Ceremonial sitting of the Full Court to farewell the Honourable Justice Rares

Transcript of proceedings




9.31 AM, TUESDAY, 14 NOVEMBER 2023

MORTIMER CJ: A warm welcome to you all. We are on Gadigal Country. On behalf of the Judges, Registrars and staff of the Federal Court I offer our respect to all Gadigal People and their elders and the people of the wider Eora Nation especially the elders of that nation. On this day of mixed emotions, especially for Justice Rares, it is terrific to see such a turnout for this farewell. I acknowledge the many distinguished guests who are here today, including serving and former Justices. Your collective presence is a testament to the affection and respect of the wider profession for Justice Rares. Joining us for the ceremony are members of Justice Rares’ family and friends and invited colleagues. This is an opportunity publicly to recognise the tremendous service shown by Justice Rares over almost 18 years.

Justice Rares, since your appointment in February 2006 you have worked across the jurisdictions of this Court with energy and dedication. You have also served on the ACT Supreme Court and on the Supreme Court of Norfolk Island. You have held many positions of responsibility within the Court as a coordinating Judge in various practice areas and on many of the Court’s committees. You are always willing to help if asked, and we are all grateful for your willingness to contribute to the work of the Court. Externally, you have been a prolific speaker, writer and contributor on behalf of the Court. You served on many national bodies such as the Consultative Council of Australian Law Reporting and you were the president of the Australasian Institute of Judicial Administration from 2019 to 2021.

We are grateful for your work especially in the area of admiralty and maritime law, including a very recent visit to Papua New Guinea which I know from my own visit there shortly afterwards was still being talked about amongst the local Judges and members of the profession as a highlight of their year. Others will no doubt mention many of your prominent and noteworthy decisions. Your decision in Ashby v The Commonwealth in 2012 concerning Mr Ashby’s claims of sexual harassment when he was a political adviser to the Speaker of the House was conducted before the Court’s YouTube channel was up and running; perhaps just as well. Your trial decision in the hard-fought Native Title claim by the Yindjibarndi People in the Pilbara in Western Australia was a decision which developed the law about when native title claimants might be found to have exclusive possession of land.

And more recently, I mention your misfeasance in public office decision in Brett Cattle Company where you began your reasons with the line:

Otto von Bismarck is often credited with coining the aphorism ‘Laws are like sausages. It is better not to see them being made’.

However, this celebration of your particular perspective on and contribution to the law would be incomplete without reference to the Magna Carta. Your success in The Queen v McConnell in the New South Wales District Court in 1985 as a junior barrister where you invoked the Magna Carta in arguments that persuaded the Court to acquit your client and discharge him on the basis of delay in bringing the matter to trial set the scene for your regular return to that fundamental document throughout your career as a Judge. Justice Rares, the fondness and respect of your former and present colleagues on this Court for you has been expressed to me repeatedly over the last few months as your retirement has approached. We will miss you. And the Sydney registry will not be same without you. I now call on Mr Blunn for the Australian Government Solicitor representing the Attorney-General for the Commonwealth. I invite you to speak on behalf of the Attorney-General, Mr Blunn.

MR M. BLUNN: May it please the Court. I 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 peoples here today. I have the privilege on behalf of the Attorney-General, the Honourable Mark Dreyfus KC, MP and the Australian Government to formally recognise your Honour’s services as Justice of the Federal Court of Australia and to thank you for the significant and lasting contribution your Honour has made to the Commonwealth through this Court. As the Chief Justice observed, your Honour retires after 18 years of dedicated service. The length of your Honour’s service is somewhat startling to me, having had the fortune of briefing your Honour as counsel to appear before this Court. Today is the culmination of a long and distinguished career on the Bench. You have devoted yourself to the improvement of our justice system, the law and the legal profession, both within Australia and our region. That so many of your colleagues in the judiciary and legal profession are here today is a testament to the high regard in which you are held.

May I particularly acknowledge the Honourable Chief Justice William Alstergren AO, the Chief Justice of the Federal Circuit and Family Court of Australia; the Honourable Chief Justice Andrew Bell, Chief Justice of the Supreme Court of New South Wales; the Honourable Deputy Chief Justice Robert McClelland AO, Deputy Chief Justice of the Federal Circuit and Family Court of Australia; the Honourable Deputy Chief Judge Patrizia Mercuri, Deputy Chief Judge of the Federal Circuit Court and Family Court of Australia; the Honourable James Allsop AC, former Chief Justice of the Federal Court of Australia; the Honourable Justice Julie Kathryn Ward, President of the Court of Appeal of the New South Wales Supreme Court; the Honourable Justice Derek Price AO, Chief Judge of the District Court of New South Wales; Mr Dennis Wilson, spouse of Her Excellency the Honourable Margaret Beazley AC, KC; and, finally, other current members of the judiciary; members of the legal profession and distinguished guests.

