Ceremonial Sitting of the Full Court
To farewell the Honourable Justice Middleton AM
Transcript of proceedings
THE HONOURABLE JAMES ALLSOP AO, Chief Justice
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE MIDDLETON AM
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE SC DERRINGTON AM
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE THAWLEY
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE O’BRYAN
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE McELWAINE
THE HONOURABLE JUSTICE McEVOY
THE HONOURABLE JUSTICE HESPE
9.31 AM, THURSDAY, 8 DECEMBER 2022
ALLSOP CJ: Welcome to this ceremonial sitting of the Court. I acknowledge the traditional custodians of the land on which we gather, the Peoples of Kulin Nation, and pay my respects to their elders past, present and emerging. May I, first, welcome the Governor her Excellency Linda Dessau AC, and Mr Howard AM QC and former Chief Justices of this Court, the Honourable Michael Black AC KC and the Honourable Patrick Keane AC KC. May I welcome, Justice Middleton – may I welcome your wife Judith, and sons Thomas and Anthony and the fiancé of Anthony, Camilla.
May I acknowledge the judiciary here today, in particular, Chief Justice Alstergren AO; President Emerton of the Court of Appeal; Justices Beach and Forrest of the Court of Appeal; Judges of the Federal Circuit and Family Court of Australia; Judges of the Supreme Court of Victoria and of the County Court; former Judges of the High Court, the Honourable Justice Hayne – the Honourable Kenneth Hayne AC KC, the Honourable Susan Crennan AC KC and the Honourable Geoffrey Nettle AC KC; former Judges of the Federal Court and Supreme Court, the Honourable Peter Gray AM, former Justice Weinberg AO, former Justice Finkelstein AO KC, Young KC, Digby KC and Kellam AO KC; and the many, many friends of yours here today, Justice Middleton, far too numerous to mention.
But may I particularly welcome Mr Allan Myers AC KC and the Honourable Jack Rush AO RFD KC. There are many apologies, far too many to mention. This is the last one of these I will do, so I can say this. Some of these are easier speeches to make than others. This is easy. The full house here today is a fitting tribute as a mark of the affection and respect in which you are held and also for the service that you have done to the Court and the Australian people.
You were appointed back in July 2006 and you retire after almost 16 and a half years serving as a Judge of this Court, but also as a Deputy President and President of the Australian Competition Tribunal, as a Presidential Member of the Administrative Appeals Tribunal and as a part-time Commissioner of the Australian Law Reform Commission. The work on the Australian Law Reform Commission was discussed in detail at your farewell recently, and I will not repeat that.
But all that service reflects the range of your intellectual and scholarly interests and capacities which are also reflected by your first-class honours degree, your first-class BCL at Oxford, and the Winter Williams Scholarship at Oxford, and by your associateship with Sir Ninian Stephen, and your contribution to the law outside the court in many other ways with the University of Melbourne, with the Academy of Law, with the Intellectual Property Society of Australia and New Zealand, with AICA the arbitration organisation, and with the American Law Institute and also as Patron of the Oxford University Society in Melbourne.
Before I continue – I apologise – I should acknowledge, and I overlooked it, former Governor the Honourable Alex Chernov AC KC – my apologies – and Mrs Chernov – my apologies. After taking silk in 1991 you served with great distinction as a Chair of the Victorian Bar Council. I do not propose to repeat the description of your skill and talents as counsel so clearly described in your swearing in by the then Solicitor-General for the Commonwealth Mr David Bennett, Mr Ray on behalf of the Law Council of Australia and the Victorian Bar, and Ms McMillan on behalf of the Victorian Bar and Mr Probus on behalf of the Law Institute.
I wish to confine my remarks to your work as a Judge. As a Judge you have epitomised the remarks made by Sir Ninian Stephen on his welcome to the High Court that you referred to in your welcome. Sir Ninian said that the chief pleasure of judicial office should be to witness the intellectual accomplishment of the bar, the weaving of threads of well-ordered evidence into the whole cloth of cogent argument. We don’t always receive that kind of assistance, but your judgments were always written as if you had, which was a testament to the Bar and also your skill.
Your judgments were always written with style and simplicity. You were a peerless commercial lawyer at the Bar and, likewise, on the Bench in all aspects of commercial law, including tax, intellectual property, arbitration, regulation of all kinds, competition and insurance. You brought gifts of rapid reduction and synthesis with an innate and intuitive ability to appreciate the correct focal distance and perspective at which to analyse the problem.
Your ability to sum-up a problem, describe it and explain it with a practical answer and solution, always in elegant prose, was remarkable and legendary. These talents operated most obviously in managing and never being overwhelmed by vast bodies of facts and complexity in cases thrown up in competition, whether on the Tribunal or not, and in patent cases. The difficulty of these cases and the mental and physical demands made by them upon judges is not appreciated except by those who have to do them.
Another example of this reduction to a practical answer in an entirely different context is this: deep in the argument of legal rights, the powers of the Court, the proper construction of Part IVA of the Federal Court of Australia Act and the equivalent provisions of the Supreme Court of New South – the New South Wales Supreme Court Act, difficult questions of construction, statutory purpose, and the elusive application of Anthony Hordern’s case, a small, inquiring voice arose from the seat next to me occupied by you, and you asked the parties, rather impishly and with a certain faux ingenuousness, but quite incisively, “But why can’t I just do this by case management?” It was a question never really addressed, and certainly not answered, by anyone on the benches who heard it. But it was probably the answer to the whole problem – an indication in case management that this is what will happen or is likely to happen. Pure case-management genius. Pure Middleton.
