Ceremonial sitting of the Full Court

To welcome the Honourable Justice McElwaine

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Transcript of proceedings 



9.30 AM, FRIDAY, 25 FEBRUARY 2022

ALLSOP CJ: May I welcome everyone who is here in person and by video to this ceremony to welcome Justice McElwaine. May I first acknowledge the traditional custodians of the land on which we meet and pay my respects to their Elders past, present and emerging.

It is a great pleasure to be here in person and to have this ceremony physically. All of us have deeply missed the opportunity for personal engagement with our colleagues and with the public whom we serve. With Justice McElwaine and me on the Bench today are the Senior Judges: from Victoria, Justice Kenny; Queensland, Justice Greenwood; New South Wales, Justice Rares; and of course, Tasmania, Justice Kerr.

May I first of all acknowledge the presence of the Chief Justice, Chief Justice Blow, Justice Wood, Justice Pearce, Justice Brett, and Associate Justice Holt from the Supreme Court of Tasmania; the Honourable Justice Terry McGuire and the Honourable Judge Sandra Taglieri from the Federal Circuit and Family Court of Australia; Mr McCabe, Deputy President of the Administrative Appeals Tribunal; the Honourable Elise Archer MP, the Attorney-General of Tasmania; and Ms Sarah Kay, Solicitor-General of Tasmania. And of course, Justice McElwaine’s wife, Sonia.

Apologies from the Attorney General, the Honourable Michaelia Cash; Dr Matt Collins, the President of the Australian Bar Association; Chief Magistrate Geason; Chief Justice Alstergren; Mr Michael Kingston, the Australian Government Solicitor; Justice Collier; former Justice Buchanan and former Justice Moore of this Court; and Justice McElwaine’s daughter and son, Felicity and Toby; and Mr Zac Ward, Justice McElwaine’s son-in-law. Also, the Honourable Ewan Crawford, former Chief Justice of the Supreme Court of Tasmania; and the Honourable Justice Stephen Estcourt, Judge of the Supreme Court.

It has not been my custom normally to speak at welcomes or swearings in. I always speak at farewells, which I will this afternoon. But such a special day as this deserves a small exception. Justice McElwaine arrives to fill the shoes of Justice Kerr. It is a day on which, later, we will celebrate the contribution of a wonderful colleague and welcome with anticipation the contribution of a most distinguished practitioner to serve this Court, the people of Tasmania, and the people of Australia, not only in this Registry but all around the country, as Justice Kerr has done with such distinction. Justice McElwaine, welcome formally to the Court, and may I express on behalf of all the Judges of the Court the warmest possible welcome to the Court.

McELWAINE J: Thank you, Chief Justice.

ALLSOP CJ: I have said to others before and I say to you, may I – all I can do is wish that you enjoy your time in the Court as much as I have enjoyed my time in the Court.

McELWAINE J: Thank you.

ALLSOP CJ: Mr David Wilson, the Director of the Australian Government Solicitor in Hobart, as Senior Lawyer representing the Attorney-General.

MR D. WILSON: May it please the Court. I begin, like your Honour, acknowledging the traditional owners and custodians of the land on which we meet today, the Muwinina people, and pay my respects to their Elders. Your Honour Justice McElwaine, it is my privilege to appear on behalf of the Attorney-General, Senator the Honourable Michaelia Cash to congratulate your Honour on your appointment as a Judge of the Federal Court of Australia. On behalf of the Australian Government, I thank you for your willingness to serve this Court and extend the Government’s best wishes for your career on the bench.

Your Honour’s appointment this morning – appointment to this Court – is another momentous achievement in your highly successful career, and the Attorney expects that the Court will welcome your extensive experience in commercial law. Your appointment reflects your hard work and the high esteem in which your colleagues and members of the Judiciary and the legal profession hold you. May I acknowledge the presence of your Honour’s family and friends, and in particular, your wife, Sonia; Kerry Gunson; and your friends and colleagues, Kate Cuthbertson, Emily Judd, Chris Gunson SC, and Irene Duckett.

