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TRANSCRIPT OF PROCEEDINGS

O/N H-405813

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT FOR THE SWEARING IN AND WELCOME OF THE HONOURABLE JUSTICE BEACH

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE NORTH
THE HONOURABLE JUSTICE JESSUP 
THE HONOURABLE JUSTICE MIDDLETON 
THE HONOURABLE JUSTICE KERR, CHEV LH 
THE HONOURABLE JUSTICE PAGONE 
THE HONOURABLE JUSTICE DAVIES 
THE HONOURABLE JUSTICE MORTIMER 
THE HONOURABLE JUSTICE BEACH

MELBOURNE

9.32 AM, MONDAY, 30 JUNE 2014

BEACH J:   Chief Justice, I have the honour to announce that I have received a commission from His Excellency the Governor-General, appointing me a judge of the Federal Court of Australia.  I now present my commission.

ALLSOP CJ:   Thank you Justice Beach.  District Registrar, would you please read aloud the commission.

THE REGISTRAR:   

The commission of appointment of a judge of the Federal Court of Australia.  I, General, the Honourable, Sir Peter Cosgrove, AK MC (Retired), Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution, and subsection 6(1) of the Federal Court of Australia Act 1976 appoint Jonathan Barry Rashleigh Beach, one of Her Majesty’s Counsel, to be a judge of the Federal Court of Australia, assigned to the Melbourne Registry, commencing on 30 June 2014, until he attains the age of 70 years. Signed and sealed with the Great Seal of Australia on 12 June 2014.  Peter Cosgrove, Governor-General, by His Excellency’s command; George Brandis, Attorney-General.

ALLSOP CJ:   Thank you.  Justice Beach, I now invite you to take the oath of office.

BEACH J:   I, Jonathan Barry Rashleigh Beach do swear that I will bear true allegiance to Her Majesty, Queen Elizabeth II, her heirs and successors according to law, that I will well and truly serve her in the office of Judge of the Federal Court of Australia, and that I will do right to all manner of people according to law, without fear or favour, affection or ill will, so help me God.

ALLSOP CJ:   I now invite you to subscribe the form of oath that you have just taken.  Registrar, I hand you the form of oath and the commission for them to be entered into the records of the Court.  Thank you.  Justice Beach, congratulations.  My warmest personal welcome and the warmest possible welcome from all members of the Bench, in particular, members of the Victorian Registry, but the welcome is heartfelt from all judges of the Court.  

BEACH J:   Thank you.

ALLSOP CJ:   Mr Attorney.

THE HON. GEORGE BRANDIS QC:   May it please the Court.  It is a great pleasure to be here today to welcome the Honourable Justice Jonathan Beach to the Bench of this Court.  Might I on behalf of the government, and the people of Australia, congratulate your Honour on your appointment.  

May I begin by acknowledging the many distinguished visitors and guests who are here today, including Justice Crennan, Justice Chris Maxwell, President of the Court of Appeal;  the Honourable Michael Black, a former chief justice of this court;  the 
Honourable Mark Dreyfus, the Shadow Attorney-General;  current and former judges of the Federal Court, the Federal Circuit Court and the Supreme Court of Victoria.  

May I also acknowledge the presence of members of your Honour’s family, who proudly share this special occasion with you.  In particular, your wife, Daria;  your son, Maximilian and daughter Isolde;  your father, the Honourable Barry Beach;  your brother, the Honourable Justice David Beach;  your sister Sally and her husband Ewan;  as well as a very large number of your professional colleagues, all of whom have welcomed this appointment with enthusiasm. Your Honour hails from a family of lawyers and judges.  One might say that the law runs in your veins and that you were destined to follow in the footsteps of your distinguished father, who sat for many years as a member of the Supreme Court of Victoria.  Your brother David also followed in your distinguished father’s footsteps and is currently a judge of the Court of Appeal.

Your Honour attended Trinity Grammar School in Kew and went on to complete degrees as Bachelor of Laws, Bachelor of Science and Bachelor of Arts at the University of Melbourne.  In 1984 you were admitted as a barrister and solicitor of this court – the Supreme Court of Victoria, I should say, having served articles of clerkship at Allan Moore & Company.  Your Honour began as an employee solicitor at that firm and then moved to Blake & Riggall in 1985, practising commercial law.  In 1987 you signed the Victorian Bar Roll.  Some of your Honour’s early years as a barrister involved briefs from Peter Gordon of Slater & Gordon.  During this time you developed a reputation for not flinching from the hard cases against well resourced defendants.  It is said that you throve on the challenge they posed.

