Ceremonial Sitting of the Full Court
For the swearing in and welcome of the Honourable Justice Anderson
Transcript of proceedings
PRESIDING JUDGES:
THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE DAVIES
THE HONOURABLE JUSTICE WHITE
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE STEWARD
THE HONOURABLE JUSTICE COLVIN
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE ANASTASSIOU
THE HONOURABLE JUSTICE O’BRYAN
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ANDERSON
MELBOURNE
9.30 AM, MONDAY 6 MAY 2019
ASSOCIATE: Presentation of commission and swearing in of the Honourable Justice Anderson.
Anderson J: Chief Justice, I have the honour to announce that I have received a commission from His Excellency the Governor-General appointing me a judge of the Federal Court of Australia. I now present my commission.
ALLSOP CJ: Thank you, Justice Anderson. District Registrar, would you please read the commission aloud.
DISTRICT REGISTRAR: Commission of appointment of a judge of the Federal Court of Australia. I, General the Honourable Sir Peter Cosgrove, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Counsel and under section 72 of the Constitution and subsection 6, paragraph (1) of the Federal Court of Australia Act appoint Stewart Maxwell Anderson, one of her Majesty’s counsel, to be a judge of Federal Court of Australia assigned to the Melbourne Registry commencing on 6 May 2019 until he attains the age of 70 years. Signed and sealed with the Great Seal of Australia on 4 April 2019, Peter Cosgrove, Governor-General, By His Excellency’s Command, and Christian Porter, Attorney-General.
ALLSOP CJ: Thank you. Justice Anderson, I now invite you to take the Oath of Office.
Anderson J: I, Stewart Maxwell Anderson, 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 Judge of the Federal 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.
ALLSOP CJ: Thank you. Justice Anderson, I invite you to subscribe the form of oath that you have just taken. District Registrar, I hand you the commission and the oath for subscription in the records of the Court. Congratulations, Justice Anderson.
Anderson J: Thank you, Chief Justice.
ALLSOP CJ: On behalf of all judges of the court, may I welcome you most warmly to the court.
Anderson J: Thank you very much.
ALLSOP CJ: Welcome, everyone, to this occasion. I begin by acknowledging the traditional custodians of the land on which we meet today, the peoples of the Kulin Nation, and I also pay my respects to their elders past and present. And I acknowledge the presence of Chief Justice Alstergren of the Family Court of Australia and his wife, Kate, Judges of the Family Court, Judges of the Court of Appeal, Judges and Associate Judges of the Supreme Court, Judges of the Federal Circuit Court, former Federal Court judges and, in particular, I welcome your family, Justice Anderson, your wife, Bronwyn, your mother, your son and daughter and brother and his partner Caroline and your many friends. The Honourable Kelly O’Dwyer, MP, representing the Attorney-General of the Commonwealth.
THE HON K. O’DWYER MP: Thank you, Chief Justice. May it please the court. I would like to begin by acknowledging the traditional owners and custodians on the land on which we meet today, the People of the Kulin Nation, and I pay my respects to their elders, past, present and emerging. It is a great privilege to be here today to congratulate your Honour on your appointment as a judge of the Federal Court of Australia. The Attorney-General, Christian Porter, MP, regrets the prior commitments preventing him from attending this ceremony today but he has asked that I convey the Government’s sincere thanks for your Honour’s willingness to serve as a judicial officer and that I pass on his best wishes for what he trusts will be a long and illustrious career on the bench.
Your Honour’s appointment to this court is another significant achievement in an already distinguished career. The presence of so many members of the judiciary and the legal profession here today is a testament to the high esteem in which your Honour is held and the respect that you have earned throughout your career. May I particularly acknowledge the Honourable Will Alstergren, Chief Justice of the Family Court of Australia, and Chief Judge of the Federal Circuit Court, the Honourable Justice David Beach and the Honourable Justice Richard Niall, Judges of the Victorian Court of Appeal, Ms Kristen Walker, QC, Solicitor-General of Victoria and Ms Jennifer Batrouney QC, president of the Australian Bar Association and all other members of the legal profession who are here present today.