Your Honour, time does not permit a full exposition of your Honour’s achievements and contributions to the law this morning. Therefore, I will focus on just a few of the qualities and experiences that have marked your Honour’s career to date. These will no doubt shape the important contribution you will make to this Court. Your Honour was born in Sydney and grew up in Gladesville, in New South Wales. You and your brother, Paul, attended the local Catholic primary school, and later, Holy Cross College in Ryde, New South Wales. I’m told that during your school years, you were usually found on the cricket field.

At the end of year 12, in 1978, your Honour applied to study agricultural science at the University of New England. I’m advised that at the beginning of 1979, when your Honour was about to commence that course, you changed your mind and decided to study law. Your Honour applied yourself to the study of commerce and law at the University of New South Wales, and in 1983, your Honour graduated from that university with a Bachelor of Commerce and a Bachelor of Laws. You then went on to receive your Graduate certificate in Legal Practice in 1984 from the Australian National University.

After graduating, your Honour was admitted as a solicitor of the Supreme Court of New South Wales in 1984. Subsequently, in 1987, you were admitted as a Barrister and Solicitor of the Supreme Court to the Australian Capital Territory and to Tasmania. In 1984, you joined the Office of the Commonwealth Director of Public Prosecutions as a Legal Officer. There, you quickly moved up the ranks, becoming a Senior Legal Officer, and then a Principal Legal Officer in 1987. I’m told that after moving to Tasmania for the lifestyle, your Honour was employed by Zeeman, Kable and Page as a Solicitor in 1988, where the firm had a focus on Commercial and Family Law, and property and conveyancing. Your extremely busy work led to you becoming the sole principal and practitioner at McElwaine & Associates in 1996.

You were appointed Senior Counsel in 2013. Your areas of practice have been both diverse and impressive. They include planning and environment matters, equity, judicial review, and civil and commercial litigation. I understand your Honour has represented most of the Local Governments in Tasmania, handling many planning and commercial matters.

Your Honour has been engaged in notable cases before the High Court, including Badenach v Calvert and Coverdale v West Coast Council. In Badenach, which was about the duty of a solicitor when preparing a will, you appeared for the appellants, who were the solicitor and his firm. The High Court allowed the appeal and reversed the decision of the Supreme Court of Tasmania. Coverdale arose from an attempt by a council to levy rates on marine farming leases. You appeared for the Attorney-General of the State of Tasmania as contradictor. The High Court dismissed the appeal by the Valuer-General and affirmed the decision of the Supreme Court of Tasmania.

Your colleagues have remarked that your Honour has a prodigious capacity for work and your knowledge of the law across a breadth of areas is astounding. It has been noted by colleagues that you have a legal brain the size of a planet; I assume, however, that any other resemblance to a certain paranoid android is entirely unintended. In your private practice, your Honour’s clients have expressed great confidence in your abilities. One of your Honour’s former clients claims that your nickname was “the Rottweiler” because of your tenacious form of advocacy.

Turning to your personal qualities, some of the terms used by your family, friends and colleagues to describe your Honour are “passionate”, “incredible work ethic”, “organised”, and “committed”. You are well known for being incredibly generous with your time, always making a concerted effort to mentor and advocate for young lawyers in Tasmania, especially those with an interest in Commercial Law. Although your Honour is a serious practitioner, your Honour is noted to have a great sense of humour, and for being a wonderful friend and mentor. Your colleagues and friends say that you are a great inspiration and from working with you they have learned how to approach difficult matters, to work efficiently, to handle stress, and to remain interested and passionate about the law, and also to be well prepared and confident, particularly in the face of adversity. Your encouragement to other members of the profession is commendable.

When your Honour is not working, you can be found swimming, mountain biking, or spending time with your family. Your Honour’s family enjoys skiing together, especially in Japan, which you try and visit each year. Your Honour has maintained a keen interest in contemporary music and have a particular passion for Nick Cave’s body of work. You and your wife, Sonia, are keen attendees at the various Mona festivals in Tasmania. I’m told your Honour is interested in architecture, art, history, and furniture-making, and is quite talented in these hobbies – even though you may not necessarily agree. Your Honour’s wife has advised that the furniture-making has generally come to an end as a result of downsizing to live in an apartment in Hobart; however, you managed to make a few Huon pine side tables and coffee tables for your family last year.