The difficulty of summing you up is, in part, your elusive subtlety wrapped in humour and self-deprecation. Sometimes your speed of extraction from a room or from an argument with a generous and determined refusal ever to be bored, or appear bored or overly serious, could mask the attention to solutions of the problem that you were always giving. These last descriptions are good qualities and epitomise an elusive charm and an essential decency in solving problems.
The important judgments that you have delivered are far too numerous to deal with exhaustively, and I’m not sure you want me to go through them, but some should be mentioned. Some will raise smiles and some will not. You enjoyed the Essendon Football Club case, as did your adoring fans, but there were many, many important cases: your deft handling of the hugely difficult Virgin Australia administration, the Vodafone Hutchison Competition Commission case, a very important early judgment on directors’ duties in Healey’s case, and cases such as GetSwift, Pacific National, and many, many more, many in patents and many in competition. Within the Court, you’ve served on the Education Committee from 2009 to 2022, wonderful service, from 2009 to 2014 as Chair; the National Practice Committee from 2011; and the Finance and the later Important Operations and Finance Committee.
As a colleague, no judge could ask for more. You are unfailingly polite and courteous. I’ve never heard you say a harsh word about anyone. If there was nothing good to say, nothing was said. You’re also kind and considerate, with great wit and an infectious laugh, matched with your impish humour. I think your joie de vivre is your spirit.
For a Chief Justice, you were one of those colleagues who are priceless: frank, helpful, and always there to assist.
We wish you and Judith a long and happy next phase of your lives.
I note from the papers that in interview with Mr Pelly you described the Four Stages of Retirement. This sounded a little like the title of the penultimate, but lost, novel from Anthony Powell’s 12-volume work The Dance to the Music of Time: perhaps between Temporary Kings and Hearing Sweet Harmonies.
I know you will bring to whatever stage you are in the calmness, good humour, style, intelligence, commonsense, decency and, above all, fun with which you have marked your time not only at the Bar but on the Court. I wish you well. Mr Attorney.
THE HON M. DREYFUS KC: May it please the Court. I would like to begin by acknowledging the Wurundjeri people of the Kulin Nation, the traditional custodians of this land on which we’re gathered today, and pay my respects to their elders, past and present. I would like to extend that respect to any Aboriginal and Torres Strait Islander peoples present today. I reiterate the Government’s commitment to implement ting the Uluru Statement from the Heart in full, beginning with a referendum to enshrine an Aboriginal and Torres Strait Islander voice in the Australian Constitution during this term of Parliament.
Your Honour retires after 16 years of dedicated service to the Federal Court of Australia, the culmination of a long and distinguished career on the Bench, in which you have devoted yourself to the improvement of the law and the legal profession. That so many of your colleagues in the Judiciary and the legal profession are here today is testament to the high regard in which you are held. The Chief Justice has acknowledged a number of the current and former members of the Judiciary who are here.
I would like to acknowledge again the presence of her Excellency, the Honourable Linda Dessau, a Sea Governor of Victoria, and former Governor, the Honourable Alex Chernov AC. I also want to acknowledge, although he has already been acknowledged, the Honourable Michael Black AC KC, former Chief Justice of this court, with whom your Honour read. I would acknowledge members of the legal profession and other distinguished guests. Can I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you. Your wife, Judith, is here today with two of your children, Thomas and Anthony.
Highlighting a full catalogue of your Honour’s many accomplishments would occupy more time than we have. Therefore, it is with great pleasure that I speak to just a few of the qualities that have marked your Honour’s career to date. Your Honour completed a Bachelor of Laws with First Class Honours at the University of Melbourne in 1976. Your dedication to expanding your legal knowledge was further evident in your completion of a Bachelor of Civil Law with First Class Honours from the University of Oxford. You were awarded the Winter Williams Studentship.
Your Honour’s commitment to continuous legal education is a valuable trait from which your Honour – from which the Court has no doubt come to benefit. Your Honour was admitted to practise as a Barrister and Solicitor of the Supreme Court of Victoria in 1976. After serving as an associate to the highly esteemed Sir Ninian Stephen, then Justice of the High Court of Australia, you were called to the Bar in 1979. From your earliest days as a barrister, you practised extensively in the areas of constitutional and administrative law, resources law and commercial law, and built up considerable expertise in these areas.
In 1991, your Honour’s extensive experience and esteemed reputation ultimately culminated in your appointment as one of her Majesty’s Counsel for the State of Victoria. In 2003, your Honour was awarded the Centenary Medal for your service to the community and to education as Chairman of the Victorian Bar Council. In 2006, your Honour’s impressive contributions to commercial law and the legal profession led to your deserved appointment as a Justice of the Federal Court of Australia. At the Court, your Honour’s commitment to ensuring Australia remained a safe place for investment continued, as you sought to ensure transparency, efficiency, fairness and predictability in Australia’s commercial sector.