And it is a delight to see that your family are all here present today sharing in this wonderful moment with you and quite rightly proud of the significant professional and personal achievement that this day entails. Please let me also acknowledge the presence of your wife, Dr Bronwyn Cathels; your two children, Sarah and James; your mother, Shirley; and your brother, Captain Rod Anderson.
Today I am pleased to highlight some of the qualities and experiences that friends and colleagues have shared to mark this particular occasion. At the outset, I must acknowledge four key themes that consistently came through when people were asked to reflect on their experience of you. The first is your dedication to being a team player; the second your unwavering diligence on behalf of your clients; third, your immense pride in your family; and fourth, your enthusiasm for two personal pursuits: cooking and sports cars; two subjects for which I am particularly unfamiliar. Your Honour matriculated to Monash University, graduating with a Bachelor of Economics in 1981 and a Bachelor of Laws in 1983.
Your Honour was the second person in your family to receive a tertiary qualification. Your Honour’s mother, Shirley, returned to school to complete her HSC at the local high school the year before you completed your HSC. Shirley graduated with a degree in social work two years before your Honour graduated with your two degrees, an achievement for which your Honour is supremely proud. It is clear that a strong drive and work ethic runs deep in your Honour. These are attributes that one can only infer came from your mother, a fearless role model, and your late father, Norman, who ran a small business. Your Honour undertook further studies and obtained a Diploma of Commercial Law from Monash University in 1987, an area of law which became your home and for which you made a number of significant contributions.
Your Honour was admitted to the Supreme Court of Victoria in 1985, commencing work as a Solicitor at the firm Molomby & Molomby where you remained until 1987. In this same year your Honour was called to the Victorian Bar, heading down a path towards what would be rightly a very distinguished career. You set upon building a thriving and demanding practice specialising primarily in Commercial Law. This encompassed practicing in Corporations Law, banking and finance, superannuation, property, contracts and equity and trusts. Your Honour also acted for insurers in professional negligence and directors’ and officers’ liability claims.
After 18 years at the Bar, in 2005 your Honour achieved another significant milestone in an already outstandingly good career by being appointed a Queen’s Counsel in Victoria. Since this time, your Honour has had extensive experience appearing before royal commissions, including the Victorian Bushfires Royal Commission, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry as well. Your Honour has also made further contributions to the profession serving on the Victorian Bar Council and is the Senior Vice-President of the Commercial Bar Association.
I understand that your career at the Bar has been marked by a number of commendable characteristics that bode well for a long and fruitful career on the Bench. As I indicated at the outset, two strong and consistent themes that emerged when colleagues and friends were asked about you were your dedication to being a team player and your unwavering diligence on behalf of your clients. Your Honour built a strong reputation as someone with their door open to others, from readers to other silks. One colleague remarked that you were the glue that bound your chambers together over many years. Another remarked that your Honour ran teams as teams should be run, by taking into consideration the views of others and being willing and able to make the best legal and strategic decisions based on the available views.
Your Honour remembers the names of everyone, including the paralegals that deliver your briefs, so if you decide a career at the Bench is not for you, a career in politics may be one that you might pursue. If a junior lawyer had a good idea, your Honour would be the first person not just to adopt that idea, to ensure that the client is made aware of where it – to adopt that idea but also to make sure that the client is made aware of where it originated from. In terms of your diligence, your Honour has been described variously as a very good lawyer with a sharp wit and intellect, extremely hardworking, persistent and comprehensive in your approach, fierce and strident in defence of your clients’ interests as well.
Your Honour has very high expectations of all of those around you but none less so than of yourself. Your Honour never held back in fighting a case hard for your clients but not at the expense of objectivity, the discharge of your duties to the Court or courtesy towards your opponents. I am informed that your Honour’s innate drive to be a team player extended beyond the courtroom. That on one occasion you and some colleagues found yourselves in the middle of Mardi Gras weekend on Bourbon Street in New Orleans. Your Honour joined your colleagues on an alligator swamp tour, offering perhaps a raised eyebrow but not a word of complaint when everyone returned eight hours later freezing cold, windswept, wet and having not seen a single alligator.