Your Honour has undertaken many high profile class actions as lead counsel, both on the plaintiff and defendant sides of disputes.  Class actions such as the Ok Tedi litigation, the Philip Morris litigation and the Graham Barclay Oysters case feature among those cases that have become important precedents in private international law, torts and class actions.  In recognition of your excellence as a barrister, you were appointed Queens Counsel in 1999.  Your Honour’s work style and preparation are described as disciplined, meticulous and unique.  Your mastery of evidence earned you the respect of both the bench and of the Bar.  

Your Honour is known for your first rate capacity for legal analysis.  You are highly regarded for your breadth of knowledge in non-legal disciplines, particularly chemistry, mathematics and the sciences.  Your Honour has been observed debating the finer points of linear elastic fracture mechanics with world-leading metallurgy experts and complex algorithms and regression analyses with econometricians.  Your Honour has on a number of occasions written of the differences and similarities between the disciplines of science and the law.  More recently, your Honour has written a learned paper entitled, “The Intersection of Science and the Law: General Themes”, which was presented as part of the Victorian Bar’s Continuing Education Program.

Your Honour demands no less of the experts retained in the cases as you do of yourself.  I am told that once on a trip to Imperial College London you worked for weeks on the science of metallurgy and fracture mechanics in preparation for a conference.  When your Honour and your colleagues arrived, it emerged that the experts had done very little work to advance the matter in the period since the last conference.  The experts were given no opportunity to weasel out of the task and kept in conference until a properly reasoned piece of work had been produced.

Your colleagues have spoken at length about your tireless work ethic.  Your Honour is known for rising early – very, very early.  Your counsel team has been known to receive emails in the early hours as you prepare for the day’s work.  Your colleagues knew these hours were structured to meet the needs and interests of your family.  Outside the demands of long trials, early working hours were primarily undertaken to enable your Honour to attend to your family’s needs first and foremost.  

Your Honour returned to the University of Melbourne to complete a Master of Arts Degree in 2009 whilst being engaged at the time on a busy shareholder class action practice.  I have been advised that your Honour was a low maintenance Silk who did everything for yourself.  Nevertheless, your Honour has over many years helped and inspired many of the junior counsel briefed to appear with you to achieve the highest possible standards of advocacy, whether it be in legal research, paperwork or advocacy itself.  Through your Honour’s meticulous preparation, intellectual rigour and application, you inspired your juniors and those who instructed you in large commercial cases, secure in the knowledge that your Honour would have read, understood and advanced the analysis; you encouraged those around you to give of their best.

Your Honour has been known to take the time to show a vacation clerk the inner sanctum of the Supreme Court library.  You have also been known to conduct pro bono litigation and, at your own expense, fly two of your juniors to Canberra, meet their travel and accommodation costs and even arrange a tour of Parliament House.  There are many other examples of your Honour’s simple but generous acts of encouragement to those who are new or newer to the profession.  It is no surprise in light of what I have said that your Honour and your wife Daria sponsored a scholarship at the University of Melbourne dedicated to students with skills in science or engineering, and law.  

In addition to your Honour’s love of the law, your Honour also has a love of music and you are yourself an accomplished trumpeter.  We are certainly pleased that your Honour chose to pursue the law rather than music as a profession, but we can be reasonably confident that you would have excelled at either.

Your Honour will not only bring to the bench a wealth of experience in traditional areas, but also a broad understanding of economics and in particular in many scientific sub-disciplines which will be invaluable to the court’s competition and patent and intellectual property jurisdictions respectively.  On behalf of the Government and the people of Australia, may I again congratulate you and wish you well for the many years of service that will be ahead of you on this court, to the law and to the Australian people.  May it please the court.

ALLSOP CJ:   Ms McLeod.

MS F. McLEOD SC:   If your Honour pleases.  On behalf of the Australian Bar Association and the Law Council of Australia, I offer my congratulations to your Honour and to your wife, Daria, and your children, Max and Isolde.  I acknowledge the presence of your Honour’s family, including sister Sally, brother Justice David Beach and your father, the Honourable Barry Beach.  There is no doubt the court is gaining a judge of intelligence, diligence, courage and unfailing courtesy.  I am particularly delighted to speak at your Honour’s welcome because of our work together on the Bar Council, in particular when you were honorary treasurer and then the year you were my vice chairman in my year as chair.  As is well known, the chair leans heavily upon the vice chairmen, in my case, you and Mr Alstergren.  I was particularly grateful for your Honour’s support and sage advice on our council committees and the executive in our time together.  