Perhaps most importantly, can I also acknowledge the presence of your Honour’s family who proudly share this occasion with you, in particular your wife Rolene, your sister Jackie, your son Quintin, your daughter-in-law Scarlett and your granddaughter Ottilie and other members of your family. Indeed.

I’m told that before your Honour finished school, you had set your sights on becoming a solicitor, a barrister and a Judge. Job done. Speaking today offers me an opportunity to talk of your Honour’s many achievements. After graduating from the University of Sydney with a Bachelor of Arts and a Bachelor of Laws, your Honour worked as a solicitor at Dudley Westgarth and Co for two years. In 1980, your Honour was called to the New South Wales bar. In 1993, your Honour took silk. At the bar, your Honour practised extensively in the areas of defamation, media law, trade practices, commercial and corporations law, administrative law, maritime law and aviation law. Your colleagues at the bar knew you to be an extremely hardworking, generous and considerate colleague who was a formidable advocate. Your Honour was also proactive in using mediation as a means by which your clients might settle disputes, mindful of your Honour’s obligations to the Courts. Your Honour’s intellectual rigour and meticulous preparation was a feature of both your time at the Bar and as a Judge of this Court. In a speech given in 2002, you said:

To be a Barrister is a privilege. To fight someone’s case to establish their right to be equal before the law is an honour.

your Honour’s work has reflected a commitment to that privilege. Your Honour argued several cases in the High Court before taking silk. One such case, Tanning Research Laboratories v O’Brien, still stands as a leading authority on the enforcement of international arbitration awards in Australian domestic law. In addition to the day-to-day of legal practice, your Honour has been a significant contributor to the success and good function of the profession. Between 1995 and 2005, your Honour joined various Bar Committees, working groups and was a member of the Judicial Commission of New South Wales and Chairman of Counsel’s Chambers Limited. Again, as noted by the Chief Justice, in 2006, your Honour was appointed as a Judge to this Court. In 2007, you were also appointed as an additional Judge to the Supreme Court of the Australian Capital Territory, and you were appointed as a Judge of the Supreme Court of Norfolk Island in 2008.

Your Honour’s work ethic continued from the Bar to the Bench. In this Court, your Honour is well-known for the number of cases you hear each year. Practitioners in this Court, including me, can give testament to your Honour’s commitment to managing the cases in your docket and doing the work that is required to discharge your function. In addition to devoting your formidable capacity to manage your docket, your Honour also continued to join new committees, taking on leadership roles as President of the Governing Counsel of the Judicial Conference of Australia,

President of the Australasian Institute of Judicial Administration and Chairman of the Consultative Council of Australian Law Reporting.

I know first-hand that your memory of the volumes of law reports is remarkable, knowing the exact citation to the page of an authority you reach for. To this day, I have a clear memory of this capacity being, I suppose, kindly described as “demonstrated” in conference in your chambers. I have no doubt that your collection of reports and books has continued to grow over the last 18 years, and I expect making arrangements for the relocation of your collection will be a significant undertaking. On the Bench, your Honour built a reputation as an exemplar of practice in the traditional vein of journalist law. However, your Honour continues to be recognised, again, as noted by the Chief Justice, as a leading specialist in maritime and admiralty law.

A leading thinker, your Honour has published on international conventions, delivered lectures at Australian and overseas universities and collaborated with members of international Supreme Courts. Your Honour has been included in the Comité Maritime International in Montreal and served as an Admiralty and Maritime National Coordinating Judge of the Federal Court and as the New South Wales Admiralty and Maritime List Judge. I’m told that, for approximately 15 years, nearly every admiralty and maritime matter filed in New South Wales has been docketed to your Honour, with your Honour’s Friday case management list serving as a meeting place for shipping Lawyers of New South Wales and Sydney.

As I’ve noted, your Honour’s career has been marked by capacity for work and for making an enduring contribution to the community and to the profession. Your Honour had a notable pro bono practice while at the Bar. You also had a commitment to tutoring new members of the Bar. As a Judge, your Honour’s commitment to the development of practitioners has continued with your Associates. AGS has had the good fortune of working with some of your Associates after they’ve left your Honour. And of course, a number of Lawyers who have had the fortune of working with you at the Bar have gone on to build very impressive careers, including the Honourable Andrew Bell and the Honourable Jackie Gleeson, Justice of the High Court. Your Honour’s commitment to teaching will continue in your capacity as an adjunct Associate Professor at the University of New South Wales.