One of your Honour’s most significant contributions to this Court was the efficient management and resolution of very many significant intellectual property, patent and competition law matters. This includes the case of ASIC v Healey, which the Chief Justice has already mentioned, in which your Honour considered the scope of directors’ duties. This has become an oft-cited case and is now the considered wisdom on directors’ responsibilities. Your Honour was the Judge at first instance in the Essendon v ASADA litigation, which was one of the first nationally televised directions hearings and received intense media interest, and I can tell your Honour is still reflecting with enjoyment on the Essendon Football Club case.
Similarly, in Vodafone Hutchison Australia Proprietary Limited v ACCC, your Honour’s decision was widely reported and is considered an important contribution to competition law. In addition to your Honour’s contributions on the Bench, you were appointed Deputy President of the Australian Competition Tribunal and later President of that tribunal, a Presidential Member of the Administrative Appeals Tribunal, and part-time Commissioner of the Australian Law Reform Commission for over 10 years. This is, in fact, the second time I’ve farewelled your Honour this week, I should acknowledge. At a speech for the Australian Law Reform Commission on Monday, I spoke at some length about the work that your Honour has done on the Law Reform Commission.
Your Honour’s notable appointments demonstrate your work ethic and service and dedication to service, and your substantial and sustained contribution to law reform. Having touched on some of your Honour’s many achievements and contributions to the law, it’s no wonder that your peers have noted that your public service is deserving of accolades. Your Honour’s recent Australia Day Honours award as a Member of the Order of Australia for services to the Judiciary and to the law is certainly testimony to this, and it’s with great pleasure that I now turn to speak of a few of your Honour’s personal qualities.
I will let that pause. It’s the later speeches, your Honour, that are going to be more robust. Your Honour’s colleagues, family and friends speak warmly of your charismatic personality, commenting that your generosity, humility, loyalty and energy are central to who you are. I’m told that your Honour is generous to a fault. This includes having a generous spirit and being generous with your energy and time as a friend and, particularly, as a mentor, pouring your energy into supporting people at formative stages of their lives and careers. Your Honour’s ceaseless efficiency and energy has meant that you are known to be in several places at once.
As to your Honour’s talents outside of the law, I understand that you’re an accomplished pianist with a strong singing voice that rivals your infectious laugh. Somewhat fitting for this time of year, I am told that Good King Wenceslas is always a crowd favourite. I am also told that your Honour’s infectious laugh can often be heard across Melbourne’s many restaurants, leading your friends to quip that your Honour should have been awarded for your service to the hospitality sector as well as for your service to the law. Your Honour, on occasions such as this, one must finally address the question of what life will hold beyond the Bench.
I am sure that you will take the time to enjoy your many interests and that you will also spend time with your wife Judith and sons at your holiday house on the coast. Your Honour has certainly earned the right to enjoy these leisurely pursuits, though I have no doubt that you will continue to be active in public life and the many causes dear to you. Your Honour, it is a privilege to be here to celebrate your remarkable career.
Your professionalism, your dedication and your commitment to the improvement of the legal profession and judiciary are a truly wonderful example for us all. Your Honour, on behalf of the Australian Government and the Australian people I think you for the extraordinary contribution you have made to the administration of justice and wish you all the very best as you commence this new chapter in your life. May it please the Court.
ALLSOP CJ: Thank you, Mr Attorney. Mr Hay, President of the Victorian Bar Association and representing the Australia Bar Association.
MR S. HAY KC: May it please the Court. I appear on behalf of the Australian Bar Association and the Victorian Bar to farewell your Honour Justice Middleton upon your retirement as a Judge of this Court. I also acknowledge the traditional owners of the land on which we meet, the Peoples of the Kulin Nation, and pay my respect to their elders past and present. Your Honour’s service on this Court will be remembered as one of remarkable achievement, dedication, generosity and commitment.
The law has been your career for 45 years, but it almost lost out to journalism. At Camberwell Grammar you were ducted the school in 1970 and also the editor of the school magazine. Long-serving teacher Ian Mawson recalls a forthright and outstanding editor, reminding us that Sir Keith Murdoch, father of Rupert, once held a similar position at the same school. But journalism’s loss was very much the law’s gain. As we have heard, you graduated with a first-class honour’s degree from Melbourne University and also a first-class degree from Oxford, being the BCL.
Along the way your Honour accumulated various academic prizes, including the prestigious Winter Williams Scholarship that we have heard about. You were admitted to practice in the Supreme Court of Victoria also in 1976 and, as we have heard, served as an Associate to Sir Ninian Stephen at the High Court. You were called to the Bar in 1979 where you practised predominantly in constitutional law, resources law and commercial law. They were tough times, as six years earlier there had been 528 barristers at the Victorian Bar. When you arrived the Bar was at 870.
Accordingly, competition was fierce, but your Honour survived. In fact, your Honour absolutely flourished. You soon gained a reputation as a talented advocate who had the ability to quickly identify and isolate core issues, and you brought those same skills to the Bench, which has helped you stand out amongst your colleagues. Your generosity and dedication to the legal profession saw you serve for a total of 10 years on the Victorian Bar Council, commencing as Chairman at the age of 43 in 1995 and serving for 18 months. You also served in a host of other demanding positions which are far too numerous to list this morning.
Your Honour was fortunate to be invited by the late Alan Goldberg QC to join the 27th floor of Aitken Chambers with the late Ron Castan QC, Ron Merkel QC, Cliff Pannam QC and a rather fashionable and energetic junior by the name of Ray Finkelstein; they were memorable years. And, as things would have it, when you joined the Bench you were sitting with your former master Chief Justice Michael Black, who is here today, and those good friends who came across from chambers, Justices Goldberg, Merkel and Finkelstein. The band was back together again, but you were all on significantly different pay rates.