I was greatly assisted, as was my predecessor Melanie Sloss, now Justice Sloss, by your Honour’s close attention to a number of special projects involving clerking and tax matters.   Our office bearers meetings were held outside court sitting hours and we often met over breakfast.  Your Honour was always punctual, having been in already for several hours by 8 am.  Your Honour’s preference for a lunch of chocolate frogs is well known.  However, what may not be so well known is that your usual fare at breakfast was toast and jam.  For a period of time, reflecting your Honour’s extraordinary self-discipline, you abstained from all food entirely, sustained purely by tea or coffee.  This was after you had found, to your horror, that your working diet of chocolate frogs meant you had put on one extra kilogram.  Such is your Honour’s discipline that your order – your baseline jam and toast – was soon restored.

The Attorney has also spoken of your nocturnal working habits and I can personally attest to the emails after midnight most often consisting of your own unique interpretation of haiku poetry.  Usually in response to my long description of a particular problem – its history, its context and my proposal as to how we would respond – you would simply say: All fine, comma, JB, full stop, brackets, Westminster, brackets – or wherever you happened to be at the time.

Your Honour is well known for your formidable mind, meticulous preparation and for strategic thinking.  Your quick grasp of the principles of chemistry, engineering, and mathematics is now legendary, as the Attorney has noted.  Many observing the Kilmore bushfire class action Matthews v SP AusNet struggled to follow the 
exchanges between you and the experts in the case, as you tested the scientific analysis and conclusions of each on a diverse range of topics. And you were no less at home in constitutional and commercial cases, such as the Alinta Energy and AGL cases, in insolvency matters and in competition law, in cartel cases and in such matters as the Pilbara rail access cases, requiring knowledge of complex pricing mechanisms, computational and deterministic algorithmic programming and econometric analyses.  So while I am delighted at your Honour’s appointment to this court, I must confess to also being relieved.  My relief lies, of course, in the fact that your appointment means you’re no longer available to frighten my experts in the Murrindindi bushfire class action due to commence early next year. Many other counsel at the bar will similarly welcome your appointment.

But your Honour is not all dry learning, and many have enjoyed lighter moments working alongside you in cases or attending to Bar business.  During the Victorian Bushfires Royal Commission, your Honour’s wit was discernible during your cross-examination of witnesses operating the State, District and Local emergency response centres with your thinly concealed delight in referring repeatedly to goings on at the SERCs, DERCs and MERCs.  I expect you will have no trouble following the advice of Neil McPhee, recounted at our Bar dinner recently by Justice Ken Hayne upon his first appointment to judicial office, to find the fun in it.  

Indeed, it was for fun that you returned to graduate study, as the attorney has mentioned, over and above your very busy Silk’s practice, earning a Master of Arts degree in History and Philosophy of Science at the University of Melbourne in 2009.  For years, as you had been, as you would put it, just running cases, this graduate work was something for you, a matter for pure intellectual curiosity and endeavour;  to your Honour, a matter of fun.  Your Honour’s thesis is entitled, “Why Did the Completeness Paradigm of the Copenhagen Quantum Mechanists Dominate During the Period 1927 to 1935?”  Lest any feel comfortable with the topic so far and feel like joining in the fun, I might read the opening sentences:

By the end of 1927, the principal formalism of quantum mechanics was relatively well-settled, but the epistemological and ontological commitments of the formalism were still contentious among leading physicists.

You examined the explorations of the subatomic theorists, including the work of the so-called Copenhagen gang, Niels Bohr, Max Born and Werner Heisenberg, and their resistance to the ideas of the “something else is out there” trendies, such as Albert Einstein.  Not a work for the fainthearted.  But the topic and the thesis itself are great clues as to the type of advocate you have been and the type of judge you will be.  Your thesis was – forgive my clumsy lay terms – an attempt to explore why leading scientists of the day were not truly agnostic in their approach.

As a judge, you will likewise be grounded in agnosticism, most interested in reasoning well-based in the evidence and solid legal principle rather than intuitive feeling or constructions of convenience.  But equally, I expect you will be open to revisiting sacred assumptions shown to be without sound foundations.  No doubt history will prove you something of an enigma to those wishing to categorise new judges as capital C conservatives or capital A activists.