I’m reliably told and have some distant memory of stories of your Honour being a marvellous chef and baker, with friends being treated to dishes including goose and great soup. Punctuation is critically important in that last sentence. Your Honour’s skills baking freshly powdered treats is matched, I understand, by your ability to navigate freshly powdered ski fields, mastering black runs as a form of relaxation. I’m also told that your Honour’s talent as a chess player, with friends and family still waiting to win a game. Your granddaughter might take you on in the near future, your Honour.

Your Honour, it has been a privilege for me to be here today to celebrate your remarkable career and contribution as a Judge of the Federal Court, including because I have had the privilege of doing my work as a Solicitor both with you as counsel and before you in this Court. Your professionalism and unwavering commitment to the improvement of the justice system, judiciary and the legal profession are an example. Your Honour, on behalf of the Attorney-General and the Australian Government, I thank you for the extraordinary contribution you’ve made to the judicial branch of Government and wish you all the very best in your retirement. May it please the Court.

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

MR P. DUNNING KC: Justice Rares, Chief Justice Mortimer, Justices of the Federal Court, distinguished Justices of other Courts, distinguished guests all, it is, Justice Rares, my privilege and pleasure in equal measure to offer the congratulations and gratitude of the Bar nationally for your Honour’s nearly two decades of exceptional service to this Court and to the Australian community more generally. It is a remarkable act of public service that we recognise today, and rightly that we do so. My members are grateful for many things of your Honour’s long service on this Court, but if I could single out three of them. Your Honour’s energy has already been touched upon, and rightly so, but in Court, I can attest it was matched by the rigour that you imposed upon yourself and your required of those appearing before you, but never at the expense of courtesy. Your Honour was a pleasure to appear before. We were better Barristers for it, and there’s little more that one could ask in a Judge.

It is also appropriate that I note the important role your Honour plays, as this Court more broadly plays, in bringing peace with our First Nations Community, and your Honour has a significant legacy in that regard, touched upon by her Honour the Chief Justice a little earlier. Your Honour has, as has been mentioned, maintained a close association with the Bar and were, ultimately, one of its champions. It’s also appropriate that I note your Honour significantly contributed to the welfare of Judges, a cohort of people who have plenty of natural critics but not too many natural supporters, and the important role that your Honour has played there ought be acknowledged outside the judiciary.

Finally, Justice Rares, nobody achieves the success your Honour has or makes the contribution your Honour has without the love and support of their family and friends. Your family and friends should feel justifiable pride in the achievement that is being recognised today. However, your Honour is ultimately the product of the Sydney Bar, and it’s appropriate that the bulk of the expression of the Bar’s enthusiasm should come from my friend Dr Higgins. So, Justice Rares, on behalf of the Bar nationally, we salute your service and have great affection for your time in the Court. May it please the Court.

MORTIMER CJ: Thank you, Mr Dunning. Dr Higgins, President of the New South Wales Bar Association.

DR R. HIGGINS SC: May it please the Court. I acknowledge the Gadigal People of the Eora Nation, the Traditional Owners of the land on which we meet. I pay my respects to their Elders, past and present. I extend that respect to First Nations people present today. Chief Justice Mortimer, it is an honour to speak today on behalf of the New South Wales Bar Association to mark Justice Rares’ retirement from Court and from a distinguished judicial life. Justice Rares, on behalf of the Barristers of New South Wales, thank you for your long and dedicated service to the administration of justice. For those of us who do not recall the New South Wales Registry without your Honour present, today is a very significant day, just as your service has been truly significant. On the Bench, your Honour’s unaffected joy for the law has ben manifest to all who appear before you. It had certain salient indicia likely familiar to every Barrister here today: first, the committed-to-memory citations of any and all cases from the Commonwealth Law Reports. It has been rumoured that no one in Australia, save perhaps for the Chief Financial Officer of Thomson Reuters, is more excited than your Honour upon the publication of a new volume of the CLRs. Second, your Honour’s prodigious capacity to issue ex tempore judgments. Your Honour’s first judgment was delivered in that manner. Your Honour’s judgment most recently published online as of today was delivered in that manner. Of 1205 searchable judgments of Justice Rares, 688 contain the phrase:

Revised from the transcript –

indicating that more than 50 per cent of your Honour’s judgments have been given ex tempore. It is fitting that today’s format allows your Honour to speak last and immediately after counsel have completed addressing. Your Honour’s capacity to ex tempore was never at the cost of the quality of the reasons delivered. As your Honour observed in a 2010 extrajudicial article what is a quality judiciary, and I quote:

Cases are not mere statistics. The real work of the courts and society cannot be totalled up and measured up by arbitrary business tools, such as key performance indicators. Each case before a court of law involves a controversy that the court must resolve as the institution in which every member of the community must have confidence. That confidence can only be earned from a society by a judicial system that adheres to the core values that reflect the rule of law.