Your Honour’s appointment to this Court occurred in 2006. At a function to welcome you to the Bench you were described as a pathological extrovert; I can confirm that this description is apt. I am yet to attend a restaurant in Melbourne in your Honour’s company where the staff don’t know your name; usually, you know their names too, what’s good on the menu and how to play to the wine list. Also at your welcome you were described as Melbourne Football Club supporter waiting for their premiership drought to break.
As we all know, that breakthrough has occurred, but many of your colleagues remain uncertain about just how many of Melbourne’s premiership players you can actually name. Your Honour was appointed Deputy President of the Competition Tribunal in 2009 and became its President of that body on 1 July in 2016. In 2010 you were appointed a Presidential Member of the Administrative Appeals Tribunal and in 2012 as a part-time Commissioner of the Law Reform Commission, as we have heard.
It was once written of your Honour, if you can believe the media, that behind the enduring façade of good humour, warm personality, quick wit and generosity of spirit there is a finely honed intellect, a steely determination and an ability to do the hard work seemingly with ease. In this regard, stories of your remarkable ability to bounce back after a long night are legendary.
As we have heard, in your time at the Federal Court you have been involved in many challenging decisions, but none was more so than when within weeks of your appointment to the Bench you were asked to be a moderator in the great debate of the time, Are Judges Human? Held at the Essendon Club, your Honour’s opinion was not sought – rather, your ability to mediate, and calm the situation and keep the competing Barristers to the agreed timeline; this was not an easy task as most were loquacious and were well-primed for a fight.
Despite the obvious need for you to try and maintain impartiality during the debate, you were noticed to nod vigorously when Rachel Doyle SC, a recognised expert in discrimination law, made the point that Judges cannot be human because they come from the same gene pool as Barristers. It would be interesting to hear your Honour’s opinion now after 16 years on the Bench, some of which was spent hearing taxation and migration appeals. In 2019 you were asked to write about the role of the Trial Judge and, as always, you cut to the core. You said:
The basic functions of a Trial Judge will remain processing litigation and court operations; deciding individual cases efficiently, inexpensively and justly; interpreting the law to apply to new circumstances and technologies; supervising administrative decision-making; and applying the rule of law. Trial Judges must continue to demonstrate to the public that their decisions are rational, and fair and according to law. They must act according to the facts and in accordance with reality.
This was wise counsel that was praised at the time by your colleagues on the Bench, but at other times, perhaps, you have offered a more jaundiced view. You have said that:
Sometimes subtle criticism of Judges occurs. I observed that when I have decided a proceeding in which a commentator approves they refer to me as Justice John Middleton. When a commentator disapproves they just refer to me as Middleton, and the tone of the report is dismissive.
Your Honour has often been the subject of barbs. There was the time a newspaper referred to you as a long-serving Judge. There was no use of the words like eminent, learned or highly respected. Your Honour had every right to highlight this fact in an after-dinner speech you delivered some time ago. Perhaps to a slightly higher degree than other Judges, your Honour has long realised the role that the media plays in providing the public with accurate accounts of court proceedings.
In the Essendon Football Club case, which no doubt to your Honour’s great displeasure kept your Honour on the front cover of most newspapers for several weeks dealing with the supplement scandal, the media showed immense interest in the proceeding and the court processes that were involved. Your Honour allowed delivery of a judgment summary to be televised. You were later told by colleagues that it was interesting because even after 15 minutes no one quite knew which way your Honour would decide the case.
Your Honour’s carefully crafted summary was likened to a detective novel with the reader not knowing who the guilty party was until the very last sentence. I haven’t checked the ratings for the telecast, but I am sure they were appropriately high given your Honour’s involvement. Adam Baker has scoured the memories of many of your Honour’s colleagues from your days on the Bench and at the Bar.
Apparently, at a David Jones fashion event at an establishment in Sydney one day after Court – no one quite knows what your Honour was doing there – your Honour struck up a conversation with a rather cool-looking, dreadlocked American who was talking about a secret gig that he was to perform at The Domain at the weekend. When retelling the story, your Honour mentioned that he had a stage name relating to puppies or some other type of pet. As it turned out, the rapper had no idea he was talking to a Judge of the Federal Court, and the Federal Court Judge had no idea he was talking to the one and only Snoop Dogg. This is seen as being wholly consistent with your Honour’s genial nature and capacity to strike up conversations with absolutely anybody, from registry staff to international celebrities, and everybody in between.
Your Honour is also dedicated to your health, often saying, “A healthy Judge is a happy Judge.” For reasons that can only be guessed at, your Honour takes a magic liver potion each morning, and it seems to work. However, your dedication to health has sometimes been your undoing. We at the Victorian Bar all recall how you tore your bicep doing clap push-ups in 2019, at the age of 67. Musically, your Honour’s rousing baritone voice has entertained many, and you have even managed to relearn to play the piano during the pandemic lockdowns of 2020 and 2021.