As the attorney has noted, your Honour also found fun as a fine trumpeter.  It is said you played for a time with the MSO, although this turned out to be the Malvern Symphony Orchestra.  Your favourite jazz artist, Wynton Marsalis, is well-known for his wit, flair and musical talent.  You played your trumpet at the Bar Readers Dinner years ago but could not be prevailed upon to join the trumpets at last year’s Bar dinner; as it turned out, an act of great prescience.  

In closing, I refer to one of your significant cases, the matter of Johnson Tiles and Esso, involving claims of negligence and section 52 of the Trade Practices Act, following the explosion and fire at the Esso Longford plant in 1998.  Your Honour appeared for the State parties in this court, the High Court and then the Supreme Court before it ultimately settled.  The case is significant for a number of reasons.  I seek to only mention two.  First, the economic evidence was highly technical and full of complex diagrams.  It has been said that only the economic experts themselves and your Honour fully understood it.  Justice Bill Gillard, bravely trying to follow the evidence, in a moment of exasperation asked your Honour:

Mr Beach, there’s a rumour there are more economic textbooks in your chambers than law reports.  Is that true?

There is a second reason for my mentioning the case.  From time to time, your Honour has expressed regret at never having acquired a bit of celebrity in the practice of the law, a little bit of something for the mantelpiece.  I suspect your Honour was just teasing me each time you said so, but I thought it fitting to offer you this comfort.  The group claimants in the Johnson Tiles proceeding were represented by a number of plaintiff firms, including Maurice Blackburn.  Upon recently visiting the 10th floor reception of that firm, I happened to observe a larger than life size photograph of your Honour seated at the bar table in the Johnson Tiles case, your photograph taking up the better part of the southern wall.  Your Honour can begin your time in this court knowing that you have truly made it as a capital C celebrity counsel.  I wish your Honour joy in your appointment and a long, satisfying and distinguished service as a judge of this court.  May it please the court.

ALLSOP CJ:   Mr Alstergren.

MR W. ALSTERGREN QC:   If the court pleases.  The Victorian Bar is truly delighted at your Honour’s appointment to this court.  We congratulate the Attorney and the Executive on a fine choice.  Your Honour is a brilliant lawyer and your appointment is well-deserved and celebrated amongst the profession.  Having said that, let me say this.  Your Honour has been the senior vice chairman of the Bar and was to become the next Bar Council chairman.  You were held in such high regard

by your fellow members.  They are deeply concerned about the prospect of going on in your absence.  This is made worse by the fact that in the last 60 years there has been an almost constant and significant presence of the Beach family at our Bar.  

For more than 20 years, your father, Barry – in court today – was a fine advocate, Silk and a member of the Bar Council before he was appointed to the Supreme Court.  Four years later, your brother, David – also in court today – signed the Bar Roll and went on to great success, served on the Bar Council and became honorary treasurer.  Your Honour’s nephew, Christopher, is working for one of the clerks.  Your Honour has been at our Bar for more than 26 years, including 15 years as a Silk and the last four years as a vital member of the Bar Council.  You have served as honorary treasurer, vice chairman and at times acting chairman of the Bar.  The idea of now being left without a Beach presence is sobering, to say the least.  

Faced with this problem, I’ve been consulting with the wise members of the Knights of the Round Table, that being the lunchtime collection of barristers and judges frequenting The Essoign Club in the corner.  It was suggested that perhaps the Bar could seek an injunction to preclude your Honour from taking up this appointment until November 2015.  As attractive as this suggestion is, there are a number of obvious difficulties, not the least of which is forum.  Given your Honour’s talents and the obvious conflict, this court could not hear the application.  The High Court would dismiss the application on the papers, especially after your Honour’s recent introduction of Justice Hayne at the Bar dinner.  And if the matter was heard by the State Supreme Court, it would be ill-fated, even if an attempt was made by that court to try and draft you itself under the AFL father and son rule.  

Your brilliance was first recognised at Trinity Grammar.  In HSC, your Honour studied not five, but six subjects:  Chemistry, Physics, Mathematics, Economics, Music and English, and won school prizes in three of those subjects.  It was said by your Honour’s headmaster, James Leppett, that as a footballer, cricketer and tennis player, your Honour ensured you didn’t peak too early, often known to enter into a rigorous intellectual debate rather than physical conflict.  In pursuing the notable alumni records of Trinity Grammar in Wikipedia, the extensive list of celebrities includes a Test cricketer, numerous AFL footballers, Jamshid Jumps of The Cat Empire, the inventor of Milo and a hip hop artist.  However, I was surprised to know that your name was actually omitted from the list.  I’ve now been informed that, in fact, your Honour and your brother were inducted into the Trinity hall of fame in 2008.  