Your Honour was able to ex tempore as frequently as you did because you had done the work beforehand, closely grasped the issues and felt able to determine the matter expeditiously while wholly judicially. That brings us neatly to the third indicium, which is the rigours of a Rares case management conference. An attentive barrister appearing at such an event immediately checked to see what authorities were lined up on the Bench to prefigure the issues that your Honour had identified and the questions that might be asked. Counsel at such a hearing was well-advised to be ready to identify all of the issues in dispute, a sensible procedural timetable to bring those issues to a timely hearing. Any infelicities in the pleadings and how they might immediately be ameliorated and an informed anticipation of the evidence to be filed in the case. They were also advised to be sufficiently well-slept to be able to call upon all of their native intelligence and all of their legal learning as quickly as was likely to be demanded.

Fourth, your Honour’s great care and consideration for self-represented litigants. That care was the product of an understanding that such litigants may have a limited ability to identify legal issues or navigate procedural interstices. On such occasions, your Honour always patiently managed the courtroom to avoid any disadvantage to the self-represented litigant while remaining at all times neutral. That did not mean, however, that your Honour would suffer interruptions, and so in one admiralty matter in which a self-represented vessel owner repeatedly spoke out of turn, your Honour politely reminded him that, while he was the captain of his vessel, you were the captain of the courtroom. The seas were calm thereafter.

Fifth, the subzero temperatures in your Honour’s courtroom 19E. This perhaps was directed at keeping everyone at court alert. However, it is quite possible that your Honour leaves the bench today looking quite as well as you do because you’ve been partially cryogenically frozen for the past 17 years. These judicial callsigns, of course, speak only to part of your Honour’s career. As a silk, your Honour’s broad interest in the law enabled you to shape a general practice in handling matters involving defamation, corporate regulation, insolvency, general commercial disputes in addition to your Honour’s specialities in admiralty and maritime. Juniors came to know your Honour’s meticulous attention to detail and your practice of minutely editing drafts in the writing and rewriting of submissions. As a tutor, your Honour was generous and inclusive, assisting readers by recommending them to instructing solicitors and ensuring that they received substantive briefs.

As senior counsel leading juniors, your Honour was a model of the importance of listening both in long client conferences and while witnesses gave evidence. Together with your capacity for taking verbatim notes, those abilities served your Honour well in cross-examination, and those skills, in turn, allowed your Honour to handle a vast range of matters on the Bench from the ticks and crosses of referendum voting slips to Peter Slipper to the Yindjibarndi native title proceedings. While in judicial office, your Honour has shown great care for your associates. This is evident in the large group with whom you stay in touch by hosting homecooked dinners for associates and their partners. These are four course meals for roughly 40 guests prepared by your Honour from scratch and infused with culinary skills learned in cooking courses in France.

Your Honour has traditionally declined any help with the catering on the basis that the point of the gathering is personally to serve your associates to show gratitude for them having done so for your Honour on the court. As a colleague to your brother and sister judges, your Honour has always been concerned for the welfare of others and sought in particular to ensure that new judges are well supported by enthusiastically sharing your knowledge of the court’s work. A long-time chess aficionado, your Honour knows well that before one starts a game, one must study the endgame above all else, and it is clear that your Honour has the judicial endgame well planned. You leave the Bench to various fresh beginnings. Your recent marriage to long-term partner, Ro, a fresh interest in Hebrew and a pending monograph on estoppel with your son, Quintin all nimbly commence your Honour’s third act. Justice Rares, the barristers of New South Wales wish you fulfilment in everything you now choose to do. May it please the Court.

MORTIMER CJ: Thank you, Dr Higgins. Mr Murphy, President of the Law Council of Australia.