Tim Dowling was a young lawyer recovering from a shoulder reconstruction and remembers fondly that every time you saw each other around the Court, your Honour would literally bump into him and grab him by the shoulder or give him a hug of friendship. Your Honour’s former Associate, Andrew Bailey, remembers your generosity of spirit and approachability. At any given function, your Honour could be seen giving advice to a Chief Justice and then, just a few moments later, giving advice to a young lawyer who had just started reading and was looking to make a go of it at the Bar. Other memories from Philip Crutchfield KC, Sam Rosewarne SC and Banjo McLachlan revolve around your relentless optimism, power of personality, and ability to see the best in people.
Turning rest days in a case from Friday to Monday because the Flower Drum was open on Monday is fondly remembered. Holding exercise classes at 12.15 so that everybody, including juniors, instructing Solicitors and support staff could still attend lunch is also fondly remembered. Of course, most of these incidents occurred whilst you were a Barrister. I pause here to note that in what might be your last – one of your last exercises of judicial power, your Honour has directed me to say to the Chief Justice that, to the best of my knowledge, for the last 16 years, both here and particularly while representing the Court at official conferences overseas, your record has been unblemished and blameless.
In fact, your record has been duly recognised. Earlier this year, as we have heard, you were appointed a Member of the Order of Australia for significant service to the Judiciary, the law and to professional associations. It was truly well-deserved recognition. Your Honour, I would like to conclude with just a few personal observations. It is rare to speak at the farewell of a Judge who has been such a fantastic mentor, genuine friend and staunch supporter as you have been to me.
I’ve known you for nearly 20 years. During that time, I’ve learned a great deal from you about how the law really works, about how to overcome obstacles that spring up in professional life, about how to look after your colleagues, and about how to have a great time whilst still doing the work to the highest standard, and my experience of your Honour’s friendship and support is far from unique at the Victorian Bar. I thank you for all the encouragement and the assistance that you’ve offered me. As retirement beckons and with more time on your hands after the challenges of the Bench subside, we are all looking forward to continuing our association with you. On behalf of the Victorian Bar, I wish your Honour a long and happy retirement with Judith, your sons and your granddaughters. I thank you for the first-rate service you have given to the Court and to the people of Australia. May it please the Court.
ALLSOP CJ: Thank you, Mr Hay. Ms Wolff, President of the Law Institute of Victoria, and representing also the Law Council of Australia.
MS T. WOLFF: May it please the Court. I appear on behalf of the Law Council of Australia, the Law Institute of Victoria, and the Solicitors of this State, to farewell your Honour as a Judge of this Court. I too echo the acknowledgement of the traditional custodians of the lands on which we gather, the Wurundjeri people of the Kulin Nation, and pay my deep respects to elders past, present and emerging. Your Honour, it is a privilege and a great pleasure to speak today on your retirement from this Court, not least because your Honour has made such a significant impact on generations of lawyers and Barristers in this State.
From your 16 years on the Federal Court and the past six years as President of the Australian Competition Tribunal, and in your longstanding role as Member of the Australian Law Reform Commission, your Honour has been a brilliant and inspirational jurist with impeccable reputation for fairness and legal acuity. Not only did you impart professional guidance, valuable wisdom and legal craft, but you did so effectively and with great impact and in fine style. You’ve been an authentic and open-minded jurist, enthusiastic in your love of learning, and you’ve brought much joy to all who have come before you and in your orbit. Inside the courtroom, you are the epitome of a respectful, highly attentive, keen and intellectually engaged jurist.
As a senior member of the legal profession, your Honour willingly shared the lessons gained from your deep knowledge of the law and legal experience, and also looked outwards and forwards, and ceaselessly inspired your peers and juniors alike. You have a deserved reputation, too, for celebrating brilliantly on every occasion. As we’ve heard, at the end of a big case or when successful decisions fell your way, or often just because, your largesse and, as we’ve heard, lunches are legendary. We are told that on days when your Honour is free, it is not uncommon for you to round up a sizeable chunk of the senior ranks of the Victorian Bar, ensconce yourselves at a fine restaurant, and effectively delete everyone from duty for the rest of the afternoon.
Your Honour leaves a tremendous legacy through your intense work as a Judge, through your practical demonstration of what it means to have a meticulous and enduring commitment to excellence, and when it comes to excellence it’s likely true to say that your Honour has learned from some of the very best. As we have heard from my learned friend, the President of the Victorian Bar, back in 1979, when you were just a fledgling lawyer emblazoned with First Class Honours from Law at Melbourne University and Oxford, you landed an associateship with the late, great Sir Ninian Stephen inside the High Court.
Later that year, you were admitted to the Bar and began reading with the Honourable Michael Black, just before he took Silk. His Honour later was Chief Justice, as we know, of this Court for 19 years, and he presided over your welcome ceremony here in 2006. Also sitting on the Bench at your welcome in 2006 was one of your great mentors, the late Alan Goldberg. It was Alan who, in the early 1980s, lured you away from a brief period at Latham Chambers and cemented your position as a Foundation Junior Member of Aitken Chambers. The 27th floor of Aitken Chambers, as we’ve heard, was better known as the Golan Heights. For 20 years at Golan Heights, your Honour flourished among a squadron of brilliant Senior Counsel: Alan Goldberg, Ray Finkelstein, Cliff Pannam, Ron Merkel, and the late Ron Castan.