Your Honour’s passions have trickled down to your family, with your son, Toby, pursuing a career as an architect. You and Sonia are also very much looking forward to becoming grandparents in a few months time when your daughter, Felicity, welcomes her first child. While your Honour’s dedication to the legal profession has taken up a considerable amount of your time over the past 30-plus years, your family has admired your ability to always find time for them.

Your Honour has demonstrated excellence in Commercial Law and been an inspiring role model and mentor to young lawyers. Your Honour’s appointment to this Court is an affirmation of your hard work and a celebration of all your achievements within legal practice. On behalf of the Australian Government and Australian people, I extend to you the sincerest congratulations and welcome you to the Federal Court of Australia. May it please the Court.

ALLSOP CJ: Thank you, Mr Wilson. Mr Zeeman, President of the Tasmanian Bar Association and representing the Australian Bar Association.

MR P. ZEEMAN: Thank you, your Honour. Your Honour, it’s a special pleasure that I’m afforded the opportunity of extending to Justice McElwaine the Tasmanian Bar Association’s and the Australian Bar Association’s welcome to the Federal Court of Australia. I would note that Dr Matthew Collins AM SC, the President of the Australian Bar Association, also expresses his best wishes this morning. I too, your Honour, would like to pay my respects and the respects of the Bar to the Elders past, current and emerging of the Muwinina people of the South East Nation on whose land this Court sits. That respect is extended to all indigenous people of Australia.

Whilst my friend has set out the many achievements of his Honour, I would like to take a small personal indulgence to remark that his Honour first moved to Tasmania to work with my late father. It would perhaps surprise no one that my father was confident that your Honour would one day end up as a member of a Superior Court and it is with a tinge of – a small amount of sadness that my late father, his Honour, was unable to see his prediction come to fruition. The Bar enthusiastically welcomes your appointment to this Court, as does the wider community. Your acceptance of an appointment gives the Bar a great deal of confidence that your outstanding legal abilities, your ability for hard work, your sense of purpose and integrity long-acknowledged by the Tasmanian legal profession and the greater Tasmanian population who were fortunate enough to have you as their representative will be put to good use as a Judge of this Court, and the best traditions of this Court will continue.

As has been noted, your Honour started your legal career in New South Wales and moved to Tasmania in 1988, and whilst the law in this State is somewhat blurry and it has not been confirmed officially, we suspect that makes you a Tasmanian. I mention this briefly: as the Bar in the wider Tasmanian community is pleased to see that the Federal Government has made a commitment to ensure this State has a continuing permanent member of the Court in the Hobart Registry. The community has been – was initially well served by visiting Judges of the Federal Court – no doubt enjoy the convivial nature of a visit to Tasmania; it wasn’t lost on the profession that most listing dates were either on a Friday or a Monday. And I would like particularly at this opportunity to acknowledge the contribution that Justice Heerey made to this Court over many years, and note his passing, and wish the best to his family.

But since the appointment of Justice Kerr, Tasmanian has demonstrated that it has not been left off the Federal map, and the workload that his Honour has undertaken has demonstrated that there is a need for a permanent Judge in this jurisdiction. At many times, in many spheres, Tasmania is overlooked, but are glad that that does not occur in the Federal Court, and we are represented as an integral part. The presence of a Judge in this State, we submit, is an important demonstration of the separation of powers which secures the political and legal system so important to our democratic nation. The continuing permanent Judge is a reminder also the legal profession that we need to ensure that we generate enough work for your Honour, as I’m certain that other Registries will be very keen to docket your Honour with work if you’re left idle in this Registry.

Your Honour, like all of us, you have seen significant change in society and in your 37 years of practice. They have also changed the way that we have practiced to ensure that we remain accessible and able to respond to those who rely on us for advice and assistance. Your Honour is not only one to embrace change; you have led change in the legal practice. For example, I remember as a junior practitioner looking across the Bar table and seeing his Honour being the first person to have a laptop, and then came his iPad; although, one wondered why his Honour needed them, because he always seemed to be entirely across the brief. Your Honour brings great legal expertise to the Court, but an appetite to embrace change which will bring efficient and timely outcomes to litigants in this Court.

We wish you well. We congratulate you. We farewell you from this side of the Bar table and look forward to the discourse between Bar and Bench in the future, and the taxing inquiry your Honour will no doubt make of counsel’s arguments. If it pleases the Court.