Your Honour went on to the University of Melbourne and, as we’ve heard, completed a Bachelor of Laws, Arts and Science degrees.  Later, whilst working full-time, your Honour has also completed a Master’s in the Philosophy of Science.  Your Honour has demonstrated a strong and virtually unique ability to synthesise disciplines of science and law.  After articles, your admission to practice was moved by the then John Digby QC and you came to the Bar in the September 1987 Readers Course.  Others in your intake include:  Mark Dreyfus QC, former attorney-general, here today;  Jim Peters QC, now vice chairman of the Victorian Bar;  Marcus Clarke and Stewart Anderson QC.  Not one to hang around, you immediately took the 

largest chambers you could find, something you’ve continued to do throughout your career, hired a secretary and established a large practice.  

You read with Ross Robson, later QC and now judge of the Supreme Court.  Justice Robson remembers your extraordinary ability even then.  He remembers one particular conference.  You were sitting at the back of the room.  He was giving advice about the enforceability of contracts.  The solicitors and clients had their backs to you.  After he had given his opinion that the contracts were, in fact, enforceable, you nodded to the contrary, to which he immediately said, “On the other hand, they may not be.  I will let Jonathan explain.”  You quickly became the junior of choice for top commercial Silks and firms, often appearing with Archibald QC, Emmerson QC, Merkel QC, Pannam QC, Neil Young QC and others.  You appeared as junior counsel in High Court cases, the Pyramid Building Society litigation, the Ok Tedi BHP litigation, as well as in Royal Commissions, including Longford and Tricontinental, and in the Yannon Investigation.  

In the late 80s, you were regularly briefed in commercial list directions hearings, which were normally held on a Friday.  On a typical Friday, you would have a dozen or so briefs in two different commercial lists, and in the practice court.  You were hurling up and down the stairs from one court to another, and Mr Justice Ormiston was heard to call you “the Scarlet Pimpernel”.  

You took Silk in 1999 at the age of 39.  You were Mr Junior Silk.  Your Bar dinner speech was, it’s said, brilliant.  It has been highly praised as – I quote – “a wicked, waspish, whispering wit”.  You were the last QC to be appointed in Victoria until recently.  You had two readers:  Daniel Star and Bernie Quinn, now QC.  Both praise your generosity and your support.  Your Honour very quickly became one of the most sought after and highly regarded Silks of the Bar.

Very early in your career as a Silk, you ran a case in the High Court of Ebner.  In that case, you convinced the majority to find that there was no separate principle of disqualification for pecuniary interest by a judicial officer, as was long thought to be the case as a result of the decision in Dimes.  Since then, there has hardly been a piece of major litigation in Victoria that your Honour has not been briefed in.  Whether it be a complex legal issue, a shareholder class action, a regulator’s pricing dispute, a gas explosion or a failed building society, your Honour was to feature highly.

Your Honour also acted in the Esso v BHP Petroleum case.  You took over that brief from your now brother judge, Justice John Middleton, when he was appointed to this court.  However, it was not always plain sailing.  In fact, in one case – Walker-Shipley v the State of Victoria – and you can guess who told me this story – the true common lawyers, Bongiorno QC and Ruskin QC, taught you, it’s said, the beauty of the broad brush approach.

More recently, your Honour has been appearing in the Bushfires litigation, earning the nickname “Bushfire Beach”.  Such is your Honour’s forensic mind and work ethic, that your Honour’s cross-examination of many of the experts has been described as masterful.  Experts were often left bewildered at how it was your Honour was able to question them in such depth, and with such force.  One exchange demonstrated your Honour’s confidence in the area:

MR BEACH:   Your Honour, there is a question of fracture mechanics to explain why the conductor fractured.  It involves Paris’ law, the stress intensity factor, \Delta\sigma, short crack fracture calculations and strouhal numbers in relation to vibration.

You then went on to give a summary for over five minutes.  At the end, his Honour said:

All right.  I will wait to hear from the experts on the science.

You replied:

You just did.

Your Honour commanded respect and was ruthless in court, but very fairly.  In relation to your objections, it’s said that, Tim Tobin SC, without your Honour’s objections, may once again be able to sorely test the English language by a series of questions, each consisting of 650 words containing 47 assumed facts and 28 subordinate clauses, ending triumphantly in the words, “Is that not so?”