Their focus was very much on Commercial Law, and the late 1980s and early 1990s generated a seemingly endless stream of high-profile commercial cases in Melbourne, extraordinary and controversial takeovers and mergers, followed by huge insolvencies and the collapse of major banks. Your Honour featured in one particularly prominent matter during those years, leading a team of Barristers in 1990 and 1991 to represent the State Bank of Victoria’s board and senior officers, and most of the directors of Tricontinental, as the Woodward Royal Commission examined the merchant banks collapse.
It was during the Royal Commission that your Honour was thrilled to learn that, at the age of 38, you had made Silk. As your commercial practice thrived, you received some very weighty briefs. In 1998 and 1999, you represented Esso Australia at the Dawson Royal Commission into the fatal explosion and fire at the Longford Processing Facility. Around the same time, you were Lead Counsel for the stevedoring group, Patrick, as it battled the Maritime Union, and 20 years ago you represented British American Tobacco in its protracted and controversial defence of damages claims brought by Rolah McCabe.
Your appointment to the Court brought a much broader range of work: tax, intellectual property, administrative law and more, and your Honour relished the challenge. One of the highlights of your time on the Bench was a civil penalty case brought by the corporate regulator against the directors of collapsed property group, Centro. In a decision that ran to 186 pages, your Honour, as we’ve heard, highlighted the simple premise at the heart of directors’ duties, which is that they need to read, understand and focus on matters before them and apply their knowledge, instead of relying exclusively on the company’s internal management, or even the advice of external advisers. In short form, directors had to ask the dumb questions. That decision is still used as a crucial teaching tool in corporate law and in directors’ courses today.
Your Honour’s instinctively curious nature is evidenced by your breadth of activities in law. As a member of the Australian Law Council in the mid-1990s, you helped establish the uniform conduct laws for barristers throughout Australia. And we know your Honour great delight in working with the Australian Law Reform Commission and the Australian Competition Tribunal, where you worked alongside non-legal professionals; topnotch economists and others, who were experts in their own fields and able to view the same problems through a different prism. On the Competition Tribunal you presided over the complex tussle by coal producer, Glencore, regarding its terms of access to the Port of Newcastle. The tribunal’s decision of October 2019 was appealed to the Full Federal Court, but the High Court reinstated your Honour’s decision a year ago. In another high profile matter, this time in the Federal Court, your Honour overruled the competition regulator’s decision to block Vodafone’s merger with telecommunications rival, TPG. And the Law Reform Commission, when you were there you worked on copyright matters in the digital economy, third party litigation funding in class actions, and a review of Commonwealth laws to ascertain their consistency with traditional rights and freedoms.
On top of this intellectual curiosity and collegiality, your Honour has always demonstrated your craft with boundless optimism, warmheartedness, and a genuine interest in other people and what they are doing Your Honour has left a profound legacy and made an immense contribution to furthering the practice, the culture, and the code of the legal profession. Your Honour has planned carefully for your retirement, none of that riding off into the sunset as the music fades and the credits roll. Among other things, we understand you will be doing some teaching at the University of Melbourne, and we expect you will take every opportunity now to travel a little bit more. In closing, we thank your Honour for your extensive contribution and service to the law and to the profession. We warmly wish you and your family the very best as you leave the court. May you enjoy a long, satisfying and rewarding, thoroughly wonderful retirement. May it please the court.
ALLSOP CJ: Thank you, Ms Wolff. Justice Middleton.
MIDDLETON J: Thank you. Your Excellency, Chief Justice, your Honours, distinguished guests, ladies and gentlemen, family, friends and colleagues – I think that covers the field with some duplications – I thank you all for your presence here this morning.
The court is honoured and I am deeply grateful and delighted that so many people have given up their time to attend this morning to witness my departure from the bench, including many people that have been already addressed: Her Excellency Linda Dessau; her husband, Mr Tony Howard; Chief Justice William Alstergren and his wife, Kate; former governor Alex Chernov and his wife, Elizabeth; The Honourable Michael Black, former Chief Justice of the Federal Court of Australia. Former High Court judges: The Honourable Ken Hayne; The Honourable Susan Crennan; The Honourable Patrick Keane, accompanied by Dr Shelley Keane, his wife; The Honourable Geoffrey Nettle. The Honourable Karin Emerton, President of the Court of Appeal, the Supreme Court of Victoria. Existing and retired members of the judiciary. Ms Rowena Orr, Solicitor-General for Victoria; Mr Peter Dunning, President of the Australian Bar Association; Mr Allan Myers, Chancellor of University of Melbourne; and Dr Paul Hicks Headmaster of Camberwell Grammar and his wife, Susan. .
Chief Justice, Mr Attorney, Mr Sam Hay, Ms Tania Wolff, I am most grateful for your remarks and expressions of goodwill from those who you represent.
These remarks have been delivered by people who are obviously fearless, clearly unbribable, although I’m not entirely sure they are friends of the truth, the whole truth and nothing but the truth, but then they are not under oath. Then, after all, the retirement of a judge is an occasion for hagiography and perhaps the opportunity for flattery and half-truths, although I’ve always thought it may be that flattery from the profession is better suited to speech on the appointment of a judge, rather than the retirement where you face a long prospect ahead praise, a little sycophantism, would appear more opportune than candour.
The other thing I have noticed is there seems to be more of a celebration of my retirement than there has been when I was elevated to the bench. I can understand some of my colleagues who have chambers in close proximity to me being very keen that I go. I am apparently have a rather loud, raucous, wicked laugh. I would call it infectious. And then Justice Mordy Bromberg has for years wanted me to retire so as to move into my chambers.
