Ceremonial Sitting of the Full Court

To farewell the Honourable Justice Besanko

Transcript of Proceedings

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Transcript of proceedings

THE HONOURABLE DEBRA MORTIMER, Chief Justice
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE CHARLESWORTH
THE HONOURABLE JUSTICE DERRINGTON
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE HALLEY
THE HONOURABLE JUSTICE O’SULLIVAN

GUESTS OF THE BENCH

The Honourable Bruce Lander KC
The Honourable Richard White KC

ADELAIDE

9.31 AM, MONDAY, 6 MAY 2024

MORTIMER CJ: Please announce the farewell. A warm welcome to you all. We’re on the country of the Kaurna people. We’re very close to Tarntanyangga, Victoria Square, where there was a Kaurna camp, and which is a place associated with the Red Kangaroo Dreaming. We’re also near the River Torrens, Karrawirra Parri, reflecting the Kaurna name meaning Red Gum Forest River. On behalf of the Judges, Registrars and staff of the Federal Court. I offer our respects to the Kaurna people, to their ancestors and to their elders. I acknowledge that the Kaurna people actively manage the land and waterways of this region. I also acknowledge the challenges facing the Australian community in our relationships with First Nations peoples, including how First Nations peoples are treated by the justice system. 

I welcome and acknowledge the many distinguished guests who are here today, including serving and former Justices of many State and Federal Courts. Your collective presence, along with many members of the legal profession, is an affirmation of the high regard in which Justice Besanko is held by the judiciary and the wider legal profession. Most importantly, members of Justice Besanko’s family, as well as his friends and colleagues, join us here today providing us with an opportunity to acknowledge their contribution to Justice Besanko’s long and distinguished judicial career, and an opportunity for them to see how much he is appreciated by others.

Justice Besanko, you were appointed to this Court on 3 April 2006 after approximately four and a half years of service on the Supreme Court of South Australia. At trial level on this Court, you have sat across almost all practice areas of the Court and you have been a highly valued member of a wide range of Full Courts. You have published considerably more than 650 single Judge judgments, and you have joined in more than 280 Full Court decisions. Your two very first published single Judge decisions were both migration matters, a practice area which was to become one in which you published many significant decisions.

Your first reported Full Court decision was Ho v Grigor, where you sat with your then colleagues Justices French and Stone. That appeal concerned whether an order that attempted to tie the outcome in one proceeding to the outcome in another pending proceeding was a valid exercise of power under section 23 of the Federal Court of Australia Act. After my predecessor, James Allsop, became Chief Justice, you regularly sat with him, and you also sat often with Richard White, a former Judge of this registry, who joins us today on the bench. In 2017, in Rana v GoogleInc, this powerful combination of Judges, the former Chief Justice, Justice Besanko and Justice White, gave an important decision about the nature of Federal jurisdiction in the context of a defamation proceeding. In particular, when it could be said that as a matter of practical judgment, claims within Federal jurisdiction could be said to form part of the same justiciable controversy as claims outside it, and so provide a sufficient basis for this Court to exercise jurisdiction over the whole controversy. 

Again in 2017, in Wing v Fairfax Media Publications, you sat with the then Chief Justice again, and also with Justice Rares, who joins us today, on an appeal concerning a potential inconsistency between sections 39 and 40 of the Federal Court of Australia Act and section 21 of the New South Wales Defamation Act.

The issue concerned the circumstances in which a jury trial in a defamation proceeding was available in this Court. The Full Court found there was an inconsistency between those pieces of legislation and the reasons also discussed the circumstances in which a jury might be appropriate in this court for defamation proceedings. Now the band of the former Chief Justice, yourself and Justice White were back together in 2020 for an important appeal about the operation of the Fair Work legislation. This was Registered Organisations Commissioner v The Australian Workers’ Union. That appeal concerned the standard of satisfaction the Commissioner needed to have before conducting an investigation into whether civil penalty provisions had been contravened by a union.

In 2022, again with the former Chief Justice and with Justice O’Callaghan, you sat on a judicial review application by Novak Djokovic about the second cancellation of Mr Djokovic’s visa, and thus his ability to remain in Australia to play in the Australian Open Tennis Tournament. That hearing took place on Sunday, 16 January 2022; the Federal Court never sleeps. The Court made orders the same day. The appeal attracted high media and community interest with more than 1.6 million views across the hearing and judgment delivery. I have not been able to discover whether you are a regular watcher of the Australian Open, although I do know that there is another sport that uses a different kind of bat and ball which you may prefer.

