Federal Court of Australia
Ceremonial Sitting of the Full Court to Farewell the Honourable Justice Goldberg AO
PRESIDING JUDGES:
THE HONOURABLE PATRICK KEANE, CHIEF JUSTICE
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE RYAN
THE HONOURABLE JUSTICE FINN
THE HONOURABLE JUSTICE SUNDBERG
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE GOLDBERG AO
THE HONOURABLE JUSTICE FINKELSTEIN
THE HONOURABLE JUSTICE GIUDICE AO
THE HONOURABLE JUSTICE JESSUP
THE HONOURABLE JUSTICE TRACEY RFD
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE DODDS-STREETON
GUEST ON THE BENCH:
THE HONOURABLE MICHAEL BLACK AC QC
MELBOURNE
9.30 AM, WEDNESDAY, 30 JUNE 2010
KEANE CJ: Colleagues, ladies and gentlemen, on 4 July this year Justice Alan Goldberg, AO will retire from office. We are gathered
today to mark the significant day in the life of the court, and Justice Goldberg. The court is especially honoured by the presence
of many distinguished guests who have come to mark this occasion. The court recognises, particularly, the Right Honourable, Sir
Zelman Cowen, the former Governor-General of Australia; the Honourable Susan Crennan of the High Court of Australia; the Honourable
Sir Daryl Dawson, former Justice of the High Court of Australia; and Judges of the Supreme and County Court of Victoria.
It is particularly pleasing that we are joined on the bench today by the Honourable Michael Black, AC QC, under whose Chief Justice-ship
Justice Goldberg served all but three months of his time on this court. Justice Goldberg has been a judge of this court since 3
February 1997. When Justice Goldberg was appointed to this court, the Victorian Bar news said:
The Federal Court is fortunate to have Justice Goldberg adorn its bench. The Bar is enormously gratified at the elevation of one
of its universally popular and best loved judges. The Australian legal world, and the community as a whole, is enriched by the
opportunity for his Honour to apply his great energy, his generous heart, and his superb legal talents in its service as a member
of the Federal judiciary.
And so it proved to be. During the last thirteen and a half years Justice Goldberg has been a most distinguished judge of this Court.
His service included serving as the President of the Competition Tribunal and establishing the central role of that tribunal in
the commercial life of the nation.
If I might speak as a head of jurisdiction for a moment, the sobering reality of this occasion is that Justice Goldberg’s
culmination of legal learning, energy, imaginative insight, sense of duty, wisdom and fundamental decency is such that I teeter
on the edge of despair at the thought of the difficulty of finding a replacement. This combination of qualities is such as to make
him, I fear, virtually irreplaceable.
If I might speak as a former barrister for a moment, I can say that appearing before his Honour was a pleasure. On occasions like
this it is usual for those who speak for the profession to say of the retiring judge that he was “unfailingly courteous”
in his dealings with the Bar and with solicitors. Today that observation would actually be true. Appearing against his Honour was
not quite such a pleasure.
In 1988 I appeared in the High Court as junior to Mr Murray Gleeson QC, as the former Chief Justice of Australia then was, in the
great case of Queensland Wire v BHP. That was the case concerning the anti-monopoly provisions of the Trade Practices Act. Mr Gleeson
QC and I were for BHP. The arguments advanced by Queensland Wire had not troubled us. We had won at trial, and three nil on the
appeal to the Federal Court. We lost resoundingly in the High Court.
Mr Goldberg QC appeared on behalf of the Trade Practices Commission, as it then was, which intervened in the High Court on the side
of Queensland Wire Industries. Mr Goldberg QC won the case with brief, elegant, and quietly persuasive, almost imperceptible, submissions
that left us feeling as people must feel when their pockets have been picked by an expert. It was the only occasion in my career
that I saw a case in the High Court won by counsel for an intervener. I cannot say that I enjoyed the experience. It’s fair
to say that Mr Gleeson QC didn’t enjoy it either.
Ultimately I came to appreciate that Goldberg QC was a brilliant lawyer whose distinct preference, in terms of style, was to dismantle
the other side’s case quietly, politely and without unnecessary unpleasantness, and that this was a most effective form of
advocacy. As a member of this court, he has contributed mightily as a brilliant lawyer and the court’s jurisprudence is much
richer by reason of his contribution.
He has been a model of judicial conduct. He has also been a dedicated and selfless colleague. All the judges of this Court are in
his debt for his active and inspired representation of the Court over many years in the Remuneration Tribunal. He has also been
a kind, but effective, mentor to other judges of the court. He is a universally respected and, if I may say so, a universally loved
member of the court.