In Australia there is a constitutional rule that no judge may serve in federal judicial office beyond the age of 70 years. Other jurisdictions have different rules on the topic, but these rules all stand as an implementation of a higher principle, namely, judges should be subject to a mandatory retirement at a fixed age to avoid the cost of overstaying, such as a result of mental decrepitude in office. I am thus leaving to save the Commonwealth unnecessary expenditure and the Chief Justice possible embarrassment, or perhaps I should say further embarrassment.
I do not propose to offer any parting observations of my views about the current state of the law, or the judiciary, or the system of judicial administration. Everyone here will be aware of how fortunate we are in Australia to have a judiciary which is independent and commands the respect of the community for its judicial decisions. It underpins our democratic structure. My judicial colleagues are exemplary in their adherence to their oath of office and their dedication to their judicial responsibilities. I will miss our close association and working together.
There have been so many people that have assisted me along the way as a student, associate, barrister, judge, but it would trespass on too much time to identify them individually. You all know who you are, and I hope you will accept this as a public expression of my gratitude for your encouragement, advice and friendship.
I would like to acknowledge the Bar where I spent 26 or so enjoyable and fulfilling years. I had the good fortune to share my time at the Bar with my readers and many junior barristers who assisted me whilst I was at the inner bar Pamela Tate, who is here today, was my last reader, who upon my taking silk needed to find another mentor. She moved to read with Geoffrey Nettle, a former High Court judge, but I like to think it was my grounding and not his that was the basis for Pamela’s appointment as Solicitor-General for the State of Victoria and then to the Court of Appeal of the Supreme of Victoria.
The bar occupies an essential role in the administration of justice. In some ways, by their training ability, a barrister’s contribution to the whole system of justice is more significant than a judge. Whilst on the subject of barristers, I would like to apologise. I want to apologise to all those counsel who did not have the ability to present in a coherent manner all their arguments before I intervened. I often resolved to restrain my impetuosity, but when the proceeding was in full flight and my excitement of the prospect of full debate got the better of me, off I went. I am sorry.
We should not forget the solicitor branch of the profession. The work of a solicitor in the administration of justice is essential and of high importance.
I would like to say something in recognition of why I’m sitting here, even if for not much longer. Front and centre is my wife, Judith: a wonderful, wife, mother and, more recently, grandmother. Also an experienced and well-respected parliamentary counsel in her own right over many years. Judith and I have been married for 46 years. Now, I can only speak for myself, but I have been very happily married. Poor Judith, she is known by my friends at St Jude for having to put up with me. Our sons, David, Thomas and Tony, have developed into fine young men, and we are so proud of them. Two are lawyers who are here today, one representing each branch of the profession, and I apologise for that shadow that you will have hanging over you, but I am confident you have already and will forge ahead with your own personalities and careers. David, the non-lawyer amongst our family, cannot be here today because he’s actually working. So far two of my boys have inherited their father’s good fortune and managed to marry or become engaged to two outstanding people, Laura and Camilla. And Camilla has just been told she passed the Bar examination yesterday, so congratulations.
Throughout my time in the Court my Executive Assistant has been Ms Susi Ivandic. She has put up with my sometimes rowdy Associates and efficiently carried out the many tasks that are required in running a smooth docket and my chambers. Her friendly demeanour has endeared her to all. She, selflessly, anticipated my needs and those of others. She has been the best EA any Judge could wish for –picked for me by Alan Goldberg who was a mentor of mine and a very good friend.
I have had the considerable assistance of 18 fine Associates. Each Associate has brought different skills and personalities to my chambers. Each has worked assiduously to ensure that the drafts of my reasons, and perhaps even their own, have emerged in respectable form. I am pleased to be able to call them friends, and I look forward to following their developing professional careers.
I have often wondered what they think of me, and I found out recently when we celebrated my retirement recently with my EA and Associates.
In a presentation made by the most senior Associate present, Banjo McLachlan, he said this:
I’ve heard it said that associateships are like pizza - even when you have a bad one it’s still pretty good. And we all know that an associateship with John is like a pizza sprinkled with Lindt balls and Dom Perignon - a bit unorthodox but filled with all the good stuff and you’ll probably wake up with a hangover and diabetes.
I do not think that was a bad review, if I do say so myself.
During my 15 years on the Bench, the Court Officers, Registry staff, Security staff, have been unfailingly courteous and helpful; I thank them all. I am extremely grateful to Sia Lagos and her team at the National Operations Registry for the assistance they have provided me. The arrangements made this morning provide a perfect example of the attention to detail and the efficiency of the Court staff,
in this case under the help of Dimitra Argyros.
I have also been most fortunate to have served under three outstanding Chief Justices – Michael Black, as you have heard, I read with when I first came to the Bar; Patrick Keane, co-student at the University of Oxford and good friend for many decades, along with his wife Shelley; and James Allsop, judicial colleague when I first came to the Bench and also good friend – each an intellectual leader of the Court, each with the necessary skills to deal with the inevitable major administrative and structural issues that arise, and each has been closely attentive to the welfare of the Judges, the Court staff and the litigants who come to this Court.
