding member and later Chair of our Compulsory Legal Education Committee and in a host of other ways.  One example is this year’s Bar dinner.  Your Honour gave one of the finest speeches we have had at our Bar dinner in many a long year, all impeccably delivered without any notes.

One special contribution which deserves mention is your Honour’s tireless support of the indigenous lawyers’ activities.  Your Honour was, for the whole of your time on the Federal Court, the Federal Court Consultant on the Bar Indigenous Lawyers Committee and co‑ordinated the indigenous law students paid clerkship week at the Federal Court. 

As an academic, in addition to your published papers, you taught at the University of Melbourne.  Since 1999, your Honour has taught as a Senior Fellow in the Law School in the Master’s Program in the wildly popular “Statutes in the 21st Century” which you teach with now retired Justice Kenneth Hayne, AC, QC.

Your Honour has been an outstanding member of our Bar.  You are a jurist of the highest quality recognised internationally and also a person whose nature and work ethic is best understood as one stamped with kindness, service to the community and generosity of spirit. 

On behalf of the Victorian Bar I wish your Honour every satisfaction in what will undoubtedly be outstanding and distinguished service as a member of this Court. 

If the Court pleases.

GORDON J:   Thank you, Mr Peters.  Ms Miller.

MS K. MILLER:   May it please the Court. 

I appear on behalf of the Law Institute of Victoria and the solicitors of this State to congratulate your Honour on your appointment to this Court. 

Although I attended your Honour’s swearing‑in and welcome in Canberra in June, I am delighted and grateful to the Court for this local welcome.  As was observed by your predecessor, attendance at these welcomes honours the individual Judge and the Court as a whole, but there is work to be done and it is the Court and the work that it does that is important.  These local welcomes allow those whose work prevented them from attending the occasion in Canberra to extend their respects to your Honour and this honourable Court. 

The need for a Melbourne welcome is particularly important because the local profession seeks to claim you as one of ours at every opportunity and thereby defeat the claims of our colleagues in Western Australia who claim you as one of theirs. 

It is well known that your Honour spent the early years of your life and legal career in Western Australia, completing Bachelors of Jurisprudence and Laws at the University of Western Australia.  Your Honour was enrolled as a full‑time student – hardly unusual.  What was less usual for the time, and an early indicator of your Honour’s prodigious capacity for work, was that, during your entire course, your Honour worked one or two days a week at Robinson Cox, which is now part of Clayton Utz.  At your Honour’s welcome in Perth last month, you indicated that you suspect that you learned more in your working days at Robinson Cox than you did in your days at law school.

Your Honour also worked at Robinson Cox as a summer clerk and then as an articled clerk to Mark Bahen, a commercial law partner.  Each article clerk at Robinson Cox had to run a debt action and to appear at the Local Court hearing of the matter.  Your Honour embraced these opportunities for advocacy, again, an early indicator of the future direction of your career. 

Less than a year after your admission, your Honour moved to Melbourne and Arthur Robinson & Hedderwicks, now Allens Linklaters.  You were responsible for the Occidental/Regal/Bank of Melbourne Case, which consumed your capacity for two intense years. 

In July 1992, just four and a half years after admission, you were made a senior associate, a remarkable advancement in a major city firm.  In September 1992, you began the Victorian Bar Readers Course and your reading with Geoffrey Nettle, (now your Honour’s judicial colleague, Justice Nettle).

Your Honour’s instructing solicitors in your years at the Bar appreciated, respected and marvelled at the extraordinary quality and thoroughness of your work as counsel and then senior counsel and enjoyed the way in which you worked with them and their staff.  Your Honour’s high capacity to complete demanding and challenging work with the utmost efficiency was evident to all in your work at the Federal Court.  Your Honour was fair, direct and incisive in identifying the issues relevant to the matter before you.

Your Honour is also a leader in developing the skills of the profession.  Your Honour’s reputation for the highest quality work, detailed preparation and efficient, concise submissions inspires those who appear before you to emulate your Honour’s approach.  Just as your Honour learnt more from Robinson Cox than law school, so too have lawyers learnt more from brief appearances before you than weeks or years of formal education.  I speak from personal experience.  I only had the privilege of appearing before your Honour once.  I do not expect your Honour to remember it – it was merely an interlocutory hearing in a judicial review matter.  However, I remember it clearly.

Knowing your Honour’s reputation for efficiency, I prepared for that interlocutory hearing like it was a final hearing in this Court, seeking to anticipate every possible question that your Honour may ask.  It was, consequently, one of the best appearances in my short career and, because of the respectful approach of your Honour to those who appear before you, it was also an enjoyable one, although I only recognised that after the event.

On behalf of the Law Institute of Victoria and the solicitors of this State, I congratulate your Honour on your appointment to this Court.  I wish you joy in the appointment and long, satisfying and distinguished service as a Justice of this Court.

May it please the Court.

GORDON J:   Thank you.

First, thank you, Mr Peters and Ms Miller, for your very kind remarks and far too generous and, in some instances, creative, observations. 

I am honoured today by the presence in Court of the Chief Justice of the Supreme Court of Victoria and the President of the Court of Appeal of the Supreme Court of Victoria, and a number of other judges and retired judges.  It is a great honour and privilege to be welcomed by the Melbourne profession.

Some years ago, I was told by a then sitting member of the High Court – not from Melbourne – that he did not think it would be possible for a woman to have my kind of practice anywhere else in Australia.  I suspect he was right.  It says a lot about the profession in this State, a profession that over the last 27 years has not only accommodated me but enabled me to grow and develop; a profession that extended opportunities to me which were at times beyond my experience and I suspect my abilities; a profession that did not see my age, my gender or any other trait or characteristic as defining or limiting me.  Without the support of the legal profession in this State I would not be sitting here today as a Justice of the High Court of Australia.  For that and so much more, I am forever grateful. 

Your Honours, ladies and gentlemen, thank you all for your attendance here this morning and for welcoming me in the way that you have.  Not only do you honour me but, more importantly, you honour this Court. 

The Court will now adjourn to be reconstituted.

AT 9.27 AM SHORT ADJOURNMENT