As one of your colleagues who embarked on this chilly adventure remarked, your Honour’s willingness to always go the extra mile with an inherent sense of what it means to be part of a team is what places you in such good stead in your new role. As I indicated at the outset, those who know your Honour remarked on the immense pride you have for your family. Your wife, Bronwyn, a paediatrician, and two children, Sarah, a physiotherapist, and James who works in finance, are no doubt overwhelmingly proud of you as you embark upon this next chapter on the Bench. Your Honour also has a beloved dog, Annie. According to my sources, Annie is an attentive and careful listener. She always agreed with you when you discussed various cross-examinations with her.
Finally, your Honour’s love of cooking and passion for sports cars cannot be left untold. I understand that you can be found most Saturday mornings conducting the weekly grocery shop at the Queen Victorian Markets. I am reliably informed that close friends delight in the many interesting meals you have shared, listening to the ins and outs of complex cases. These discussions ensued while your Honour was preparing the most extraordinary breakfast or dinner for guests to all eat sitting around the table. I am also reliably informed of your Honour’s barbecuing skills and that they are legendary, with much fanfare being applied to your newest and most exciting new cooking utensils.
In concluding, your Honour’s appointment to this Court is a testament to your many years of hard work and unwavering dedication to law and justice. No doubt, your overwhelming propensity to be giving to the community, family and friends will all benefit the Court. On behalf of the Australian Government and the Australian people, I extend to you my most sincere congratulations and welcome you to the Federal Court of Australia. May it please the Court.
ALLSOP CJ: Thank you. Dr Collins, President of the Victorian Bar.
DR M. COLLINS QC: May it please the Court. I appear on behalf of the Australian Bar Association and the Victorian Bar to congratulate your Honour on your appointment to this Court. Could I also acknowledge the traditional owners of the land on which we meet, the peoples of the Kulin Nation, and pay my respects to their elders past and present. Your Honour completed your schooling at Scotch College almost to the detriment of your start at the Bar, as I will explain shortly, before taking up a place at Monash University to study economics. Your Honour branched out into law, graduating with a Bachelor of Laws in 1983. Your Honour was admitted to practice in March 1985 and then worked as a Solicitor in commercial litigation at Molomby & Molomby, now K&L Gates.
While at Molombys, your Honour undertook further studies, completing a Diploma of Commercial Law at Monash University, graduating in 1987. Your Honour came to the Bar at the end of 1987. You were Simon Wilson’s, now QC, first reader. Simon took quite some persuasion to take you on. He felt pretty strongly that you would not be a good fit as his reader because you had been to Scotch College rather than his alma mater, Melbourne Grammar, but that was only a minor part of the reason for Simon’s reluctance. After meeting with you, his main concern was that you seemed to be excessively polite. Another matter he attributed to your Scotch education. He asked you whether you were absolutely certain that you wanted to be a Barrister because you did not seem to him to have the killer instinct.
You quietly assured him that you had thought a lot about it and you did want to be a Barrister, that is, not have the killer instinct. He took you on and thus began a professional and personal relationship that has now endured for more than 30 years during which you acted as Simon’s junior on many occasions. I too have known Simon for more than 20 years and have been both his junior and his opponent. I spoke to him, as luck would have it, last week and he said something to me I have never heard him say before. He said, “I was proved wrong in every respect”. I hoped he was speaking of something else but he was speaking of your Honour. He said of your Honour’s advocacy style “an iron fist in a satin glove”.
Now, the line has its origins of course with Napoleon Bonaparte who counselled that one should conceal one’s iron hand in a velvet glove. Napoleon is also credited with a wealth of advice for judicial officers, such as:
Nothing is more difficult and, therefore, more precious than to be able to decide.