Finally, in terms of defamation proceedings, the defamation proceeding brought by Mr Ben Robert-Smith has occupied much of your judicial time over the last few years. You have published more than 45 judgments in that proceeding. Allowing for national security issues, parts of the trial were available for viewing online through the Court’s YouTube channel. There were more than 100,000 views, despite the recordings being publicly available for only approximately three days each. The final judgment delivery and submissions were live-streamed. The case was of course widely and exhaustively reported in the media.

Judgment is reserved on Mr Robert-Smith’s appeal, but that does not preclude me from making the following observation about an attribute of your time as a judge, Justice Besanko, that was on display in these proceedings, and which – if I may say so, with great respect – is both to be admired and aspired to. In high-profile cases, it is a challenge for a Judge to remain as the Court, because each of us does, to some extent, personify the delivery of justice in a proceeding. In this proceeding, no matter how high the stakes, no matter how intense the media and public scrutiny, Justice Besanko, you remained steadfastly ensuring that the focus stayed where it belonged, on the parties and on the resolution of the issues between them. That was a singular achievement in a case of this magnitude and a fitting example to us all. 

I turn now to the large number of other contributions you have made to the administration of justice during your time on this Court. You have taken on the additional judicial responsibilities of being a Judge and then Chief Justice of the

Norfolk Island Supreme Court. You have held commissions in the ACT Supreme Court and you have always been an active member on a number of the Court’s judicial committees. Since I became Chief Justice, you have particularly assisted me in the management of our appellate workload as a National Appeals Coordinating Judge, working very closely with our National Appeals Registrar, Ms Susie Stone.

You assisted me in implementing a new system of allocating interlocutory appellate work amongst all judges, but you have taken much of the initial interlocutory appellate case load yourself, and I’m very grateful indeed. I have found I can count on you for wise and well considered thoughts and advice when I need them. I know my predecessor, James Allsop, very much valued those qualities in you. Justice Besanko, the Federal Court has been fortunate indeed to have a person of your intellectual capacity, wisdom and dedication serve for 18 years on our court. You will be missed both in your judicial capacity and as a colleague. I know I speak on behalf of all serving and former Judges, Registrars and staff of the Federal Court when I wish you all the very best in your retirement, and thank you sincerely for your service to the Australian community. 

Mr Blunn from the Australian Government Solicitor, representing the Attorney-General for the Commonwealth, I invite you to address the court.

MR M. BLUNN: May it please the Court. I, too, would like to begin by acknowledging the traditional custodians of the land we are meeting on today and recognise and pay my respects to any Aboriginal and Torres Strait Islander people here today. It is a great privilege to be here today on behalf of the Australian Government and the people of Australia to celebrate your Honour’s service as a Judge of the Federal Court of Australia. I will repeat some of what the Chief Justice has already said, but it’s worthy to do so. The Attorney-General, the Honourable Mark Dreyfus KC MP, regrets that he cannot be here to share this occasion with you today. He has, however, that I ask to convey the Australian Government’s sincere appreciation for the significant lasting contribution your Honour has made in your time as Judge of this court.

As the Chief Justice observed, your Honour retires after 18 years of service to this court, and today we celebrate your long and distinguished career. The high regard in which you are held is evidenced by your colleagues from the judiciary and the legal profession who have joined you here today. I particularly acknowledge the Honourable Justice Jagot, Justice of the High Court of Australia; the Honourable Chief Justice Kourakis, Chief Justice of the Supreme Court of South Australia; the Honourable John Doyle KC AC, former Chief Justice of the Supreme Court of South Australia; the Honourable President Livesey, President of the Court of Appeal, Supreme Court of South Australia; the Honourable President Justice Dolphin, President of the South Australian Employment Tribunal; the Honourable Chief Judge Evans, Chief Judge of the District Court of South Australia; other current and former members of the judiciary and members of the legal profession.

I also acknowledge the presence of your Honour’s family who proudly, I’m sure, share this occasion with you today, in particular, your wife Andrea, your children Tom, Alexandra and James and your grandchildren Henry, Isabel and Arthur. Your Honour established your work ethic, which has been a characteristic of your time on the Bench, before you finished your education, working as a labourer, including in a foundry, while undertaking your studies at school and university. Your Honour graduated in 1976 with a Bachelor of Laws, with honours, from the University of Adelaide. In 1978, your Honour was admitted as a barrister and solicitor to the Supreme Court of South Australia and commenced practice as a solicitor for Ward & Partners.

In 1984, your Honour was called to the Bar, practicing commercial and company law, administrative law, trusts and estate, and native title. In 1994, your Honour was appointed as silk. Your Honour’s commitment to the law and the practitioner community extended beyond the day-to-day practice as you also undertook significant roles within the profession. Your Honour was a member of the South Australian Legal Practitioners Disciplinary Tribunal from 1989 to 1998, and was a presiding member of the tribunal from 1998 until 2001. Your Honour was also President of the South Australian Bar Association from 2000 to 2001. Your Honour has always been generous in your service of our profession.