Your last case was one of the largest heard in Victoria.  It was heard over 208 sitting days.  Your Honour’s final written submissions consisted of over 1500 pages.  Your Honour delivered them succinctly in a day and a half, much to his Honour’s very much appreciation. Your Honour was opposed to Robert Richter QC in that case.  He remembers the day he was opposed to your father, the then Barry Beach, in a furious battle.  Your Honour, then a young school student, came to court to watch.  Richter maintains that he won that case, as he would.  But it appears now, many years later, that after being opposed to you recently, you may have returned the favour.  Your Honour’s juniors and all your instructors all praise your Honour’s work ethic and your leadership.

Your Honour has served as a trustee of the Bar Superannuation Fund with Ross Robson for more than 14 years – an enormous effort.  

As a member of the Bar Council, as Ms McLeod has indicated, you’ve done an enormous amount.  However, in that role, you did show a different side, a side not readily obvious to your opponents in court, or to those you’ve been cross-examining.  As treasurer, and on the Council Committee, and on the Benevolent Fund, your Honour was extremely compassionate – a gift which will serve you well as a judge.  You’re also a man of the people.  Peters QC, Clarke and others remember your Honour at the 1989 AFL grand final when your trusted Geelong was losing.  Your 

respect for the umpire’s decision was as vocal as Simon Wilson when he was watching Carlton.  

On the Bar Council, you oversaw many major projects and amendments, including the introduction of the National Professional Rules, the launch of the International Arbitration Centre, the new Silks process, clerking reforms and others.  You have been an outstanding servant of the Bar and a great support to each chairman.

You have been a wonderful member of our Bar, a brilliant lawyer and advocate.  You have supported and been inspirational to many young barristers and solicitors.  The Victorian Bar is truly delighted at your appointment.  You would have been an outstanding chairman, but you will make an even better judge of this Court.  That said, your Honour, I’m simply left to say, congratulations to your Honour, your wife Daria, Max and Isolde, on your appointment to this court, and the Victorian Bar wishes you a long, satisfying distinguished service as a judge.  May it please the Court.  

ALLSOP CJ:   Mr Bowyer.

MR G. BOWYER:   May it please the Court.  I appear on behalf of the Law Institute of Victoria and the solicitors of this state to congratulate your Honour, Justice Beach, on your appointment to this Court.  I personally, through involvement of the Law Institute with the Bar Council have admired your sanguine, personable and always helpful manner.  Your Honour has deep roots in the solicitor’s branch.  Your father, the Honourable Barry Beach served five years long articles with the late Allan McDonald at the firm of Wighton & McDonald in Geelong.  

At his farewell in 2003, after 25 years in the Supreme Court, your father confessed that “five years in the solicitor’s office was enough to convince me that this was not the path I should follow”.  Your father went straight to the Bar.  Your Honour, however, practised as a solicitor for three and a half years.  

You served articles with Allan Moore at Allan Moore & Co in Queen Street, Melbourne.  Allan had been in sole practice for many years.  Allan had been at law school with the late Harry O’Halloran, a friend of your father at the Bar.  Allan was an old friend of your father and had briefed him at the Bar.  Retired Justice David Byrne and the late David Ross QC had each served articles with Allan Moore.  

The firm acted for the Statewide Building Society, which merged with the RESI Building Society and later became the Bank of Melbourne.  It also had a general practice.  Your Honour’s high ability was immediately recognised and you remained with Allan Moore & Co as a solicitor for about a year until February 1985, when you joined the commercial department of Blake & Riggall.  That firm is now Ashurst.  At Blake & Riggall, your Honour worked primarily with Rob Paterson and Logan Armstrong.

Allan Moore & Co briefed your Honour, as they have briefed your father.  You both 
responded quickly with advice work.  One of Allan Moore’s major clients, the RESI-Statewide Building Society was granted a banking licence and became the Bank of Melbourne in July 1989.  Although your Honour had been at the Bar less than two years, Allan Moore briefed your Honour to review and revise all the Society’s security documents, and also bring them into conformity with the law and regulations affecting its new status as a bank – a very substantial project.

Your instructing solicitors all speak of your Honour’s thorough, detailed and measured advice, promptly delivered and carefully explained.  And, when necessary, your Honour moved mountains with amazing speed.  The monumental AGL v ACCC case in this court before Justice French, referred to by Ms McLeod, was heard on an expedited basis, the three weeks of hearing, beginning within 10 weeks of the application being filed.  