Take time to deliberate, but when the time for action has arrived, stop thinking and go in.
And:
The truest wisdom is a resolute determination.
But quotes from Napoleon can only be taken so far. After all, this is also the man who said, “The art of policing is in order to punish less often, to punish more severely” and “A constitution should be short but obscure” but I digress. Another thing I know from personal experience is that Simon Wilson has a habit of tutoring his juniors while they are on their feet in court, even when they are no longer his juniors and have become his opponents. Your Honour was recently opposed to your former mentor and he found it almost impossible to stop himself from muttering assistance to you from the other side of the lectern. As it turns out, he might have done with some assistance from your Honour, as you went on to win the matter.
At the Bar, your Honour developed an extensive practice in commercial law, appearing in many cases at trial and on appeal in state Supreme Courts in this court. Your Honour provided advice and representation to clients on matters traversing the gamut of commercial law, from corporations law to banking and finance, superannuation, property, contracts, equity and trusts. Your Honour often acted for public company directors and officers at examinations conducted by ASIC and inquiries conducted by APRA into the conduct of participants in the Australian financial system.
One of your Honour’s first large matters as a junior was acting for the directors of the State Bank of Victoria in the Tricontinental Royal Commission led by John Middleton QC, now the Honourable Justice Middleton of this court. The matter went on for quite some time. So long, in fact, that Justice Middleton decided that counsels’ fees in the matter would need to be increased, something that he brazenly raised in conference with the client. Your Honour turned a whiter shade of pale, nearly passing out in horror, no doubt, because of the excessive politeness that Wilson QC had observed earlier.
Your Honour acted in numerous royal commissions, for the State of Victoria in the Longford Royal Commission, as counsel assisting in the Metropolitan Ambulance Service Royal Commission and for executive officers of the Emergency Services Telecommunications Authority in the Bushfires Royal Commission. Most recently, your Honour appeared on behalf of Mercer Superannuation in the Hayne Royal Commission into misconduct in the banking, superannuation and financial services industry. I outline all of that because your Honour comes to this court with vast experience in very large commercial matters. You will be very well placed to preside over large matters in this court. And counsel should be warned that having seen every trick in the book, you will easily be able to outwit the poachers now that you have become gatekeeper.
Your Honour was an old school barrister in the very best sense of that term, prepared to turn your hand to any matter, possessing a real common law quality and able to maintain an absolutely unflappable presence. You were always able to pick up a hard brief, even at the last minute before trial and make a success of it. You are known as an incredibly hard worker and a fierce advocate, a formidable opponent who is tenacious and takes no prisoners. Like all of the best barristers, however, your Honour left adversarial conduct at the bar table. You have a great ability to talk to anyone and put them at ease, disarming them with a well-timed compliment, another quality which deployed well will, no doubt, be an asset to your work as a judge.
As the Minister has mentioned, your Honour’s contribution to the profession and, in particular, to the Victorian Bar merits mention. The cohesive college that is the Victorian Bar is founded on the generous investment of time and expertise by current members for the benefit of future generations of barristers. We are the custodians of an institution for the benefit of those who come after us, including those who are yet to join. In that your Honour has invested much. Your contribution to the Bar has been a staple of your career, always giving your time willingly and generously. Your Honour was mentor to eight readers. You took a reader every year from achieving the minimum 10 years call until your Honour was appointed silk in 2005.
All of your Honour’s readers have gone on to have successful careers of their own, including Justice Michael O’Bryan, who was welcomed as a judge of this court just a month or so ago. Your Honour is described as a fantastic mentor, incredibly generous with your time and knowledge. You always went to great lengths to promote your readers, even assisting some to secure rooms on your floor of chambers, enabling you to continue to provide them with ongoing support.