On behalf of every member of the court, I wish Justice Goldberg and his wife, Rachel, a very happy and well-earned retirement.
Mr Solicitor for the Commonwealth, do you move?
MR S. GAGELER SC: May it please the court. I acknowledge the traditional owners of the land on which we meet, and I honour their
elders, past and present.
As the Chief Justice has mentioned, it was on 3 February 1997, in another equally crowded courtroom in Melbourne filled to overflowing,
that your Honour, Justice Alan Goldberg was sworn in as a judge of this Court. Your Honour had then been a barrister for over 30
years, a Queen’s Counsel for nearly 20, and your Honour was leaving behind a large and lucrative practice as one of the most
sought after commercial and corporate advisers and advocates in the country.
Welcoming your Honour on that day was my predecessor, Dr Gavin Griffith QC. He was about the same age as your Honour then was with
about the same longevity at the Bar. He opined that your Honour was then “beautifully matured and ready to be enjoyed by
the consumers of judicial services.” As someone who has acted as the agent of quite a number of consumers of judicial services
on a number of significant occasions over the last thirteen and a half years that your Honour has performed the role of a provider
of judicial services, I can only attest to the soundness of my predecessor’s judgment.
Your Honour is, and always has been, as a judge, calm, dignified, generous, tolerant, understanding, respectful, insightful, good
humoured and humane. Now, my reference to your Honour’s calmness must, unfortunately, be qualified. I do not know, I was
not there, there is much speculation, and the truth may never be known; yet it is rumoured that on one occasion, for just a moment,
your Honour may have almost gone close to losing your temper. What remains the subject of controversy is whether your Honour actually
threw down the fountain pen, or merely dropped it. But what must be taken to be established by the reliable testimony of a number
of witnesses is that your Honour definitely frowned.
Your Honour’s unfailing courtesy to litigants, to witnesses and to counsel is widely known, has been mentioned by the Chief
Justice, and is justly acclaimed. You have always done the hard work. You have never shirked the hard issues. Yet you’ve
always managed to ease the tension of litigation, often using humour; always mild, and at nobody’s expense, and most often
of a self-deprecating nature.
You have given, your Honour, all of the participants in the litigious process a sense of having been heard. But, above all, your
Honour has for the past 13 years displayed that most prized of judicial attributes that only comes with the maturity of which my
predecessor spoke, and that attribute is wisdom.
Indeed, that attribute was volunteered by a member of the staff of the Court who has observed your Honour for many years, and who
was recently asked a non-leading question requesting a written description of your Honour’s judicial style. She responded
by email in direct and emphatic terms that we have all learned, from the process of discovery, is characteristic of that medium
of communication. She used the term “wisdom” but she added an adjective and she put the combination in bold italics:
The words I have often used to sum up Justice Goldberg –
the staff member said –
is infinite wisdom in his dealing with issues and in his interaction with people.
In the absence of the Attorney-General, it is for me a great privilege to represent the Australian Government at this special sitting
of the Court; to be able to survey your Honour’s long and distinguished career; to pay tribute to your Honour’s work
as a judge of the Federal Court; and, no less importantly, to pay tribute to your Honour’s work as a Deputy President and
then as President of the Australian Competition Tribunal.
Your Honour was born here in Melbourne, and schooled at Scotch College where you excelled, particularly in Latin. Your passion for
language that you learned, that began at Scotch College, lives on. Your Honour, I am told, is still not beyond the occasional grammar
joke and has, from time to time, been spotted sporting a T-shirt saying “Try to never split an infinitive.
In 1958 you commenced your studies in law at the University of Melbourne. There you immersed yourself in university life, competing
in inter-varsity moots, editing the Melbourne University Law Review, and serving in the university air squadron where you managed
to hold the rank of Pilot Officer without ever actually flying.
Graduating with Honours in 1962, you completed your articles at Darvall & Hambleton Solicitors in 1963, and were admitted to
practise in the same year. Still in 1963 your Honour gained entry to the Yale Law School Graduate Program and was awarded a Fulbright
travel fellowship and scholarship to Yale. Your Honour went off to spend a year in the United States: a year of tumult that saw
the assassination of President Kennedy, mounting troubles in Vietnam, Martin Luther King and his followers marching on Washington,
and the delivery of the “I have a dream” speech.