ALLSOP CJ: Thank you, Mr Zeeman. I now call upon Mr Liveris, the President of the Law Council of Australia, who is addressing us from Darwin.

MR T. LIVERIS: May it please the Court. I acknowledge the traditional owners of the Country on which we will meet and recognise their continuing connection to land, waters and community, and I pay my respects to Elders past, present and emerging, and extend that respect to Aboriginal and Torres Strait Islander peoples in attendance today. It is an honour to represent the Law Council of Australia this morning to welcome your Honour’s appointment to this Honourable Court, and I do thank the Court for indulging my appearance to be made virtually.

Speaking with colleagues in Tasmania, your Honour’s appointment has been warmly welcomed and embraced, as has the Commonwealth Government’s support for a permanent judicial presence to serve the people of this State, and the Law Council also acknowledges the Government’s support in this regard. Those who have worked with your Honour throughout your career are in awe of your knowledge of the law, which is notable for the wide-ranging and complex areas in which you have represented clients.

Colleagues have described your Honour as a certain jack-of-all-trades – but in your case, a master of all, your Honour being regarded as amongst Tasmania’s leading practitioners on everything from Corporations Law to Planning and Environmental Law and Professional Indemnity, practicing across the breadth of State and Federal Courts and Tribunals.

I’ve also been told of your Honour’s generosity and giving of your time to volunteer in the profession, including as a long-term member of the Rules Committee of the Supreme Court of Tasmania and the Council of Law Reporting for Tasmania. Your Honour is also always prepared to assist all lawyers, from mentoring the very newest and being a trusted source of advice and wisdom to the most experienced.

Your Honour’s depth of knowledge and skill has seen you become one of only a handful of lawyers who have been appointed Senior Counsel as an advocate whilst in practice as a Solicitor. Apart from your Honour’s expertise and passion for the law, I am told of your Honour’s ability to get to the heart of the matter and your commitment to your clients, which was described to me as “a pursuit in the tradition of fearlessness”; yet your Honour is also pragmatic and upfront, earning your client’s trust and confidence in your clear and pragmatic advice.

While as a lawyer part of your role from time to time is no doubt to metaphorically put out the fires, I understand one of your friends’ favourite stories revolves around the time that your Honour actually started a fire while clearing your block and needed to call the fire brigade to help extinguish it.

Your Honour commenced your appointment just over a month ago, and I am sure your new workplace is already well aware of your fondness for mountain bike riding. I have heard story that your love of mountain bike riding led to you decline an offer of a judicial vehicle and retain the vehicle which you use to transport your bike from one remote location to another. Your Honour has also been spoken very affectionately of as a kind and caring family man. One story that particularly resonated with me from all of the stories that your friends and colleagues kindly shared about you is that your Honour was departing your practice, digging through all your textbooks and law reports, as you were passing them on, to make sure that not a single bookmark that was made by your children was accidentally left behind in the texts. Your Honour, on behalf of the legal profession, congratulations on your elevation to this Court. The people of Australia will be privileged to be served by you in this new role. May it please the Court. 

ALLSOP CJ: Mr Gates, President of the Law Society of Tasmania.

MR S. GATES: May it please the Court. I also pay my respects to the traditional owners of the land on which we meet today, the Muwinina people. Your Honour, it is a great privilege to be able to speak on this occasion of your elevation to the Federal Court Bench.

You have for a long time been regarded as a leading light of the Tasmanian fused profession and the profession more generally, and a testament to that is you taking silk in 2013 notwithstanding that you were a member of the fused profession and a principal of your own firm. You have often been briefed by other firms, particularly on the really hard stuff, which is a testament, I think, to your talent in the law.

Your enthusiasm for Public Law in particular has seen you maintain a significant appellate practice, including a number of significant High Court cases, extending over 20 years, since the ABC v Lenah Game Meats case, which of course was a significant case in the development of the application of the implied freedom of political communication. I know from CPD events that you have conducted here voluntarily – one in particular was enlightening members of the profession to the nuances of the Kirk line of authorities, and I’m very much looking forward to reading your decisions in relation to exactly what the defining characteristics of jurisdictional error are so that I can hopefully apply that case.

It’s no mean feat for a Tasmanian private practitioner, let alone one who has managed this from practicing as both a Barrister and Solicitor, to maintain such a significant High Court and appellate practice, and you are an example to the local profession of what can be achieved as a local Solicitor and Barrister.