Your Honour also gave your time freely to the institutions of the Bar, as a member of the Bar Council, as a director of Barristers’ Chambers, as a longstanding member and senior vice president of the Commercial Bar Association and as the Bar’s appointee to the Supreme Court Commercial Causes Users Committee, among others. Your Honour has many and varied interests outside of the law, including a love of very fast Italian motor cars, particularly of the variety that is emblazoned with the distinctive black and yellow badge of the dancing horse under the green, white and red stripes of the Italian flag.
Your Honour also has a love of travel, something you share with your close friend, Justice Paul Anastassiou, another recently appointed judge to this court. The two of you will attain a milestone birthday later this year. I will not say which birthday. I can only assume you are doing this to avoid the paparazzi but rumour has it that you are travelling under your stage names, Pavlos and Stavros. Stavros, incidentally, is a name derived from the Greek word for cross, as in the cross of the crucifixion. But Justice Anastassiou, Pavlos, is a bit less exalted. It is just the Greek word for Paul.
Your Honour has achieved many great things in your career, but it is your family that is most important to you. You have been married to Bronwyn for over 30 years. Bronwyn is a respected paediatrician at the Royal Children’s Hospital. Together you share two children – James, who works in the banking sector and Sarah, a physiotherapist, all of whom are here in court to celebrate with you today. Your Honour and your wife, Bronwyn, share a love of overseas travel and, among many other things, restoring heritage listed homes, most recently the spectacular restoration of the former home of Victoria’s first Attorney-General Sir William Stawell. I join with your friends and colleagues in congratulating your Honour on this appointment.
On behalf of the Australian Bar Association and the Victorian Bar, I wish your Honour joy in your appointment and long, satisfying and distinguished service as a judge of this court. May it please the court.
ALLSOP CJ: Thank you. Mr Pandya, President of the Law Institute of Victoria.
MR S. PANDYA: May it please the court. I appear on behalf of the Law Council of Australia and the Law Institute of Victoria and the solicitors of this state to welcome your Honour, Stewart Anderson, as a judge of the Federal Court of Australia. We also acknowledge the traditional owners of the land on which we gather and pay our respects to their elders past and present and to any elders with us today. Both the Law Council of Australia and the Law Institute of Victoria welcome the appointment of the Honourable Justice Anderson to the Federal Court. We also adopt the comments of the Victorian Bar. It is important to acknowledge the sacrifices that senior members of the profession, such as the Honourable Justice Anderson, make in accepting judicial appointments. This represents ongoing contribution to the administration of the delivery of justice in Australia.
The Law Council and the Law Institute of Victoria respectfully acknowledge his Honour’s 30 years as commercial law specialist, with particular expertise in corporations law, banking and finance, superannuation, property, contract, equity and trusts. We also wish your Honour a long and satisfying period as a judge of this court. May it please the court.
ALLSOP CJ: Thank you, Mr Pandya. Justice Anderson.
Anderson J: If your Honour pleases. Chief Justice Allsop, Chief Justice Alstergren, Ms Walker QC Solicitor-General for Victoria, the Honourable Kelly O’Dwyer, MP, Ms Batrouney, QC, President of the Australian Bar Association, Dr Collins, QC, President of the Victorian Bar, Judges, former Judges, distinguished guests of the Chief Justice, colleagues, family and friends, ladies and gentlemen, thank you all for coming here today. I am honoured that so many people have made the time to be here. I thank you, Ms O’Dwyer, Dr Collins and Mr Pandya, for your very generous words and what you were so kind not to say about me. It is true to say that I hardly recognise myself. I also want to thank my loyal friends and colleagues who by their restraint in what they have reported about me has cast me in a better light than I deserve.
It is a great privilege to have been appointed to the Federal Court of Australia. Today I have sworn an oath to serve as a judge of the Federal Court. I now intend to dedicate myself to the best of my ability to discharging that oath in the interests of all those who come before the Court. I have many people to thank who have assisted me on my journey to the place I now find myself. I am delighted that my mother, Shirley, is here today. I want to acknowledge the lifetime of support and encouragement she has given to me. My father, as you heard, died when my brother Roderick and I, were very young. That left Shirley with the sole responsibility for raising two young boys. That was not an easy task. However, my mother ensured by working long hours as the proprietor of a newsagency in Glen Huntly, that my brother and I did not want for anything, had the benefit of her love and support and a first class education.