Your Master of Laws completed, you returned to Australia the following year keen to get on with your legal career. Much later you
described your decision to return to Australia in an oral history that was recorded by Ruth Campbell and that is now housed with
the National Library of Australia. The transcript of your Honour’s words reads as follows:
Early in 1964 I heard that my friend, Michael Black, had gone to the Bar. Gavin Griffith had gone to the Bar, and he was a year
behind me; Doug Graham had gone to the Bar; John Larkins had gone to the Bar, and I thought the world was passing me by.
Your Honour was 24 years of age at the time. Your Honour need not have worried, you caught up soon enough. In 1965, after working
as a solicitor with Alexander Grant, Dickson & King, Solicitors, for just under a year, your Honour commenced practise as a
barrister reading in the chambers of a young barrister named Daryl Dawson. Sir Daryl Dawson is present today, no doubt well-pleased
with his pupil.
Before and after your Honour took silk in 1978, your Honour had a huge and enviable national practice. In more than 30 years at
the Bar your Honour practised widely in equity, commercial, corporate and trade practice law. Yet it is a measure of your Honour’s
moral framework that when asked, soon after your appointment to this court, to record your most memorable cases, your Honour mentioned
just two.
One was the Chook Raffle case in the Court of Disputed Returns in relation to the 1985 tied election in Nunawading. It was memorable,
you said, because of the significance of the case. It was not about money or commerce, but involved representative government.
The other case that your Honour mentioned at that time was another forgotten case just a few years later when you were acting for
the defendant in defamation proceedings in the Supreme Court. You were cross-examining a blind woman when her guide dog collapsed.
There was an adjournment while the dog was revived and the case continued. Your Honour recalled, with uncharacteristic pride, that
you were later complimented on your conspicuous kindness to the dog.
The last 14 years at the Bar your Honour spent in Aickin Chambers in the company of friends who were later to become your colleagues
on the Court: Ron Merkel, Ray Finkelstein and John Middleton, all of whom I believe are here today in varying capacities.
The year after you were appointed to the Court, 1998, your Honour was appointed Deputy President of the Australian Competition Tribunal,
and that appointment was followed in 2003 by a five-year appointment as President of that Tribunal. The significance of the work
that is done by the Australian Competition Tribunal is not widely understood and should not be under-estimated. The volume of the
evidence, the complexity of the legal, technical and economic issues, and the amounts at stake often dwarf anything to be seen
in ordinary commercial litigation.
The open texture of the subject matter means that the tribunal is often breaking new grounds. In doing so, the tribunal balances
a range of public and private interests, always with an eye to fostering a regulatory environment that remains, so far as possible,
stable, predictable and workable. Particularly in the five-year term that your Honour served as President, your Honour served with
the greatest of distinction on that tribunal bringing wisdom, providing strong leadership, engaging in rigorous analysis, reflected
in carefully crafted reasons for decision, setting clear substantive directions, and developing innovative procedures, especially
for the handling of expert evidence.
But your Honour is not all work or, at least, not all legal work. Throughout the years you have been active in the support of the
Jewish community, generously giving your time to foundations, boards, councils, commissions, schools and festivals. Perhaps one
of the positions that you have been most proud to hold is that of President of the Melbourne Hebrew Congregation; not only because
it is the oldest Jewish congregation in Victoria, but because your Honour’s great-great-grandfather was the first President
of that congregation.
Your enthusiasm for the arts is reflected in your long association with the Melbourne Symphony Orchestra, and in your involvement
with the Tarrawarra Museum of Modern Art. Many others have benefited from your Honour’s benevolence. The Alan Missen Foundation,
the Uluru Children’s Home, the Menzies School of Health Research, the Victorian Arts Centre Trust to name just a few.
Your commitment to the law and your involvement with the arts saw you honoured in 2005 by being made an Officer of the Order of
Australia. The citation read, and I quote:
For service to the judiciary, particularly in the areas of competition law and equity, and to the community as a contributor to
debate on human rights and civil liberties, and as a supporter of the arts.
It might seem that in retirement from the court your Honour would be deserving some time off. However, I understand that your retirement,
like that of your friend Ron Merkel, may well be brief. We may see you as Citizen Goldberg launching into a new stage of your career
in mediation and arbitration. If that is where you might be headed, then your future clients will be, and the community at large
will remain, the beneficiaries. We can be confident that your Honour, as a citizen, will not be forgetting the justice bit.
Your Honour, on behalf of the Australian Government and the Australian people, I thank you for your valuable service to this Court
and extend to you my sincere best wishes in your retirement.