Your Honour was appointed as a Judge of the Supreme Court of South Australia in 2001 and, again, as the Chief Justice has observed, a Judge of this court in 2006. Your Honour has also served as an additional judge of the Supreme Court of the Australian Capital Territory since 2007, and as the Chief Justice of the Supreme Court of Norfolk Island since 2015. Throughout your time on the Bench, your Honour has discharged your oath with distinction. In 2020, your Honour undertook a three-month judicial fellowship at the University College London, writing and teaching on the doctrine of legal unreasonableness. Throughout your Honour’s career on the Bench, you have presided over extraordinarily complex litigation, conducted under close scrutiny from the public and the profession.

Throughout, your Honour maintained your trademark good-nature and collegiate approach to supporting the ongoing management of the Court. It is your Honour’s careful, measured, well-read and modest nature that has left a mark on this court and your colleagues. Your Honour has been described as a team player, masterful and one of the finest judges to have had the privilege of serving with on the court. I am confident that your Honour’s many contributions will be very sorely missed. Despite your busy schedule, your Honour has always made time for your family, showing them loyalty and dedication in equal measure.

I am told that as children grew, you strove to instil in them the importance of loyalty, doing their best and a commitment to service. Throughout your time on the Court, your Honour has been the model of humility and generosity, showcasing your dedication to your judicial oath and the service of the Australian people. However, your Honour is not all work and no play. I’m told your Honour’s lifelong passion for cricket and Australian rules. Your Honour is a passionate supporter of Port

Adelaide, something I can’t quite understand, but your interest is also local. Your Honour has played football and cricket since your school days, more recently in your college’s Old Scholars Premiership sites.

Your Honour’s love of sport has been passed down. You never missed a school match played by your children and even came out of retirement to play several seasons of cricket with your sons. When you’re not on the field or in the Court, Your Honour volunteers your time by regularly judging moots at universities, delivering lectures as part of the Bar Readers course run by the South Australian Bar Association, and delivering continuing professional development seminars to the South Australian Bar Association. Now that your Honour’s time on the bench has come to an end, I’m told that you plan to continue teaching law and advancing the education of others while also continuing your own personal study of history and the classics.

Your Honour, it has been a privilege to be here today to celebrate your remarkable career and your contribution as a Justice of this Court. Your professionalism and unwavering commitment to the improvement of the justice system, judiciary and the legal profession, both in South Australia, more broadly nationally and abroad, are truly a wonderful example for us all. Your Honour, on behalf of the Attorney-General, the Australian Government and the Australian people, I thank you for your extraordinary contribution and wish you all the very best as you commence your new chapter. May it please the Court.

MORTIMER CJ: Thank you, Mr Blunn. Mr Dunning, President of the Australian Bar Association.

MR P. DUNNING KC: Justice Besanko, Chief Justice Mortimer, Justices of the Federal Court, the many retired Justices of the Federal Court, Justice Jagot, Chief Justice Kourakis, President Livesey, the many members of the South Australian Supreme Court in both of its divisions here, other many distinguished South Australian lawyers. It is my privilege and pleasure in equal measure, Justice Besanko, to offer the thanks and appreciation of Australia’s more than 6000 barristers for the distinguished service that your Honour has given to the people of Australia, and particularly the people of South Australia, in nearly a quarter of a century in judicial office.

It is a special day for the Bar when one of its own retires in the circumstances Your Honour does, gathering together the leaders from around the country, past and present, to recognise an extraordinary service – and an extraordinary public service. Consequently, today is inevitably a bitter-sweet day and no doubt no more so than for the South Australians amongst us, because we bid farewell to somebody who has devoted nearly a quarter of a century to the advancement of his fellow Australians by ensuring that they live within a society that is fair and that is just and can have its controversies quietly settled.

The many qualities that were spoken of already, Justice Besanko, has meant that you were something of a difficult nut when I came to try and find some stories to tell today. You have evidently led a careful, modest and kind adult life, which has left me with little material to work with. I am reliably informed that your Honour was a student at Saint Ignatius, that intellectual cradle for Adelaide’s legal elite. You were, I am told, a spirited student for a time, but completing your studies there as Dux of the school. Your Honour was also an accomplished AFL player, rejoicing – so I’m told – in the nickname of Chopper, which apparently was something about Your Honour’s ability to take marks, notwithstanding you weren’t necessarily physiologically ideal for it.