On behalf of the local profession, I welcome your elevation to the Bench – as a Tasmanian, I will call it – as a local sitting member of the Federal Court. And it is a testament to the talent of the local profession and to yours in particular that that has occurred and that that has been the very appropriate thing to occur. As we have already heard, your contributions to the Tasmanian legal profession have been significant and you will no doubt be a great asset to the Court. May it please the Court.

ALLSOP CJ: Thank you, Mr Gates. Justice McElwaine.

McELWAINE J: Thank you, Chief Justice. I welcome everyone to this ceremony. I too pay respect to the traditional and original owners of this land. I pay respect to those that have passed before us and acknowledge the Tasmanian Aboriginal people who are the custodians of this land.

Chief Justice, fellow Judges, Chief Justice Blow, Judges from the Supreme Court of Tasmania, Judges of the Federal Circuit and Family Court of Australia, distinguished guests, colleagues, family, and friends, I am humbled by your attendance today. I am delighted that Judges – now judicial colleagues – from the Supreme Court have found time today as part of their busy schedule to attend this ceremony. The Supreme Court is of course where I have spent 33 of my 37 years in practice and where I have acquired, often by trial and error, the essential skills of an advocate. I am honoured and privileged by my appointment to this Court; although, I am deeply conscious of the heavy responsibility that I have assumed in the exercise of the judicial power of the Commonwealth.

I thank Mr Wilson on behalf of the Attorney-General; Mr Zeeman, as President of the Tasmanian Bar Association and as representing the Australian Bar Association; Mr Liveris, the President of the Law Council of Australia; and finally, Mr Gates, the President of the Law Society of Tasmania for your overly generous, flattering and kind remarks.

Of course, the established precedent for occasions such as these is to focus on one’s achievements, throw in some humorous anecdotes, and pass over any failings of the appointee. I did not ever give serious thought that I might be considered for appointment to this Court. My first response to the late Friday afternoon telephone call – my tap on the shoulder – was to state, “Do you require an answer this afternoon?” Of course, I should not have been hesitant, as I now know a lot of background due diligence is undertaken before the approach is made. One is assessed by others as suitable for appointment. My initial self-doubt was assuaged by confidential discussions that I had with three outstanding lawyers and friends over the course of the following weekend.

As you have heard, my journey to this Court has been a long one. I was the first in my family to attend university, which would not have been possible save for the abolition of tertiary tuition fees in 1974. I did not naturally choose the law as a career path, as you have heard. My first preference was for agricultural science, which I quickly abandoned upon receiving what was in those days an HSC score that greatly exceeded the expectations of my teachers and astounded me. Were it not for a rushed application to a second round of offers which was then open at the University of New South Wales, I would not have embarked on a legal career.

As you have heard, I enrolled in Commerce and Law Degrees at the University of New South Wales in 1979, at a time when the Law School was barely eight years old and was not the first choice of Sydney legal establishment. How things have changed. The Law School is now nationally and internationally respected for the quality of its teaching and the well-rounded ability of its graduates. Those achievements are in no small part due to the foundational principles of the Law School that were implemented by the first Dean, Professor Hal Wootten. They have survived today. One, small class sizes of no more than 20 students, which was at that time a radical departure from the established norm; another, insistence upon the Socratic method of teaching and an overall commitment to excellence and the pursuit of social justice. In combination those methods, apart from the heightened sense of anxiety that it caused timorous law students, had the very great advantage of instilling in young legal minds a naturally inquisitive nature, which in later years has served me to considerable advantage.

I was privileged to receive tuition from outstanding legal scholars, including Professor Ronald Sackville, later a Judge of this Court, in Property and Equity; Professor Don Harding, in Corporations and Securities Law; Professor Michael Coper, in Constitutional Law; and Professor Mark Aronson, in what was then known as Administrative Law. Presciently, Mark Aronson would frequently remind his students, “Ladies and Gentlemen” – and he always spoke like that – “Administrative Law is certain to be an area of great growth in the law.” Although I suspect he did not predict it through the lens of the Migration Act.