KEANE CJ: Thank you, Mr Solicitor. Mr Colbran, do you move?
MR M. COLBRAN QC: May it please the court. I appear on behalf of the Law Council of Australia and the Victorian Bar. The President
of the Law Council, Glenn Ferguson, is unable to be here today and has asked me to pass on his apologies and his best wishes. I
am delighted to speak on behalf of the Law Council, and its constituent bodies, every Australian law society and Bar association,
and the large law firm group. I am also honoured to speak on behalf of the Victorian Bar of which your Honour has been a member,
as a barrister and a judge, for the best part of 45 years.
Your Honour has frequently said that the strength of our Bar is our system of reading and learning by example. As we have heard,
your Honour read with Daryl Dawson, later Sir Daryl Dawson of the High Court. You were one of his Honour’s 11 readers and
you, yourself, had 11 readers, although through your Master, your readers traced their Bar lineage back to Sir Owen Dixon. Sir
Daryl read with Tony Murray, former Victorian Solicitor-General and Supreme Court judge who read with Reg Sholl, later a Supreme
Court judge, who read with Harry Walker, who read with Owen Dixon.
Your Honour’s immediate influence extended to many others; not only to your readers and those who worked with you as your
juniors, but also with all who sought your Honour’s advice and assistance in the open door collegiality of the Bar. You have
said that what was exciting about the Bar in your early days was, first of all, that very camaraderie; that everyone’s door
was open to you.
During your Honour’s reading on the 8th floor of Owen Dixon Chambers you had the benefit of mixing with and learning from
others on the floor: people like Jim Gobbo, Ted Woodward, Norman O’Bryan, Haddon Storey and Frank Costigan. You have recounted
that you remember walking into Keith Aickin’s chambers when you’d been at the Bar only a couple of years and introducing
yourself, in the convention of the times, “Hello, Aickin, I’m Goldberg. I wonder if you could help me.” Keith
Aickin, later Sir Keith of the High Court, did; and so, later, generously and unstintingly, did your Honour to the many members
of counsel who came to your open door.
The community of the Bar was important to you, as the establishment of your floor in the chambers named after Sir Keith Aickin demonstrated.
That set of chambers became a magnet for all needing assistance in relation to any problem.
Your Honour served the Bar, and the profession as the Bar’s representative, on the Victorian Council for Legal Education,
the Monash University Law Faculty Board, and the Victorian Supreme Court Board of Examiners. During your 12 years on the Council
of Legal Education your Honour took a particular responsibility for the articled clerks course at RMIT. You served on the committee
that supervised that course and taught introduction to legal method in the course for about 10 years. You were the foundation President
of the Commercial Bar Association of Victoria.
In addition to these appointments, your Honour was a tower of strength, working behind the scenes on the Bar’s responses to
the many competition theory-based government and law reform agency investigations and reviews of our independent Bar. Beyond the
Bar your Honour was an active member of the Trade Practices Committee of the Law Council, and regularly participated in the section’s
annual trade practices workshop. You were, for a decade, a member of the Australian Legal Education Council which supervised legal
education in all Australian States and Territories.
Mr Gageler has identified some of your Honour’s characteristic virtues. You were also always an innovator. You delighted in
being the first with the latest. It is said that your Honour was the first Victorian barrister with a fax machine, the first Victorian
barrister with a man bag, and the first Victorian barrister with a mobile phone; in those days one about the size of a large brick.
You were an innovator with a sense of humour. Inevitably your Honour’s new mobile phone went off in court. You were before
the Honourable, Justice Hedigan. Quick as a flash and before the judicial explosion you said, “It’s for you, your Honour.”
Your Honour was an outstanding advocate. You have been an outstanding judge. At your welcome you spoke of the mixed feelings that
all men and women appointed to the bench must surely experience: delight at the appointment, sadness at leaving the enjoyment of
professional life, and humility in the face of the responsibilities they are taking on. You then said:
But I should discount any reference to humility because I’m reminded of what Golda Meir said to Moshe Dayan, ‘Do not
be so humble, you are not that good.’
Your Honour, the capacity crowd at your welcome knew this and now, 13 years later at your farewell, on behalf of the Australian
profession and the Victorian Bar, I’m here to say it. Your Honour is and always was that good. On behalf of the Victorian
Bar and the Law Council of Australia, I wish your Honour and your wife, Rachel, a long and happy retirement from this court. May
it please the court.