Your Honour was a pleasure to work with, and instructors and their clients respected the measure of your quiet reserve, and your Honour’s manner and demeanour.  Nothing threw you.  Peter Gordon instructed your Honour in the class action claim against the Australian subsidiary of Dow Corning in relation to faulty breast implants.  The American company was in chapter 11 bankruptcy under the United States Bankruptcy Code.  Expert oral evidence as to the United States bankruptcy law had to be presented to the Victorian court and both sides had difficulty in finding a truly independent expert available to come to Melbourne when needed.  Neither side’s expert was independent.  Both were partners in the law firms engaged in the case.  Both were said to be at least colourful Texans.  

Peter Gordon brought your expert straight from his direct flight from the States to your chambers.  He had the former American President’s surname as his first name.  Peter Gordon made the introduction courteously, “Mr Jonathan Beach”.  The exuberant Texan responded: “Howdy, Jon.  Just call me Reagan”.  He was in flaming red silk cowboy shirt with a shoelace tie and he put his ten gallon cowboy hat on your Honour’s desk.  Relaxing into the conference, he put his almost knee high ornate leather cowboy boots up on the corner of your desk.  Your Honour remained courteously unfazed, focused on the task in hand.  It was only after you had shown them the door that you called back Peter Gordon for a moment.  Quietly your Honour said, “Oh, Peter, just three things for our friend in court tomorrow – a pin striped suit, a white shirt and conservative tie, and it would be courteous not to put his feet up in Jack Hedigan’s court”.  The opposing Texas expert turned out to have a thin, curled moustache and hair halfway down his back, albeit in a neat ponytail.  It was a pivotal case for claimants outside the United States and achieved compensation for the Australian plaintiffs.  

Your Honour was in the vanguard in class actions.  You were briefed by Slater & Gordon, you were briefed by Herbert Smith Freehills.  Ken Adams and Damian Grave, partners at Herbert Smith Freehills, are here today. They have co-authored Class Actions in Australia published by the Law Book Company, and now in its second edition.  The authors recorded their thanks to your Honour in the 

foundation first edition and I quote:

For bringing to bear his vast knowledge and experience of class actions and his comments on drafts of this manuscript.

They went on to thank Justice Nettle and Professor Cheryl Saunders for the comments on particular chapters.  Your Honour is renowned in class actions and in the major and highly technical competition cases you have done with Simon Uthmeyer at DLA Piper and the major insolvency work you have done with Robert Heathcote and Leon Zwier at Arnold Bloch Leibler, and in the Exxon/Esso dispute with BHP you did with Mark Dobbie and John Kelly at Middletons.  We would be here all day even just to mention your major instructing solicitors over the years.  Many of them are here in this court today to mark the occasion of your appointment.  

Perhaps less well known is your Honour’s pro bono work in human rights and access to justice cases.  In 2009 your Honour appeared in this court on behalf of the indigenous applicants in Shaw v the Minister for Indigenous Affairs.  The Minister, frustrated about negotiations on the government’s proposed 40 year subleases on the indigenous Alice Springs town camps, gave notice of intention of compulsory acquisition of the land.  Your Honour described this as the sword of Damocles hanging over the heads of your indigenous clients.  In this, your Honour was instructed by Ben Schokman of the Human Rights Law Resource Centre and supported by research from Allens Arthur Robinson.  You appeared with two juniors.  

In 1999 your Honour accepted one of the early pro bono referrals under the earlier Order 80 of this court to assist an unrepresented litigant, a man of Eritrean origin whose three year old daughter had been abducted by her mother in clear breach of an order of the Family Court.  Mr Abraham had appeared in person in his earlier action against the Commonwealth, both at first instance and on appeal to the Full Court.  Pro bono, with Daniel Star as your junior, your Honour represented him in a new negligence claim against the Australian Federal Police and the Commonwealth.  You were opposed by Richard Stanley QC and Frank Saccardo.  Your Honour achieved a confidential settlement in that case.  Your Honour also appeared in the High Court in the Heather Osland case.  

Mention has already been made of your Honour’s trumpet playing and of your philanthropy.  With your wife, Daria McGauran, you established a scholarship at the University of Melbourne.  Personal contribution of effort and philanthropy are linked with your music and your honour’s work with Melbourne Youth Music Inc.  Your Honour, as has already been said, as a young man, played trumpet.  For nearly three years from 2009 to 2012, you served on that board.  You revised the MYM Constitution to accord with the new Associations Incorporation Reform Act, a painstaking and tedious task.  And you made your chambers and your generous hospitality in chambers available for board meetings.  Your Honour became one of MYM’s most generous and consistent financial benefactors.