Whilst looking back, for the moment, I am glad that Dr Paul Hicks, Headmaster of Camberwell Grammar, who was appointed when I was Chairman of the School Council and was at my welcome, and his wife Susan are here today, as is my friend Alan Myers, Chancellor of University of Melbourne where I spent some 10 years on the University Council. I enjoyed immensely my association with both these educational institutions; both have thrived under Paul and Alan with them at the helm.
As has been mentioned, I have also had the opportunity to work as part-time Commissioner of the Australian Law Reform Commission under the excellent leadership of Professor Ros Croucher and Justice Sarah Derrington. The Australian Law Reform Commission has a very important role to play in the development of law in Australia, and it has been a privilege to work with the very many talented and enthusiastic young lawyers at the Commission and in recent years work with Sarah Derrington on many significant references.
I would also like to acknowledge the role and work of the Australian Competition Tribunal where my time as President expires at the same time I finish with the Court. The Tribunal has a significant role to play in the application of competition law, and I thank the Judges and Lay Members who have been serving on that Tribunal and Registrar Tim Luxton for his valuable assistance.
Judges are sometimes subject to public scrutiny and criticism. When I handed down the penalty decision in the Centro proceeding (Australian Securities and Investments Commission v Healey (No 2), there was a concern in some quarters that the penalty was perhaps too lenient. This was graphically displayed by a cartoon in one of the daily papers, depicting myself –in itself, very unflattering – with a person, presumably a Centro director, being bent over my knee with his pants down, being spanked by a feather, the caption being, “You’re a very naughty director.”
Now, some of my colleagues consider that I have been the recipient of too much media attention, and they feel that this cannot be accidental. In the Essendon Football and Australian Sports Anti-Doping Authority case (2014) dealing with the so-called supplements saga, remember that, for those who are not from Victoria, Aussie rules is a religion, so it did get a lot of press in Victoria where there was immense interest in the proceedings. Thus, I allowed the first case management hearing to be televised, which turned out not to be riveting viewing, and the delivery of a summary of the judgment.
I just want to share you what the press thought of the case management hearing, because there was a sports blogger commentator, Titus O’Reily, who made these observations about the whole event, and it went along these lines:
- A lot of middle aged white guys talked and talked and talked.
- While banging on for hours, they all made a ridiculous amount of money.
- At no point did someone say ‘you want the truth?’ which was the only reason I was watching.
- I learnt that court is really boring and nothing like My Cousin Vinny or Ally McBeal.
- August 11 will be the trial to decide if the joint investigation (now alleged) was illegal. It will take three days, but if you watch live, it will feel like 300 days.
- There will be another directions hearing on July 2nd because a few of the lawyers need to cover third term private school fees.
- Lawyers didn’t wear robes or wigs which I thought was a real shame and detracted from the event.
And finally he said:
- I didn’t hear the Essendon theme song at the end, so I assume they lost.
So with these poor reviews and this sort of criticism, you’re probably asking, “Why be a Judge?”
When I was appointed in 2006, the answer to that question to me was very clear. Despite my well-prepared, articular arguments, erudite and ebullient presentation, Judges kept getting it wrong. I thought, “Surely, I can do better.” Just like recent Silk applicants, you applied because, over and over again, your leaders would make a complete mess of the case, ignoring your tugging on the gown or handing up Post-it notes to correct errors, or having to revisit the whole case again on reply if you were given that opportunity.
The late Sir Gerard Brennan, though, posed this very question in 1996, “Why be a Judge?” After examining the essential elements of judicial functions and the manner of performance, Sir Gerard concluded, and I quote:
… In a complex society, justice would be unattainable without the sophisticated skills and unquestioned integrity of the judiciary. The high importance of the judicial office makes it a privilege to be invited to the bench; the responsibilities of the office create a continuing challenge to proper performance. The trust reposed by the community in the judiciary is an enduring comfort. The stimulus of judicial work is enhanced and its burdens lightened by the support of other judges whose character, intellect and industry command our unfeigned respect. The satisfactions of judicial life of necessity flow from an inner conviction of the service of society in a pivotal role, from the satisfaction of the aspirations of litigants, of the profession, of the public and most importantly, of oneself, and from the mutual esteem of judicial colleagues. These are the considerations, I suggest, that give the true answer to the question: Why be a judge?
Looking back on my 15 or so years and having the chance to reflect, I think Sir Gerard Brennan’s comments are still applicable and provide a true answer to the question, “Why be a Judge?”
Just as at the Bar, I have also been so lucky to have enjoyed and been fulfilled by the many, many aspects of judicial life and the collegiality of all my colleagues. Over the last five years or so, many people have kept asking me, “When are you going to retire?” with the hope in their eyes. Well, I can be quite definite now: midnight, 25 December 2022.
I will not be looking back. I plan to reconnect with the University of Melbourne to teach; have a stint as a Judge in residence; continue to get involved in various aspects of law here and overseas and pursue some more leisure and travel time. If one of my sons has his way, providing more frequent free babysitting services.
I am proud to have been a Judge of the Federal Court of Australia. I again thank you for attending today, and for so many of you who, in different ways, joined me and assisted me on my journey to this Court and in the discharge of my financial oops – meant judicial responsibilities. To adopt a phrase from a song in the musical “Wicked”, because I have known you, I have been changed for the better. On that note, it is now time to say goodbye from the Bench.
ALLSOP CJ: The Court will now adjourn.