KEANE CJ: Thank you, Mr Colbran. Mr Riordan, do you move?
MR P. RIORDAN SC: If the Court pleases. I appear on behalf of the Australian Bar Association. The Chief Justice, the Solicitor-General
and the Chairman have all spoken of your outstanding career in the law, your intellectual pursuits, all matters for which you are
rightly renowned. Inexplicably there’s been a lack of reference to your Honour’s sporting achievements, and I thought
I might try to fill that void.
Your Honour’s early childhood saw you faced with a number of physical ailments which, with what became your trademark determination,
you overcame to become not only one of the country’s most brilliant legal minds, but a keen sportsman. It was in the court
of a sporting kind at the South Judean Tennis Club that you first met the young Ron Merkel who was to become your life-long friend
and colleague in a court of a different kind.
In addition to being an impressive tennis player, you played squash for Ajax, until a knee injury in 1962 brought to an end what
your Honour described as “a brilliant sporting career.” The knee injury did not, however, dampen your enthusiasm for
cycling, a passion which has taken you to Mexico, Thailand, the Czech Republic and Hawaii, and saw you riding for many years on
a Sunday morning with Jack Fajgenbaum; Tom Bruce, the former Master of the Supreme Court; Peter Heerey, of course a former colleague
of your Honour’s on this court. Indeed, journalists who once came to the Goldberg home on a Sunday morning were greeted by
a middle-aged man dressed in a yellow lycra shirt and bike pants, claiming to be the esteemed silk, Alan Goldberg QC. Your Honour
was keen not to miss your morning ride on that morning.
Your Honour came to the Victorian Bar with a high Honours degree from the University of Melbourne, and a Master’s degree from
Yale, but you took nothing for granted when you came to the Bar. You worked at being a barrister. In the National Library oral
history interview that the Solicitor-General has referred to, asked what advice you would give a new barrister you said, “Not
to come to the Bar with the intention of only doing commercial law or appeals, or writing constitutional opinions.” You certainly
didn’t.
Your Honour spent at least three or four years in the Court of Petty Sessions, and you said “That’s where I learnt my
advocacy. You learn it by doing it; by observing those better than you and more experienced than you doing it.” In fact, before
your first criminal trial you told your clerk that you were taking several days off, not a move likely to endear yourself to Percy
Dever. You took the days off so that you could observe George Hampel run a criminal jury trial from start to finish. Your Honour
also did a lot of paperwork because people like Daryl Dawson, Jim Gobbo and Haddon Storey told you that advice work was the foundation
of a good practice.
In the early days at the Bar, in particular, your Honour did a lot of teaching. Your Honour, yourself, had been an under-graduate
student at Melbourne lectured by a number of practitioner independent lecturers: John Young on company law, Dick McGarvie in contracts,
and Murray McInerney in evidence. You also, in your turn, contributed to the next generation of law students and lawyers by teaching
and tutoring.
From 1985 your Honour taught at the Monash Law School and at Melbourne and at Newman College, as well as teaching articled clerks
at the course at the RMIT. Asked to teach a couple of terms of conflict of laws at Melbourne, your Honour remarked:
Having had the best teacher in the world in conflicts, Sir Zelman Cowen, I took that on.
You also taught that at RMIT. Your Honour was a member of the Victorian Council of Civil Liberties from 1990 to 1992, and president
from 1992 to 1994. As president, your Honour was actively engaged with the media whenever human rights or civil liberty issues
arose in Victoria. In particular, you were involved in raising concerns about police shootings, police use of capsicum spray; and
you successfully opposed the public registration of persons who were HIV positive.
Also during your presidency, the council obtained funding from the Education Department and from the Victorian Health Foundation
for education programs such as on issues of smoking, drug taking and bullying, and to alert Victorian teachers and students to
basic human and civil rights.
Over your time at the Bar your fees increased a little from the 12 guineas charged from your first brief at the Court of Petty Sessions.
With a broad practice in commercial, constitutional, administrative and trade practices, you developed advocacy skills which became
legend, and led to many great victories in court for which you have received due recognition and some of which have been mentioned
today.
One victory for which you may not have received such recognition is, of course, the Dollar Sweets case, a success for which your
junior in the case, a former treasurer of the Commonwealth, seems to have attracted more of the limelight.
Above all of your professional and sporting achievements, those who know you well say that you always put your family first. It
is said that many a night had been spent looking over school homework and university assignments before, and in some cases instead
of, turning to the pile of papers that always awaited you. In retirement you may look forward to doing it all again for your grandchildren.