I will confess that has more than exhausted my insight into that particular game. Indeed, I am reliably informed that your Honour’s measure in court perhaps, on occasion, stood in contrast to your Honour’s measure on the pitch in your youth. Your Honour, as we have heard, commenced at Ward & Partners, where you met your wife, Andrea. You came to the bar and carved out an extraordinary practise in the areas we’ve heard, also in areas like planning and the like. Your Honour acted for the Executive Directors of Adsteam in that large litigation that occurred. Your Honour was frequently the junior, I’m informed, of the then Lander QC – later Justice Lander – who sits behind Your Honour today, and frequently led the now Ian Robertson SC. Your Honour was President of the South Australian Bar Association in 2000 and 2001, and again it’s a source of pride to our members when we see somebody who offers that level of service and dedication back to the advancement of our profession.

Your Honour sat on the South Australian Supreme Court from 2001 to 2006, and then for nearly 20 years on this court. Your Honour’s distinguished service in that regard has already been remarked upon. I would wish only to add two things. The first is, it bears repeating the capacity your Honour had to deal with the most difficult and vexed litigation that had come before this Court in a manner that saw justice dispensed in a way that was palpably fair as well as competent, and we do not ask for more than that in a judge. The second is to acknowledge, as the Chief Justice in her opening remarks did, the special place Courts have with bringing peace to our First Nations people, and the special role this Court in particular has in that regard and the significant contribution your Honour has played.

Your Honour does not achieve – like your Honour has achieved – to have so many of your professional colleagues of such standing appear as they do today, both at the bar and on the bench, without the love and the support of your family. And your wife and your children and your grandchildren should feel justifiable pride in your Honour’s contribution and the way that it is marked today. Your Honour is undoubtedly a person very committed to your family and I hope that they recognise just how much as a profession we recognise you. It is also worthy of note that your son, Tom – again, I’m reliably informed – is a member of the South Australian Bar, and it would be a special day for him in that regard. Your Honour, I salute, on behalf of the nation’s barristers, your Honour’s extraordinary contribution to this Court. May it please the Court.

MORTIMER CJ: Thank you, Mr Dunning. Ms Shaw, President of the South Australian Bar Association.

MS M. SHAW KC: May it please the Court. I, too, acknowledge the traditional custodians of the land on which we gather, the Kaurna people. I pay my respects to their elders past and present. I have the honour of appearing on behalf of the South Australian Bar Association to share in the celebration of your Honour Justice Besanko’s career in the law, at the Bar and on the Court of both the Supreme Court of South Australia and the Federal Court, and to thank your Honour for your extraordinary service you have provided to the court, the public and the profession. Your Honour’s detailed history in the law has already been outlined by others, but at the Independent Bar, your Honour was a barrister at Jeffcott Chambers, taking silk in 1994. Your Honour was appointed to the Supreme Court of South Australia in 2001 and to the Federal Court in 2006.

Your Honour has been a strong contributor to the South Australian Bar Association. You served as our President for two years. You regularly present at the annual South Australian Bar Association conferences and to our up-and-coming bar readers. You have also regularly judged moots at the universities in South Australia and chaired and delivered numerous continuing professional development programs for different bodies and organisations. Whilst at the Bar, you also served as the presiding member of the Legal Practitioners Disciplinary Tribunal for several years. During your judicial career, you were also a member of the Legal Practitioners Education and Admission council for a number of years.

Not only is your Honour known to have an extraordinary knowledge of the law and a commitment to continue to read and learn, above all else, your Honour is admired for how hard you work. It is perhaps no surprise, therefore that one of your legal idols is Sir Owen Dixon. Sir Frank Kitto, a former Justice of the High Court, recalled that Sir Owen Dixon had once said to him, “If I have achieved anything, it has been by hard work.” It might be said by many that Sir Owen Dixon’s remarks to former Justice Kitto were an understatement. So too it might be said that along with your hard work, your deep knowledge of the law resulted in judgments that withstood scrutiny at the highest level. That was various evidence soon after your appointment to the Supreme Court. Your Honour heard a trial of a plaintiff’s claim against two sets of defendants for infringement of the plaintiff’s registered designs.

The claim was brought under the Commonwealth Designs Act at a time when state Supreme Courts were still invested with federal jurisdiction in intellectual property matters. You delivered judgment in February 2003, a judgment which extended over some 80 pages. You found against one defendant on the basis of fraudulent imitation, a rarely litigated question raising difficult factual and legal issues in the law and in the law of designs. The defendant appealed to the Full Court of the Federal Court, and he prevailed in a unanimous decision of three Judges. The judgment is reported in the Intellectual Property Reports.

However, the plaintiff appealed to the High Court. There, five Justices unanimously restored your Honour’s judgment, effectively endorsing it. The decision of the High Court is reported in the Commonwealth Law Reports. It is curious, and some would say a disappointing reflection of case reporting at that time in this state, that your Honour’s judgment at first instance was never reported in the South Australian State Reports and the citation for your Honour’s judgment in the High Court is the report of our Law Society judgment Scheme. 