Thirty-six years ago, Bernard Teague, then president of the Law Institute, said in his welcome addressed to your Honour’s father, and I think it’s particular apt, and I say the same to your Honour.  I quote:

Sir Owen Dixon at the time of his appointment as Chief Justice of the High Court commented on the great safeguard it was for the judicial system to have the strength of the whole of the legal profession behind it.  You, sir, can draw much satisfaction from the knowledge that you have the strength of the whole of the legal profession of Victoria behind your appointment.  

On behalf of the Law Institute and the solicitors of this state, I wish your Honour long, satisfying and distinguished service as a judge of this court.  May it please the court.

ALLSOP CJ:   Justice Beach.

BEACH J:   Chief Justice, your Honours, Attorney-General, other distinguished guests, ladies and gentlemen, it is a great privilege to have been appointed to this court.  To be a member of a court which has seen such fine jurists as Justices Peter Hely, Arthur Emmett and Paul Finn is indeed an honour.  It is also humbling, but I have to be careful here.  Justice Alan Goldberg reminded me several years ago of advice Golda Meir gave to one of her Ministers.  The advice was, don’t be so humble, you’re not that good.

Mr Attorney, Ms McLeod, Mr Alstergren, Mr Bowyer, thank you for your very kind words, and also for your discretion – mostly.  Let me add my own perspective on the individuals that must bear significant responsibility for what has occurred.  First, my wife, Daria McGauran.  How blessed I have been and what a ride we’ve had together during my career at the Bar.  Who else with her three degrees and a background as Sir James Gobbo’s Associate could have understood and put up with my work habits?  Second, my two children, Max and Isolde, my best friends.  I hope that any disparity between what has been said about me today and your own perception of me is not too great.  I am very pleased to have my sister Sally here today.  You can imagine what it was like around the family dinner table all those years ago, more than the usual number of strong personalities.  Sally and I could never get a word in edgeways.

To David and a great supporter of mine, thank you.  Most of you won’t know that David was responsible for me coming to the Bar.  When I was in two minds about taking this step, I went and spoke to David.  I asked him what he thought.  David paused, not for too long.  He then said, “I think you will do okay”.  Now having the necessary trait for any successful trial lawyer of optimism, I took David’s blessing as an assurance of an unlimited supply of grateful clients and happy solicitors eagerly waiting for my arrival.  Optimism is one necessary trait, but I also carried with me 
an intrinsic sense of what had made my father so highly successful, a very strong work ethic and the need to be my own person.  I could have had no better role model.  

Let me move to the profession.  I owe a great debt to Allan Moore to whom I was articled.  He dealt with a difficult article clerk who in 1983 did not know whether he really wanted to be a lawyer.  And I must also thank my master, Ross Robson.  He taught me the importance of exercising good judgment, as opposed to being just a good technician.  As for instructing solicitors, I have waged some great campaigns over the last 20 years with Damian Grave and Ken Adams from Herbert Smith Freehills.  No barrister has had finer instructors.  I also want to mention Robert Heathcote, Leon Zwier and Leonie Thompson from Arnold Bloch Leibler, three master litigators.  They have added glamour and lustre to my practice.

To the Silks that led me in my first 12 years, you are the ones who gave me the most valuable opportunities.  I am very much indebted to you.  To the juniors that I have led in the last 15 years, I have only this to say – the quality of today’s juniors is the best that it has ever been.  Their powers of legal analysis vastly exceed previous generations, their work ethic is the equal of any and their capacity to synthesise and present immense amounts of information is not a skill set that previous generations had to display to the same extent.

There is one other perspective relevant to the Bar.  Four years ago, I joined the Bar Council.  What a pleasure that has been, and how nice to have worked with such great chairmen as you, Mr Alstergren, and you, Ms McLeod, and your very dedicated predecessors Melanie Sloss and Mark Moshinsky.

In terms of my future performance, I have only one statement of present intention to make.  I intend to emulate the ideals of Justice Alan Goldberg’s sense of proportionality, Justice Ron Merkel’s lateral mindedness and Justice Ray Finkelstein’s fine intellectual curiosity.  Thank you, Chief Justice, Sia Lagos and Andrea Jarratt for making me feel so welcome and thank you all for attending, particularly Justice Crennan, former Chief Justice Black and President Maxwell.  You do me and my family great honour.

ALLSOP CJ:   The court will now adjourn.

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