On behalf of the Australian Bar Association, we congratulate you on your marvellous career on the bench, and wish you very well
for you and your wife, Rachel, on your retirement. If the Court pleases.
KEANE CJ: Thank you, Mr Riordan. Mr Stevens, President of the Law Institute of Victoria, do you move?
MR S. STEVENS: May it please the court. I appear on behalf of the Law Institute of Victoria and the solicitors of this state to
congratulate and thank your Honour for your outstanding service to the court, to the legal profession and to the community as a
judge of this court. As we have heard your Honour served articles with Darvall & Hambleton. That firm traces its origins back
to 1864. In 1982 it merged with W.B. & O. McCutcheon. Then in 1993 Darvall McCutcheon merged with Phillips Fox, now DLA Phillips
Fox. Your Honour’s principal in articles was J.M. (Mac) Hambleton.
You also worked with Peter Jordan and Peter Shattock, all first class solicitors from whom you learned much. This was long before
concerted action brought about what was termed wage justice for articled clerks. Your Honour was paid seven pounds a week in those
days.
Learning that your friends Ron Castan and Jack Fajgenbaum were each being paid ten pounds a week in their articles at Cleary, Ross
& Doherty and Maurice Cohen & Co respectively, your Honour asked Mr Hambleton for that amount. Mr Hambleton drew himself
up to the whole of his six foot four inch height and thundered: If you hadn’t been recommended to me by Zelman Cowen I would
have sacked you on the spot for this. Duly chastened you slunk back to your small cubicle and never raised the matter again.
Your Honour remained with Darvall & Hambleton for six or seven months after completion of your articles and admission to practice.
You then won scholarships and, as we’ve heard, went to Yale for graduate work. Your friends Castan and Fajgenbaum also had
Fullbright scholarships and also went to the United States: Ron Castan to Harvard and Jack Fajgenbaum to the University of Chicago.
Upon your return to Melbourne you didn’t do a lot better in salary negotiations with the solicitors branch of the profession.
Castan and your Honour were both under consideration for positions at a well known and prominent large city law firm in Melbourne.
Castan, who was married, asked for 30 pounds a week; they wouldn’t come at that. Your Honour wasn’t yet married and
shot for 20 pounds a week; they wouldn’t come at that either. Castan ended up going to a Sydney firm; your Honour ended up
at Alexander Grant, Dickson & King on 17 pounds a week for the first six months, 20 pounds a week for the second six months
and no commitment beyond that.
As we’ve heard your Honour then came to the Bar. In August 1978 at the point that your Honour had been at the Bar for some
13 years you had an offer to go to London to look after the London office of Ellison Hewison & Whitehead for six weeks. Remarkably
you got permission from the Bar to do that without leaving the Bar, albeit subject to some restrictions on the sort of work you
were permitted to undertake. Six weeks stretched out to six months and you didn’t return to Australia and the Bar until February
1979 and in the meantime you were, in November 1978, granted silk.
As a barrister your Honour said that the carriage of complex and difficult cases, of cases that involved large sums or were objectively
important, were significant. Cases which had a significant effect on the development of the law. As a judge your Honour decided
objectively important and significant cases.
However, your Honour’s answer to the question as to which of your cases were most important and significant has always been
the same, that each case as a barrister is the most important and significant to your client and that each case as a judge required
your utmost effort to decide fairly and justly between the parties to whom it was of prime importance and significance.
As the Commonwealth Solicitor-General has said, that answer and the two cases your Honour did identify as memorable are a measure
of your Honour’s moral framework. However, the Ansett Corporate Reconstruction cases your Honour heard on this court should
be mentioned. Your Honour disposed of some 20 applications in a period of about 12 months. Of particular note were your Honour’s
directions in relation to the Corporations Act section 439A requirement, that the administrator give written notice of a second
creditor’s meeting to all creditors. The cost in this case of sending the required notice, more significantly the cost of
sending the accompanying administrator’s report on the company’s business property affairs and financial circumstances,
would have been more than $26 million. Ansett had millions of creditors because of its global rewards scheme.
In a first in Australian voluntary administration law your Honour brought a practical commercial reality to bear. Your direction
relieved the administrators from giving the report to each creditor. Each was to get notice that the report was to be available
on a hotline and website. This saved some $23 million. Your Honour’s conduct of those cases attracted international attention
and was hailed as world’s best practice. In 2007 the Corporations Act was amended specifically to provide for notice to creditors
by electronic means. The amendment is known as the Goldberg Ansett amendment.