If I can return briefly to Sir Owen Dixon, who was also known for his exactness of thought and expression. And I am told that those who have appeared before you came to learn very quickly that you also seem to adopt this attribute. And so, not surprisingly perhaps, your Honour was known as a stickler for the appropriate procedures and protocols, and always keen to ensure that matters were approached from the ground up and in an orderly way. Any advocate appearing before your Honour knew that even in the case of a directions hearing, there was no such thing as going down to roll the arm over and see how things went. One advocate recalls appearing in a directions hearing before your Honour in the Federal Court thinking he was very organised, but made the mistake of attempting to hand up to your Honour a document entitled Agenda with a list of various topics to be addressed.

Your Honour immediately queried, when had it become appropriate to have an agenda for a Court hearing as opposed to a meeting? The advocate, sensing where things were headed, timidly responded that it was a form of document sometimes used in directions hearings over the road in the Supreme Court, to which your Honour responded, “Well, its use should stay over the road”, as your Honour handed the document back to counsel via your Honour’s associate.

Another advocate recalls attempting to make something of a speech, complaining about the other side’s defaults, only to be cut off mid-sentence with something to the effect, “Expressions of disappointment are not an appropriate form of advocacy. Please confine yourself to the orders you seek.” Of course, your Honour’s emphasis upon proper procedures and a ground-up approach was never at the expense of properly and fairly dealing with the matters in issue. Indeed, they were the means by which your Honour ensured that matters were properly and fairly dealt with. Whenever a difficult issue arose, your Honour was always admired for your determination to go back to first principles and work out the appropriate answer from the ground up and in a careful and meticulous manner.

I am reliably informed that outside the law, however, your Honour has a contrarian streak. One example of this is how you came to be a barracker of Port Adelaide AFL Football Club, or back in the day Port Adelaide, then Port Power and then Port Adelaide again. The first football game your Honour went to as a young child was actually in Melbourne, a Melbourne versus Collingwood game at the MCG. You went with your father and your older brother. Your father asked you, “Who are you going to barrack for?” Your older brother said Melbourne. And of course, your Honour said Collingwood. When you began school at the little parish school in Rose Park, you were asked by the other boys who you supported.

You asked if there was a black and white team, thinking back to your match where Collingwood played. The boys responded with, “That’s Port Adelaide. We all go for the red and blue team, Norwood.” Your Honour, being the contrarian that you could be, decided to go against the flow and support Port Adelaide, despite being surrounded by friends who were all Norwood supporters. And your passionate love of Port has been taken up by the rest of your family. In fact, professional sports people in this State, including the Crows and Port Adelaide or Port Power footballers, were the beneficiaries of your Honour’s ground-up approach in a case that came before your Honour as a member of the Full Court in 1999.

It was an appeal on a question of law from the Workers’ Compensation Jurisdiction. In 1991, a regulation under the WorkCover Act had been passed that was intended to exclude injured sports-persons from getting workers’ compensation payments if they were injured during their sporting exploits. The Crows had joined the AFL, and players were at that stage earning substantial sums of money to play. And so the regulation became known as the Crow’s Regulation to deny those players compensation for injury during their sporting activities. Port Power, as Port Adelaide were then known, entered the AFL at a somewhat later point in time.

And it was in 1998 that a Port Power AFL player, Danny Morton, suffered a significant neck and spinal injury while playing football. He decided to challenge the validity of the Crow’s Regulation and argued it was invalid by reason of inconsistency with the Act. Mr Morton sought to recover significant compensation payments if he was successful. Coincidentally, at about the same time, a little-known coach of the Naracoorte football club, the Demons, had injured his shoulder and was seeking a few hundred dollars a week. And so he sought advice from a local lawyer, no doubt a Demons fan, who engaged solicitors in Adelaide to take his case. The Naracoorte coach’s solicitor took your Honour’s approach – a ground-up approach.

He obtained the minutes of the meeting from 1991, when the Crow’s Regulation was said to have been before the board, and approved. However, those minutes demonstrated that, contrary to the demands of the legislation, the precise regulation was not before the board. Your Honour, writing in the Full Court, held that the Demon’s argument was correct. Therefore, not only was Danny Morton able to claim compensation, but so too were all those who had suffered sporting injuries as professional sports-persons since 1991. And so, in a city like Adelaide, where the rivalry between the Crows and your Honour’s team, formerly Port Power, is daily news, as a result of this judgment both teams were winners because the Full Court found – as my solicitor quipped – that Crow’s Regulation was made without the power.