MR L. MURPHY: May it please the Court. I also respectfully acknowledge that we are meeting on the traditional land of the Gadigal People of the Eora Nation, and I pay my respects to their elders, both past and present and elders from other communities who are here this morning. I also acknowledge the Honourable Debra Mortimer, Chief Justice of the Federal Court of Australia, Mr Matthew Blunn, the Australian Government Solicitor, President to the Australian Bar Association, Mr Peter Dunning KC, President of the New South Wales Bar Association, Dr Ruth Higgins SC, and President of the Law Society of New South Wales, Cassandra Banks. All judicial offers, dignitaries, family, friends, and most of all, your Honour. I am honoured to appear on behalf of the national legal profession, to congratulate your Honour on an exemplary career, and to thank you for your commitment to the law, and the service of the public. A judicial appointment is, without question, one of the truest examples of public service. It is a genuine service, being worked on for the good of the public and wider community. Your Honour’s 18 years of judicial service is, as we have heard, a real example of this.

During your Honour’s swearing in ceremony in 2006, your Honour said – and I quote – “Our Constitution guarantees that judges and courts are independent, not only from the Parliament, but from the executive, and also all extraneous influences, including public opinion, and the media. The only influences upon courts can be the requirements of justice, which must be done, and must be seen to be done, according to law. I have long had an interest in judicial independence, because it is a bulwark of liberty; it’s counterpoised as the principle of open justice, that is, the requirements that courts exercising judicial power must sit in public, exposed to full scrutiny by all.”

Your Honour, an independent, impartial, honest, and competent judiciary is, as you stated in 2006, integral to upholding the rule of law, and it also strengthens public confidence in our system, and ensures the dispensing of justice. It is a cornerstone principle of which effective, functioning democracies are founded. When compromised to any extent, communities no longer prosper, and more often, fall into decay. I thank your Honour for your steadfast commitment over nearly two decades of public service to this cornerstone principle. The Australian community has benefited from your commitment. The many other contributions that your Honour has made to our community and profession must also be acknowledged. The details of those contributions have already been addressed and will be touched on further by Ms Banks. I will not repeat them. I did, however, want to refer to one and that is your time, as we have heard, as president of the Australasian Institute of Judicial Administration. Your Honour led the institute through a period of immense change, including the impact of COVID. The institute played an important role in considering how Courts and Tribunals could manage and deal with the effects of the pandemic. And for this, the Australian community thanks you. Your Honour, the nation owes you a great debt. On behalf of the Australian profession, I thank you for your tireless and outstanding service and I wish you well for your retirement. May it please the Court.

MORTIMER CJ: Thank you, Mr Murphy. Ms Banks, President of the Law Society of New South Wales.

MS C. BANKS: May it please the Court. I too acknowledge the Gadigal of the Eora Nation and I pay my respects to their elders past, present and emerging. Your Honour’s time on the Bench has been described as razor sharp, cutting across all reaches of the law leading to solutions often others could not see, a true legal generalist. Your Honour was described by those who know you as having always been fascinated by the law, legal precedent and its development, dedicated to the law since your student days. In preparation for this speech today, my research has found many perspectives that informed this. Some commented on your near photographic memory, your easy ability with vast volumes of legal knowledge. Your Honour has been known to stand up, pick a book off the shelf and start reading aloud the exact paragraph your Honour wanted to refer to, an ability described succinctly by one barrister as formidable.

Others went back further and spoke about how your Honour respectfully maintained the cab rank rule in your practice as a barrister while undertaking much pro bono work. Another mentioned the fact that every wall in your barrister’s chambers had bookshelves. Even where there was a window, more bookshelves. And because your Honour couldn’t fit enough books, you started trying to employ the roof. On the Bench, despite the inconvenient view from your corner chambers, your Honour still employed the books there to similar and great effect. As one person has put it, “He has his own mental control F when trying to find something”. One small chink the armour was made evident, though, in terms of work practices on the Bench. I’m told your Honour’s handwriting is best described as hieroglyphics. I have it on authority that your Honour will tell anyone who would listen or rather anyone who complains that your handwriting is beautiful. Although I’ve also heard each one of your associates needed to learn an entirely new script.

In February 2006 your Honour was sworn into the Federal Court of Australia. This was something that those who knew your Honour at the Bar or for most of your life were not surprised by. As a Judge, your Honour has been described as active, engaging with everyone in Court whether they were going to win or lose and yet remaining, as one person put it, an absolute gentleman. Your Honour has been exacting of the standards of the conduct expected in Court reflecting its public importance and your own impeccable approach as a barrister. In the Court’s Admiralty Division, your Honour was a national co-convening Judge and the New South Wales registry convening Judge for the Admiralty and Maritime National Practice. I believe your Honour has greatly enjoyed this area of work.