It constituted world’s best practice in the speed with which your Honour made and delivered decisions and in your Honour’s
practical and pragmatic application of the statutes and principles in the authorities.
Your Honour had significant experience as a solicitor and understood the work of solicitors. Our solicitors found your Honour thorough,
courteous, practical and prompt as a barrister and additionally practical, fair and wise as a judge.
Your Honour is an extraordinary listener, relentlessly curious and possessed, as the learned Solicitor-General has said, of that
most prized of judicial attributes that comes only with maturity, and that is wisdom.
On behalf of the Law Institute of Victoria and the solicitors of this state I wish your Honour and your wife Rachel a long and happy
retirement from this Court. May it please the Court.
KEANE CJ: Thank you, Mr Stevens. Justice Goldberg.
GOLDBERG J: Thank you, Chief Justice, for your most generous words. Mr Solicitor, Mr Colbran, Mr Riordan and Mr Stevens, thank you
also for your most gracious and well-researched observations. I was very apprehensive as to what I might have heard but I think
I will give you a tick of 98 per cent for accuracy. I am not going to say I’m humbled for two reasons. One reason is the
observation that Golda Meir made to Moshe Dayan. But the second one is, I was concerned about the use of the word “humble”
and I looked it up in the Macquarie Dictionary and it defined humble, amongst other meanings, as “low in height”. I’ve
always wanted to be six foot tall like Bill Gillard so I decided I wouldn’t use that expression.
I should say immediately that about 35 minutes ago what I hope will be my last nightmare was finally dispelled. When I was sworn
in on 3 February in the presence of so many members of the judiciary, the profession, family, friends and colleagues, I said that
my nightmare had not been realised. That nightmare was: what would happen if no one came to my welcome. And it was a recurrent
nightmare. After I tendered my resignation to Her Excellency the Governor-General, I was offered a farewell sitting of the Court
by the then Chief Justice, my very old friend Michael Black, who joins us on the bench this morning, and the recurrent nightmare
re-emerged: what happens if no one turns up to my farewell.
Now I can understand people coming to a welcome because they have expectations, but what if their expectations haven’t been
realised? I was assured that at least my family would turn up. But what you don’t realise is that my nightmare came true and
it came true yesterday. For reasons which still remain obscure, and I might say not due to any default on the part of court officers,
the law list in yesterday’s Age newspaper listed the farewell sitting of the court for me for 9.30 am yesterday. No one turned
up. Least of all me. Obviously my nightmare has now not been realised and I must say that I am honoured and I am really quite overwhelmed
by the presence of so many members of the profession, my friends and my colleagues this morning.
I must thank you all for making the time available to be present at this farewell, especially as this is the last day of the financial
year. I am particularly honoured by the presence of former Governor-General Sir Zelman Cowen and Lady Cowen. Sir Zelman was a mentor
and teacher of so many members of the judiciary throughout Australia over past generations. I am also honoured by the presence of
former High Court Justice Sir Daryl Dawson. I first met Sir Daryl over 52 years ago when he tutored me and others at Ormond College,
and as has been noted later, I read with him. Sir Daryl has been a role model for me over those 52 years.
I am also honoured by the presence in court this morning of other judicial colleagues: Justice Crennan of the High Court, Justices
of the Family Court, Justices of the Victorian Court of Appeal, Justices of the Victorian Supreme Court, Associate Judges of the
Supreme Court, Judge Hampel of the County Court and Federal Magistrates. You all do me great honour.
Chief Justice, I have been honoured and privileged to serve on this Court for thirteen and a half years in the company of so many
distinguished and eminent jurists. It is a Court on which sit men and women dedicated to the preservation of the rule of law and
the principle that everyone is equal before the law. This Court has not only a national reputation for excellence in its judicial
function, it has an international reputation. Over my thirteen and a half years with the Court it has been a challenging period
for the court in which the Court has embraced up-to-date technology and implemented radical and innovative reforms. To name just
a few: the docket system, specialist panels and a fast-track list also known as the rocket docket.
I should also say that I am now able to retire having achieved an ambition which I set myself after I commenced sitting as a judge.
When a court makes rules all the judges of the court have to sign them. Early in 1997 when I was asked to sign the first new rules
which came before me the place for my signature was at the bottom of the third and the last page. I wondered whether I would ever
make the first page. I can say that not only was I able to make the first page, but two weeks ago I was half-way up the first page.