Much has been said already about your Honour’s devotion not just to the law but to your family. No matter what the demands were in your judicial life over the past 23 years, you always made time to be part of their lives. Your Geoffrey Boycott approach to your batting in cricket meant that you would hang around for a long

time, and you did. And indeed, I’m told, even in your 50s, as this Court has heard, you played in the same team as sons. I’m also told that you’re an avid walker. Every morning you take a walk in your neighbourhood and sometimes your children would walk with you and that’s where they learnt their times tables as they walked around the district.

At the same time, you had never been one for high-end fashion. So at the height of winter, you would don a dark coloured beanie and dark gloves with fingertips missing and a dark windcheater for your early morning walk. I am told in that eerie morning light before sunset, the sight of this man in the neighbourhood dressed in black caught the attention of neighbours who mistook you for a would-be burglar before you were eventually recognised. I am told that when this filtered back to your children and they gave you a bit of a ribbing about it, that only encouraged you to continue with your fashion statement on early morning walks.

So today not only do I extend the gratitude of all members of the South Australian Bar to you for your service, but I join with your family in honouring you. You must be truly proud to know, as I have learnt, that your children regard you as a model of humility and restraint. It reminded me of what was written about Sir Thomas More and his relationship with his father. I understand Sir Thomas More was another great idol of Your Honour’s and who is recognised as having had a major influence in developing equity as an additional legal system — an area of the law that I understand your Honour particularly enjoys. In fact, I have it on good authority that Sir Thomas More’s portrait hangs in your Honour’s study. Sir Thomas More was also someone who was well known for the strong bond he had with his father.

In fact, Sir Thomas More kept his father in his house into his father’s elderly years. It is written that such in a word was More’s love and obedience towards his father; such in return the father’s pride and love in his son, that it is difficult to say whether the son was more worthy of such a father or the father of such a son. Your Honour is indeed blessed to share the pride and love of your family as Sir Thomas More did of his father. We thank you for your service and your contribution, and we wish you and your family the best of life in your retirement. May it please the court.

MORTIMER CJ: Thank you, Ms Shaw. Mr Lazarevich, President of the Law Society of South Australia.

MR LAZAREVICH: May it please the court. It gives me great pleasure to rise on behalf of each of the Law Council of Australia, the Law Society of South Australia and the South Australian legal profession generally to acknowledge Your Honour’s contributions to and upcoming retirement from this honourable court. Your Honour’s career has been coloured by a strong commitment to the pursuit of justice and excellence, which is reflected in many of your significant achievements. Your Honour attended the University of Adelaide and graduated with a Bachelor of Laws with First Class Honours in 1976. It is no surprise to learn that your Honour earned multiple awards and prizes throughout your academic career.

Your Honour undertook articles at Ward & Partners in 1977 and was subsequently admitted to the profession in 1978. Your Honour remained with Ward & Partners for six years following your admission, developing legal skills and the ethical approach to practice for which you have become known. During your time at Ward & Partners, your Honour was involved with the Law Society of South Australia. Your Honour was a junior member of the Law Society Council for two years from 1982 and then became a member for a further two years. Your Honour served as a member of a number of committees. These included the Civil Litigation Committee in 1988, the Insurance Monitoring Committee from 1991 to 1993 and the Professional Conduct and Practice Committee from 1990 to 1993 and 1997 to 1998.

Your Honour has regularly judged moots of the Universities of South Australia and has also chaired a number of educational sessions to the South Australian profession over the years in areas including civil litigation, torts and contract. The Society expresses its extreme gratitude for your Honour’s generosity and your Honour’s willingness to contribute to the education of your colleagues in this way. Your Honour has practiced at the independent bar from 1984 through to 2001, primarily in the areas of administrative law, native title and corporations law. During that time, your Honour took silk and also sat as a presiding member of the South Australian Legal Practitioners’ Disciplinary Tribunal. In 2001, your Honour took up a position of the president of the South Australian Bar Association where you played a significant role in shaping the Bar Association’s ethical guidelines and educational initiatives. These contributions speak to your Honour’s strong leadership and vision for the legal community.

My first experience of your Honour was in one of my first jobs in private practice, so going into a small law firm. The first case I had was a High Court case; I didn’t get back to the High Court for another 10 years, but it was one in which our client was Colex and your Honour was acting for the City of Enfield. Our client’s team included High Court specialist David Jackson QC, as he then was, and Brian Hayes QC and our client was seeking to uphold what had been a fairly orthodox judgment from the Full Court of South Australia applying principles of law which had been orthodox for decades. Accordingly, people in our team, such as myself, were extremely confident as to how it would all play out. However, David Jackson said that what your Honour had done was pick not where the law was now, but your Honour had picked where the High Court was going to go and it was your Honour’s submissions which were ultimately going to be successful.