In this division, your Honour has also had the rare experience of arresting and selling several ships, I believe often in cases which were essentially arguments about extremely large fuel bills. The issues have often been high stakes, for example, dealing with the knock-on effects of financial collapses in the sector and matters like the failure of giant South Korean line Hanjin in 2016 which had bills of more $7.8 billion. This division is legally complicated too, however, your Honour has always been alive to the fact that crews caught in such disputes have families and are generally not well-resourced in terms of bringing proceedings and that the law needs to be balanced very carefully.

One matter that deserves special mention today in this area is a conference held a few weeks ago in Brisbane. There, in a simulator of a ship’s bridge your Honour was put in charge of a tugboat tasked with bringing a couple of ships into port. Showing your expertise in the law of maritime and admiralty, your Honour ran the simulator tugboat aground and rammed a couple of bulk carriers. One close to your Honour and to the incident described this as a great maritime lawyer and Judge and a poor helmsman. On a similar note, someone else said – and I quote – “He’s not a person you would describe as naturally coordinated”. In the same breath, they softened, noting your Honour has always remained fit, used to run huge distances, loves skiing and since running was forced off the table due to injury found taekwondo because, of course, if injury is your problem, combat is your solution.

But perhaps taekwondo’s tenets of courtesy and modesty, integrity, perseverance and self-control resemble that of the judiciary and, by all accounts, your Honour has taken to it extremely well, earning a black belt. The flipside, of course, is that when your Honour started out, your then 14 year old son, Quintin, outranked you. Nevertheless, back on the Bench, the breadth of legal issues your Honour has presided over has included many high-profile matters. The former New South Wales Deputy Premier, John Barilaro’s defamation case against Google, the dispute over the 2011 live cattle trade ban and Lehman Brothers failure of fiduciary duty following the 2008 global financial crisis. Of course, media attention is not the arbiter of the successful administration of justice and these have sat alongside equally important issues with less media attention. The Bench has also opened your Honour to areas of law less traversed in your career as a solicitor and a barrister such as industrial relations, patents and native title.

One uplifting example of the latter is the recognition of the Bundjalung People’s native title on the New South Wales North Coast. Your Honour has described how having parents who were refugees from Nazi Germany and family lost in the Holocaust helped inform your commitment to the rule of law, to make sure that the law is never used to oppress people, a principle which has been threaded through your considered application of the law. And alongside this has been a strong desire to serve and to give back to the community. I know your Honour will be missed and your Honour will miss being on this Court and that it is a very collegiate Court with an incredible number of interesting cases that affect people’s lives right across the country. Nevertheless, I believe your Honour will not have much free time. Your Honour recently married, as we heard. Congratulations. And you’ve undertaken a mediation course at Harvard last year, which will no doubt find extensive use in commercial and maritime arbitrations here and internationally. Alongside that is an adjunct Professorship at UNSW, a role as a grandfather, book writing with your son, possibly continuing cooking spectacular meals as we’ve heard, travel and, no doubt, more law. The Solicitors of New South Wales have found you to be an astute Judge and a great contributor to the sound, balanced reasoning of Australian law. On behalf of the more than 40,000 Solicitors of New South Wales, it is my pleasure to congratulate your Honour on your outstanding time on the Federal Court of Australia and all jurisdictions in which you have presided. As the Court pleases.

MORTIMER CJ: Thank you, Ms Banks. Justice Rares, I now invite you to reply.

RARES J: I too pay my respects to the traditional custodians of the land and waters on which the Court sits today, the Gadigal People of the Eora Nation, and their Elders past and present as well as all First Nations persons who may be observing this proceeding. I also acknowledge and am grateful for the presence of so many of my present and former judicial colleagues, most of whom Mr Blunn mentioned including the Chief Justice of New South Wales, the Honourable Andrew Bell, my friend and long suffering junior in many cases before each of us was elevated, and the many other distinguished guests, members of the profession, Court staff and, of course, my friends and family.

As he was about to depart the stage, Othello chastened his listeners somewhat more dramatically than I, saying:

I have done the state some service, and they know’t.
No more of that. I pray you, in your letters,
when you shall these unlucky deeds relate,
speak of me as I am. Nothing extenuate.

I’m not sure that any of you, Chief Justice, Mr Blunn, Mr Dunning, Dr Higgins, Mr Murphy and Ms Banks had that injunction in mind when you spoke, but thank you all as for what you said and especially for what you did not say. I will resist the temptation to correct your somewhat euphemistic expressions. I should say, though, that as Mr Blunn mentioned, I am having trouble relocating all of my library. The sub-zero temperatures kept me awake in Court as well. Sir Frederick Jordan was noted to have had a few well-frozen words, perhaps I did too.