I leave a contented man.
I am delighted that my wife and partner over just on 43 years, Rachel, and our children and our grandchildren, are able to be present
here this morning. Without Rachel’s support, patience and judgment I would not have been able to have achieved the milestones
I did as a barrister and more recently as a judge. But I should add as a postscript, many people have asked me, “What are
you going to do after you retire?” I tell them that I don’t want to use the word “retire” but I would rather
refer to “transition”. In any event Rachel has said to me, “I don’t care what you do but you can’t
do it from home.” That is my next challenge.
I am pleased to say that two of my grandchildren here today, Tessa and Ella, were present at my welcome, although I suspect they
have no recollection of it. Tessa was 10 days old and holds the record for the youngest person to attend a judicial welcome. Ella
was also present but she was, if you’ll forgive the French, en ventre sa mere.
I am particularly delighted to see here today a group of former barristers, with two sad exceptions, and their partners with whom
Rachel and I started a tradition of having dinner together after the end of year Bar cocktail party in December 1969 and which
has continued for every year thereafter. I think we’re up to our forty-second consecutive dinner this coming December. All
of us made our way successfully through the senior ranks of the profession and five of us onto the Bench of the Federal Court and
the Supreme Court. I have valued the friendship of that group of men and women and hope it will continue for many years to come.
I referred to two sad exceptions and I reflect on the untimely passing of Ron Castan AM QC and John Strahan QC.
I want to thank and acknowledge publicly the support of those men and women who enable this court in Melbourne to function with
the efficiency for which it is well known. I refer to the Registry and administrative staff headed by our District Registrar Sia
Lagos and to the judges’ chambers staff without whom I expect the judges would not be able to function. In particular I want
to thank all my associates who are here this morning for their patience and understanding in dealing with my whims and my idiosyncrasies.
I expect they are still wondering why I was so obsessed with split infinitives and hanging prepositions. It got to the stage where
they gave me a stamp which they required me to affix to every judgment before it was published and the stamp reads: Approved, contains
no split infinitives.
Chief Justice, I have brought this stamp into court and I will leave it for you to pass on to whoever you regard as appropriate,
or indeed to keep it in your Chambers for use by any other judge.
I am also most grateful that my long suffering Executive Assistant for over 16 years, Victoria Wilson, is still able to decipher
my handwriting.
A special thanks also to Graham Healey who has orchestrated this farewell sitting and of many other swearing in and farewell sittings
over the years.
I also want to use this occasion, with my 70th birthday just over one month away, to make a public confession and a public apology.
When I started at the Bar in September 1965 I was callow, judgmental and only 25 years old. Like many of my young contemporaries
I thought a number of the judges on the Supreme Court and the County Court before whom we appeared were too old to remain on the
Bench, after all they were in their mid-60s. As I am now at the tail end of the 60s I have come to realise how young they were in
their 60s. I ask my friends Tim Smith and Bill Gillard, both formerly of the Supreme Court, to accept an apology on behalf of their
late fathers’ colleagues of the 60s and the 70s.
I should also tell you that this farewell was almost forestalled in the first month of my appointment. I was sitting in the Number
One Court in the old High Court building in Little Bourke Street. All of a sudden it hit me. This is the court in which the Bank
Nationalisation Case was argued. And then I thought again. This is the court in which the Communist Party Dissolution Act Case
was argued, and you will recall that these were cases of momentous significance for Australia. Then I turned pale and I realised
with horror that I was sitting in the seat in which Sir Owen Dixon used to sit. I immediately had a panic attack and I said to
myself, “I’ve no right to be here,” and I felt compelled to leave the court forthwith. History shows that I did
not but I still remember that dramatic realisation.
I don’t propose to offer a parting observation on my views about the current state of the law or the judiciary or the system
of judicial administration. It would be presumptuous of me to do so. All I wish to say is that we are very fortunate to have in
Australia a judiciary, both Federal and State, which is independent and commands the respect of the community for its judicial
decisions. It underpins our democratic structure, and that’s not necessarily the situation in other countries. Although we
take it as a given in Australia, everyone should be vigilant to ensure that the confidence of the community in our judicial system
is not eroded.
Thank you, Chief Justice, for giving me this opportunity to say farewell.
KEANE CJ: Thank you, Justice Goldberg. The court will now adjourn. Thank you, Mrs Healey.
THE FULL COURT OF THE FEDERAL COURT OF AUSTRALIA IS NOW ADJOURNED