That turned out to be the case and it’s an important lesson: so any competent lawyer can research what the law is, but it does take a special lawyer to fully understand where the law is going in the future and your Honour had that particular skill. Your Honour was appointed a judge of the South Australian Supreme Court in 2001, a judge of this honourable court in 2006, an additional judge of the ACT Supreme Court in 2007, as well as, as we’ve heard, in the Norfolk Island. Your Honour has presided over countless cases, many of them quite complex in nature and have had the benefit of your meticulous procedures, thorough and precise, that underline every aspect of your work. Many of those have been high profile including the Ben

Roberts-Smith case and the Djokovic case which have attracted a great deal of media attention.

Your Honour has been an enormous contributor to this court by the way of the intra-court committee work which has been of assistance to its functioning. Your Honour is recognised as a judge of the first quality demonstrating the desired judicial attributes and is highly respected by your fellow judges and as a practitioner who occasionally appeared before your Honour, your Honour was always polite, but had the requisite degree of intellect, toughness and steel, and it was either a brave or foolish practitioner who would go to court thinking that the last set of procedural orders your Honour had made was simply some kind of aspiration as opposed to a set of things they were actually supposed to do. But those things all stand practitioners in – or make practitioners better for it and so that concept of doing what you’re supposed to and knowing what the case is about stands people in good stead for their future careers.

Beyond your professional accomplishments, I’m told your Honour has been a pillar of support and guidance for your colleagues and mentees. Your Honour is regarded as a sound source of advice, described as having a meticulous approach, incisive intellect, unwavering dedication to fairness and justice, has empathy, compassion that goes well beyond the obligations of judicial office. So on behalf of the Society’s members, its staff and the wider legal profession, I offer my sincere gratitude for the decades of service your Honour has provided to the profession and the judicial system and every best wish your Honour as you embark on this new chapter of your life. May this chapter be filled with joy, fulfilment, well-deserved relaxation and finding more time to enjoy your interests, which I’m told will include family and plenty of football and cricket. May it please the court.

MORTIMER CJ: Thank you, Mr Lazarevich. Justice Besanko, I invite you to reply.

BESANKO J: Chief Justice, Mr Blunn, Mr Dunning, Ms Shaw, Mr Lazarevich, fellow judges, distinguished guests, ladies and gentlemen, I thank the speakers for their kind, if not exaggerated words. All I can say is I would like to meet the person who has been described. I commenced my judicial career almost 23 years ago. I apologise to those who have heard some of these things from a speech I gave a couple of weeks ago. I have been reflecting for the past month or so on the reasons I became a judge, apart from the obvious reason that I was asked, the opportunity to write, more control over the time I worked, and because I had had enough of the punishing demands of being a barrister, particularly in long cases, were among the reasons.

The opportunity to write has been the best part of the job for me. It is a great privilege to be able to do so. At the same time, it is relentless and like a busy railway station, one train moves off and it is immediately replaced by another. More control over the time I worked has proved to be a complete myth, at least in my case, and to my observations in the case of a number of other judges, but perhaps not all. As to

the pressures of being a barrister, the pressures of being a judge are quite different. I have already mentioned writing judgments, but the other requirement is developing a good court craft. It is impossible to compare the pressures on a barrister and those on a judge, but I would say that I found the task of advising a client who was about to spend a lot of money particularly difficult.

As you have heard, I commenced as a judge of the Supreme Court in October 2001, which is almost 23 years ago. I was on the Supreme Court for four and a half years. It is now a long time ago and my memory is somewhat hazy, but I do remember quite clearly being part of a collegiate court and that I received considerable assistance and guidance from a number of judges, including Doyle CJ and Justices Debelle, Duggan, Mulligan and Lander JJ. I enjoyed the work very much, in particular the common law work, including in contracts, torts and general commercial. There was also work in equity, which involved trusts and fiduciary duties, and their almost inevitable companion: Barnes v Addy claims, and I found that work stimulating.

I found the work – I found the criminal work daunting at first. I had not done any at the bar, but I found it interesting. You need to be constantly alert in cases involving juries, and sentencing was particularly challenging, weighing up the relevant factors, particularly in cases where although the defendant had made a serious mistake, he or she had not had many opportunities in life and little or no encouragement or assistance. As far as I can recall, and my evidence is far from the best evidence on such matters, there was no audio-visual equipment, at least used by judges, and no mobile phones. Every judge had one tip staff and an associate, judgments were written by hand or a Dictaphone was used. I moved to the Federal Court in April 2006, as you have heard, and into quite different areas of work.