I have also been tutored by outstanding practicing lawyers, who spared valuable time and had sufficient patience to provide practical legal instruction. At the risk of omission, I mention Ian Temby QC, the first Commonwealth Director of Public Prosecutions; William Zeeman, later a Judge of the Supreme Court of Tasmania; John Kable QC; David Gunson SC; Bill Martin QC; and Jeremy Ruskin QC. The latter two, I understand, are listening to the live stream. Each taught me the value of hard work, belief in one’s own ability, and that there is no substitute for thorough preparation and succinctness in advocacy. I have endeavoured throughout my career to mentor young lawyers by passing on those skills.

I owe much to the Tasmanian legal profession. Tasmania is not usually, and certainly was not in 1988, the first choice of young mainland lawyers. I must admit I had little knowledge of the structure of the Tasmanian profession, or the breadth ofwork, when the decision was made to migrate from Canberra, and not to take the advice of Ian Temby to travel to Perth. I will always recall his attempt to dissuade me from my choice by describing Tasmania as a “small pond”. But that was the attraction. The opportunity to make an impression, together with the beauty of the landscape, and for Sonya and I to raise a family in a small community.

Fortunately for me, Ian had a contact in Launceston, at what was then the pre-eminent litigation practice in Tasmania, Zeeman Kable & Page. John Kable, a gregarious and larger than life character, was also fond of self-deprecation. “I’m just a country solicitor,” he would say. That solicitor successfully argued his first case in the High Court in 1986, at the age of 33. John was a no-nonsense formidable advocate with no time for the pretentious. I was very fortunate that he and Bill Zeeman thought that I might one day be successful, although Bill’s idea of mentoring was the deep end of the diving pool without a life jacket, and the most difficult clients that one could imagine.

The fused profession in Tasmania has many advantages, not the least of which is that it is perfectly suited to individuals who find delegation difficult, which is not a bad thing when the lawyer who first takes instructions from the client is ultimately responsible for the conduct of the case in court and thereafter upon appeal. The young lawyers present here today should understand that practicing as a barrister and solicitor is no barrier to appointment as Senior Counsel, to the conduct of high-level appellate advocacy, and ultimately as a pathway to judicial office. As Estcourt J has frequently and correctly observed, Tasmania can be very proud of the standard of its advocates, both senior and junior.

As explained by others this morning in announcing my appointment, the Commonwealth Government has committed to a permanently fully-funded Federal Court judicial position in Tasmania. Although I will undertake a good deal of work in Melbourne and elsewhere – I have volunteered, at the request of the Chief Justice, to be available for circuit work – that reflects the significant advantage of a truly national court and the breadth of experience and ability that can be applied to the resolution of proceedings. To have a permanent Judge in Tasmania is significant of itself, for several reasons. One is that, since establishment of the court in 1977, I am only the fourth Tasmanian to hold office as a judge of it, and until Kerr J assumed full-time duties in this court in 2017, Tasmania had not had the benefit of a resident Federal Court Judge for some decades.

Another is that it facilitates the achievement of the primary objective of the court, being the resolution of disputes according to law promptly, courteously and efficiently, and thereby contributing to the economic and social wellbeing of Australians and, for the benefit of my present audience, Tasmanians. And further, as Mr Gates remarked upon the announcement of my appointment, a designated resident Federal Court member sends a vital message to the profession in this State that physical isolation is no impediment to national recognition.

I have been warmly welcomed, and made feel at home, by all of my judicial colleagues. This is truly a collegiate court. The Chief Justice, in particular, has been very kind, supportive and patient. It would seem that his confidence in me is most evident in his initial allocation of 7 Full Court appeals and 47 first-instance docket matters in my first week!

Finally, I thank my family. My wife, Sonya, in person; our children, Felicity and Toby, each of whom participate remotely from Sydney and Melbourne respectively. The family of a busy litigation lawyer is not the recipient of quality home time, caused by long physical absence and constant focus on the problems of others. Many is the occasion when I have been corrected at the dinner table for being physically present in the room by mentally in the courtroom. I am deeply indebted for the love and constant support of my family, and most certainly I could not have achieved success in my career without their support and understanding. 

I am very grateful for the opportunity to serve as a judge of this court in the discharge of my judicial affirmation to the best of my ability. I thank you all for your attendance today.

ALLSOP CJ: The court will now adjourn.


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