It is 18 years to the day when the then Attorney-General, the Honourable Philip Ruddock AO, phoned me to ask if I would accept this appointment. It has been a privilege and an honour to be able to serve as a Judge of this Court for all the years since. My role has given me a chance to contribute, as best I could, to repaying our country for all the benefits and opportunities that it provided for my family and myself. I have enjoyed not only the work of the Court but also the camaraderie of my peers, both of which I will miss.

My parents arrived, as Ms Banks said, in England in the 1930s as refugees from Nazi Germany. They came here in 1958 at the height of the Cold War seeking peace and a future for themselves, my younger sister, Jackie, and me. My parents’ experience of the protection that democracies, like their new nations, the United Kingdom and then Australia, governed by the rule of law can give to their peoples led me into the law.

As I grew up, I saw and valued the role that the Courts play in upholding the rule of law and our way of life. I saw how Judges stood between the power of the state and the individual by adhering to the judicial oath. That inspired me to study law and be called to the Bar. My experiences as counsel, sometimes quixotic, reinforced that value in me. On taking my appointment, I also swore the traditional judicial oath that Judges before me had taken for centuries. I hoped that I would adhere to that oath and have tried to do so for the ensuing years. Others can judge whether I have succeeded, perhaps, in the way that Sir George Jessel MR expressed in 1882 when the English Judges were debating the address that the Lord Chancellor was to make to Queen Victoria on the opening of the Royal Courts of Justice building in The Strand. The first draft began:

Conscious as we are of our own shortcomings –

until Jessel interjected:

Conscious as we are of each other’s shortcomings –

To come full circle, I sat in that building in London in 2017 as an examiner and quite liked being addressed as “Your Lordship”.

As President of the Judicial Conference of Australia, now called the Australian Judicial Officers Association, the representative body of the whole Australian judiciary, I saw firsthand that each judicial officer of our nation’s polities is very conscious that he or she carries the responsibility to protect and ensure that our society continues to enjoy the freedoms that the rule of law ensures.

I was also privileged, as you have heard, to serve, ultimately, as President of the Australasian Institute of Judicial Administration. About 40 years ago, one of my mentors at and after university, the late Justice John Lockhart AO, induced me to work as its honorary assistant secretary. The AIJA has led both research in support of issues affecting the work of the Courts, Tribunals and judicial administration as well as being at the forefront of judicial education here and internationally. The Commonwealth Parliament justifiably sees the AIJA as a body to which to entrust important research tasks, such as the preparation of national bench books, on significant areas of the law, like its one on domestic and family violence and its current project to prepare a national bench book on Aboriginal and Torres Strait Islander Peoples and the legal system.

Next May, we celebrate the remarkable bicentenary of the two Courts that laid the early foundation of our current good fortune, the Supreme Courts of Tasmania and New South Wales.

The Federal Court is nearly 47 years old. It is now an integral and vital part of the overall Australian judiciary that ensures that we live securely not only in the knowledge, but also the reality, of a free and democratic society governed by the rule of law. We sit, as I have, literally throughout Australia in courtrooms such as this and, when hearing native title cases on country, in tents, community halls and, dare I say, under palm trees. However, I confess I have never had the chance to carry the Court’s silver oar mace onto a ship as happened in centuries past when Courts exercised Admiralty jurisdiction. It is now here on the bench in front of us.

Today is bittersweet for me. I have hung on to the bitter end. I learned of the origin of that expression when hearing a case about a ship’s anchor fouling and then breaking the gas pipeline in Port Phillip Bay. The bitter end is the mechanism that connects the anchor chain to the ship and enables its release when the ship is in danger and cannot heave the anchor out of the water. At midnight, my Constitutional Chapter III role will be released from the bitter end.

This Court’s Admiralty jurisdiction is recognised internationally as being of a very high standard. This was again conveyed to me last week when I spoke in Dubai at the 22nd Congress of International Maritime Arbitrators. The work is vital to Australia’s economy with over 10 per cent of the world’s trade, measured by volume, sailing into and out of Australia on the ocean.

Following my urging, in a speech I gave in Beijing in 2012, the Comité Maritime International established a working group to prepare a draft convention to deal with issues of liability and compensation arising as a result of pollution caused by offshore oil and gas leaks from fixed or floating platforms. Such leaks do not respect national or international boundaries. Very significant leaks from blowouts occurred in 2009 in the Gulf of Mexico, from the Deepwater Horizon rig, and in 2009 and 2010 in the North West Shelf here, from the Montara rig. My friend and colleague Justice Yates recently heard and decided a lengthy class action brought by Indonesian seaweed farmers arising out of the latter.