My brother pursued his interest in aviation and is now a captain of a Qantas A380. I was fortunate enough to have made my way into the law. I was articled to Tony Hannebery, who is present in court today. Tony gave me my start in the law. Tony taught me two valuable lessons. The first was that the practice of law requires total dedication to the interests of your client. The second lesson he taught me was crime does not pay. They were both valuable lessons which stood by me for 32 years at the Victorian Bar. For the record, I never practised criminal law.
I signed the Bar Roll in 1987. Coming to the Bar was one of the best decisions I ever made. I was very fortunate to have been mentored by some fine barristers. Simon Wilson, QC, with whom I read, who is present here today, the late the Honourable Alan Goldberg QC, a former member of this court, and John Middleton, QC, now Justice Middleton, also a member of this court. It is fair to say that the mentoring style of Alan Goldberg was different to that of John Middleton. Alan Goldberg would see me after court in his chambers to discuss whatever problem was confronting me. John Middleton would book a table at a fine restaurant to discuss matters. Both provided me with excellent counsel for which I am grateful. It is a pity that business of the court means that Justice Middleton cannot be here today.
For the last 23 years, I have been fortunate enough to share chambers at level 28, Aickin Chambers, with a gifted group of barristers. I was often opposed in court to Peter Jopling, AM QC, Tim North, QC, Jim Delany, QC and James Peters, QC all of whom are at the bar table today. They were, and are, formidable advocates. That said, I cannot recall a single incident over the many years that we have been opposed where the conflict in court was ever brought back to chambers. My life at the Bar was greatly enriched by the friendship and wise counsel I received from my colleagues at level 28. I will miss my daily contact with them.
Prior to taking silk in 2005, I had the privilege of being mentor to eight readers. I enjoyed the role of mentor. In particular, I enjoyed hearing my readers’ war stories of victory and defeat as they returned from court. I was pleased to see that one of my readers, Michael O’Bryan QC, became a Justice of this court in February of this year. Perhaps Justice O’Bryan can teach this court’s newest judge a few tricks of the trade. I was also pleased when two of my other readers – Diana Harding and Andrew Broadfoot – took silk and I look forward to more of my readers taking silk in the near future.
One of the most enjoyable experiences I had at the Bar was working with many talented juniors. I will not embarrass them by mentioning them by name but they know who they are and I am honoured to see that many of them are here today. The quality of the junior Bar, not just in the State of Victoria, but, in my experience, around the country, is quite exceptional. Collectively, they ensure that the independent Bar remains strong and this, in my view, is essential to the administration of justice.
I also wish to thank the solicitors who were good enough to brief me over the years and entrust their clients’ problems with me, many of whom are also here today. Their support gave me the opportunity to learn the skills necessary to practise at the Bar and equip me for my new role as a judge of this court. I owe my clerks John, Phillip and Michael Dever, together with their staff, a debt of gratitude for the loyal and professional services they have provided me over the years.
I want to acknowledge the love and support I have had from my wife, Bronwyn, and our children, Sarah and James, each of whom are here today. Some in this court will know that having a barrister in the family is not always an easy thing. I was often absent working in chambers or present but preoccupied, thinking about some case. My family, however, never complained and they put up with much, as they knew my work as a barrister was important to me. Bronwyn, despite having a demanding practice as a consultant paediatrician at the Children’s Hospital and in private practice, somehow managed to raise two children to be fine adults of which we are both proud. I said earlier that one of the best decisions I made was coming to the Bar, but by far the best decision I have ever made was asking Bronwyn to marry me. I would not be in the position I am today without her love and support.
I would finally like to thank the Chief Justice and the Judges of the court and the staff who have made me feel so very welcome. Thank you for your attendance today.
ALLSOP CJ: The Court will now adjourn.