The Court then consisted of about 48 judges, which was a relatively large number at the time. The other judges in the Adelaide Registry were Mansfield, Finn and Lander JJ, and the Registry had a very good reputation at the time, which is unsurprising in view of the quality of the judges I have mentioned. I started travelling and one thing I noticed was how each registry had its own particular customs and habits. It would have been interesting to trace the history of those customs and habits in particular states to identify how and why they arose. I pass over the years which follow, other than to say there were very good relationships within the court, and also in this registry, between the judges and the Registrar and registry staff. I would like to acknowledge and thank those judges who are here, those present judges who are not here and past judges of the court. Some have travelled a considerable distance and I am very grateful for that.

I was also able to speak to the other judges in this registry about problems which I was concerned with. As you would all know, to state a problem verbally is often to solve it or at least to clarify it. I was almost always in on a Saturday morning, and I found myself speaking to Justice Lander, and later to Justice White. That was always a rewarding experience, except when the conversation turned to football, about which, as it seemed to me, they knew very little. 

I would like to mention briefly three matters: judicial models, changes in the courts during my time and some aspects of the rule of law. What I mean by judicial models are people who provide an example of how to carry out the judicial function. There are, of course, many aspects of that function, but the ones that occur to me are writing judgments, behaviour in court and strict independence. I have been particularly fortunate in having such models, and the deficiencies in living up to those examples are mine alone.

I know it is trite to say, but it is nevertheless true, that actions speak louder than words. Judges’ induction courses are helpful, but in the end it is in the examples around you which have the most profound influence, or at least in my experience that is the case. I have already mentioned good judgments, and, again, I was fortunate to be able to learn from the judges around me. As to behaviour in court, I have learnt so many lessons by watching those around me about being calm, steering the arguments in the right direction, and dealing with the occasional Thersites. I also wanted to say a few words about the changes that have occurred since I began on Supreme Court in 2001 because, partly, I do not think the forces driving some of them are spent. 

The first is the use of audio-visual equipment for hearings and the live streaming of cases. The former, of course, was turbocharged by COVID. I do not recall using visual equipment at all in my early years, and even when it did happen, it was restricted to the occasional hearing on procedural matters. I think both mechanisms for conducting hearings are likely to continue to grow and there will need to be a continuing debate as to whether this is or is not appropriate. Another matter is the increasing nationalisation of many organisations, including the courts. Examples are the AGS, large law firms and regulatory bodies. It is not appropriate for me to comment on this topic other than to say that whether it has reached its high point or whether it will increase further is uncertain, at least to me. The other matter I want to mention is the possibility of short-form judgments, mainly because I find it fascinating. Whether that would be done by some form of cross-referencing, I do not know. It may not be possible in the end, but it is an idea worth exploring.

Finally, I want to mention the rule of law. I do not, of course, claim any special expertise in this respect. The scholars will tell you that it means different things to different people. For what it is worth, I mention two aspects which I think are important: they are judicial independence and clarity of legislation. As to the former, we have strict rules as to apparent bias and, generally speaking, a first-class appeals system. As to the latter, legislation grows ever more complex, perhaps wholly because of the increasing complexity of society. Whether we can do anything to alleviate the complexity of legislation, again, is something I do not know. I can’t resist giving you an example that I found in Lord Bingham’s book of convoluted and unnecessary drafting. This example was found in the Banking Act Appeals Procedure, England and Wales Regulations 1979. The regulation provided this:

Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations.

I have served with five Chief Justices: Chief Justice Doyle, Black, Keane, Allsop and Mortimer. For what it is worth, in my experience, each of these Chief Justices has enhanced the reputation of the courts they have led. Some of my associates are here and have travelled considerable distance to be here. I am grateful for that. They all bring different skills, but highly valued is their enthusiasm and energy. Each one of my associates has brought this to the chambers. I have had two EAs over the period I’ve been Judge, Sally Greenhalgh for 12 years and Sharon Davis for 11 years and I want to say that throughout that time, both of them have shown professionalism and competence and a hard work ethic. Furthermore, they have been very skilled in easing the associates into the chambers and the ethos of the chambers.

As to the Bar, it is perhaps not the right sentiment to simply say that I thank the Bar: they are a large and diverse group. More to the point is to express my gratitude to the barristers who have appeared before me and who have, by and large, emphasised the strong points, gone softly on the doubtful points and abandoned the hopeless points. Finally, I would like to thank my family for their love and support, my late parents for instilling in me a strong work ethic and recognising the benefits of a good education, my wife Andrea for her calmness, patience and optimism in respect of all problems and my children for their helpful and encouraging advice on matters such as honing my sense of humour, cooking the barbecue, using the remote control, etcetera. That advice was always received in the same spirit as it was intended. I would also like to thank Dimitra and other court staff for the considerable work in organising an event such as this. Thank you for coming. I am truly grateful for your attendance.

MORTIMER CJ: Thank you Justice Besanko. The court will now adjourn.

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