I have two last judicial reform suggestions or, if you will, pipe dreams.
I have never had the courage to say judicially, as the curiously named Mr Justice Wise said in 1864 in the Supreme Court of New South Wales, that a statute is prejudicial to the public interest. However, the Commonwealth’s approach to legislative drafting is in urgent need of reconsideration. It has the attributes of a pandemic, expanding the now virtual statute book exponentially so that a proper grasp of what it seeks to regulate is beyond understanding. This can be seen in the socially significant areas of law governing corporations, taxation, competition and consumer protection.

The arcane overcomplexity and prolixity of important Acts, like the over 4500-pages long Corporations Act 2001 (Cth) in seven volumes, is a blight on our community. It seeks to cover everything that can happen with a corporation from the everyday to the unimaginable. It offers a smorgasbord of prescriptions that, like Swiss cheese, is full of holes. How can an ordinary shopkeeper, tradesperson or other small business person or, dare I say, a Judge navigate and understand such a behemoth?

I have wondered whether I bear some responsibility for the situation having been counsel in Re Wakin with my then junior, the now Justice Perram. In that case, we persuaded the High Court that the State Parliaments could not confer State jurisdiction on this Court under the previous simpler State Corporations Law. This seems to have been an invitation to the Commonwealth to act ˗ or over-enact.

Legislative overcomplexity is the antithesis of providing access to justice. So too are Court fees that no ordinary person can afford, like those currently prescribed for litigation in this Court. There cannot be one law for the rich and another for the poor. The whittling away of the availability of legal aid by all Governments over years has caused a steep rise in the number of litigants-in-person, many of whom struggle to identify or articulate their cases. This causes significant increases in the time a case takes and adds to the cost and effort for the other parties and the Court in dealing with such proceedings. The Supreme Court of Canada has held that access to justice is denied when a Government can impose hearing fees that effectively prevent persons being able to have their private and public law disputes resolved by the Courts. To return to Magna Carta, the promise in chapter 29 was that “to no one will we sell; to no one will we deny or defer”, that is, delay, “justice or right”.

In my swearing in speech, I acknowledged the many people who had helped me in my career to that time, and I will not repeat that. I have served on this Court under four Chief Justices – Michael Black AC, Patrick Keane AC, James Allsop AC and the one sitting next to me now – together with well over 100 Judges. All of them, who were not already, became friends and valued colleagues. I will miss that collegiality and daily interactions with them greatly.

I have also worked with and received great support from the Court’s two Chief Executive Officers: first, Warwick Soden AO and now Sia Lagos. Each has helped, in his or her own style, to lead and implement the developments that have enabled the Court to serve the people of Australia by providing our Judges with up-to-date technology, resources, equipment and innovations.

Over my term, I have also benefited from the work and the friendship of many of the Court’s Registrars, Court Officers and Registry staff whose loyalty and dedication to duty ensure that the Court works efficiently and well.

My long-suffering Executive Assistant Robyn Davies retired in 2018 after toiling so well with me over 18 years. Since then, I have had two Associates each year. I have been really lucky in working with, in total, 24 fabulous Associates, with each of whom I have formed a bond and from each received tremendous support, assistance and many reality checks.

I have had a fortunate life thanks to my family and friends. My late father encouraged me to pursue my dreams. Both my parents would be satisfied that the sacrifices they made to give their children a good education and life in a country that welcomed them, offering opportunity and hope, enabled me to attend university, become a lawyer and ultimately a Judge.

My remarkable mother, who turned 102 last month, unfortunately cannot be here. Happily, she recently attended my wedding to see me marry my wonderful wife and partner, Ro. My mother still had sufficient wit, when we told her we were getting married, to ask how many children we were going to have. She has been an inspiration all my life. Ro’s delightful and talented son Trey gave his mother away, although that act may boomerang on him. Ro tells me that she is looking forward to seeing more of me in my retirement and hopes we can enjoy lots of time and life together, and so do I.

My son, Quintin, has been a joy to me. As you have heard, he has set me yet another parental task in the immediate future writing a text book with him, having already himself written a university text on negotiations, which is how I got talked into this. I am so happy he met and married Scarlett, who was a non-lawyer before deciding that she needed to study law so as to be able to understand what he and his friends, and possibly me too, were talking about. She became Dux of her year and is now also admitted as a lawyer. They have established the next generation with my beautiful, if not entirely silent today, granddaughter Ottilie, and there is another on the way.

You have all done the Court and me a great honour by your presence today. Thank you.

MORTIMER CJ: Thank you, Justice Rares. The Court will now adjourn.