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TRANSCRIPT OF PROCEEDINGS

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT FOR THE

WELCOME OF THE HONOURABLE JUSTICE O’CALLAGHAN

PRESIDING JUDGES:

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE KENNY
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE JESSUP
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE PAGONE
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN

MELBOURNE

9.30 AM, FRIDAY, 10 FEBRUARY 2017
ALLSOP CJ:   May I welcome everyone here to this very special occasion, the welcome of Justice O’Callaghan.  Mr Attorney.  

SENATOR THE HON G. BRANDIS QC:   May it please the court.  May I begin by acknowledging the traditional custodians of the land on which we meet, the Wurundjeri people of the Kulin nation, and pay my respects to their elders, past and present.

It is a great privilege and, for me, a great personal pleasure to be here on behalf of the Government and the people of Australia to congratulate the Honourable David O’Callaghan on his appointment to the Federal Court of Australia.

We count among those many gathered here this morning many eminent members of the legal profession.  Might I acknowledge the Honourable Alex Chernov, former Governor of Victoria.  Two former members of the High Court of Australia, the Honourable Ken Hayne and the Honourable Susan Crennan.  The Honourable Michael Black, a former Chief Justice of this Court.  Several former Justices of this Court, including the Honourable Ray Finkelstein, who I note played a significant role in your Honour’s career.  The Honourable Diana Bryant, the Chief Justice of the Family Court of Australia.  The President of the Victorian Court of Appeal, the Honourable Justice Chris Maxwell.  

And members of the Supreme Court of Victoria, and members of other Courts.  The Commonwealth Solicitor-General, Dr Stephen Donoghue QC.  Mr Richard Niall QC, the Solicitor-General of Victoria.  The leaders of the profession gather to welcome your Honour, including the President of the Law Council of Australia, Fiona McLeod SC.  The President of the Australian Bar Association, Will Alstergren QC.  The President of the Victorian Bar Counsel, Jennifer Batrouney QC.  And the President of the Law Institute of Victoria, Belinda Wilson.  

We are joined by many, many members of the profession.  We are also, importantly, joined by members of your Honour’s family, who proudly share this day with you:  your wife, Wendy;  your son, Samuel, your son, Ben, and his partner, Freddy;  your son, Alexander, and his partner, Joanne;  your mother, Anne;  your sisters, Susie and Angie.

Your Honour’s life has been devoted to the distinguished service of the Law.  You’ve completed Undergraduate degrees in Arts and Law at the University of Melbourne in 1980.  Indeed, it was shortly before then that your Honour and I first met at an Australasian Law Students Association conference in Adelaide in about 1978, a conference we are both, I am sure, but dimly remember.  

You’ve graduated from the University of Melbourne among the top students of your year.  In 1982, you came to work as an Associate at this Court for the late John Keely.  Your interest in the Law took you to post-graduate study in the United States at Yale, where, in 1984, your Honour graduated with a Master of Laws.  You then 
worked as a Foreign Associate at Sullivan & Cromwell in New York before returning to Melbourne to read with Ray Finkelstein for the Bar.  I understand that your experience reading with Mr Finkelstein was not only a significant influence on your subsequent career at the Bar – he was an early mentor – but it was also how you  
met your wife, Wendy.  You spent the next decade in practice at the Bar here in Melbourne, where you established a reputation as a tenacious and thorough Barrister.  

However, your Honour’s interest in legal research and teaching took you again to Yale in 1996 as a Senior Research Affiliate and Visiting Lecturer at Yale Law School.  It has been suggested that the two years your Honour spent in that role instilled in you the passion for teaching, which you subsequently brought back to the Victorian Bar, where you have had a very important role as a legal educator and mentor of young barristers.  Between 1998 and 2000, you worked as Attorney at Wiggin and Dana in Connecticut, and then you returned to Melbourne to resume practice.  

Three years later, in 2003, you were appointed Queen’s Counsel.  As a silk, you enjoyed a busy and successful practice, appearing in matters involving Corporations Law, Trade Practices Law, Revenue Law, Franchising Law, Equity, Mining and Energy Law, and Constitutional Law, among other matters in a broad senior practice.  It is not only, however, to your Honour’s legal skills that we pay tribute today.  In addition to expressing their admiration for your outstanding legal intellect and the quality of both your advice and your advocacy, your colleagues praise your collaborative manner and the respect you show at all times to all parties.

As your Honour’s many friends know, you are a most congenial person.  The moniker by which you are universally known, “DO’C”, is both an acronym and a mark of affection.  You combine a strong sense of justice with an excellent sense of humour.  Despite a busy practice, you have undertaken the burden of service to the profession in many significant offices.  For several years, you served on the Executive of the Victorian Bar Council, including as Treasurer, Junior Vice President and Senior Vice President.  At the time your Honour’s appointment to this Court was announced, you were the Acting President of the Victorian Bar Council.

Rumour has it that, year after year, your Honour received by far the highest number of votes in elections to the Bar Council Executive, so popular was your Honour among your professional peers.  You also chaired the Readers’ Course Committee for more than four years between 2012 and 2016.  I said earlier that your Honour had been an important mentor to younger barristers.  You, in fact, had an enormous influence on the early stages of the careers of many members of Victorian Bar.  And in that role, among others, you have become an extremely popular member of the profession.

For the benefit of those here today who are less familiar with your Honour than through the eyes of professional peers, let me share a few insights into some of your Honour’s interests and hobbies outside the Law.  Your Honour enjoys running and cycling, but I am told your true passion is American football.  This address would 
perhaps be incomplete without some reference being made to the Green Bay Packers, the team your Honour supports so fiercely that you opted to use their name rather than your own in your Victorian Bar email address.  We recognise in that just the slightest hint of gentle eccentricity.  
 
As you commence what undoubtedly will be a long and distinguished career on the bench, you do so with the respect, confidence and good will of the legal profession here in Melbourne.  So on behalf of the Government and the people of Australia, I wish you a long and happy career on this bench.  May it please the court.

ALLSOP CJ:   Mr Alstergren, President of the Australian Bar Association.

MR W. ALSTERGREN QC:   May it please the court.  Might I acknowledge the traditional custodians of the land upon which we meet and pay my respects to their elders, past and present.  It’s my great pleasure to appear at this wonderful occasion on behalf of the Australian Bar Association and each of the Independent Bars of Australia to sincerely congratulate your Honour on your appointment to this Court.

As you’ve been told by the Attorney-General, your Honour read with the great Ray Finkelstein QC, fondly referred to as “Fink”.  You and Fink have had a lot in common.  You both commenced your schooling at local schools.  You were both highly achieving students, although it’s publically acknowledged that Fink, unlike you, was noted to be rather disobedient and unpredictable.  You were both highly regarded academics, having taught at universities:  you at Yale, Fink at Monash, and both of you at the University of Melbourne.  

You both have an affection for the United States and a love of American cars:  yours a 1965 Wimbledon White convertible Mustang with red interior, Fink’s a 1954 bright blue T-bird.  You still argue about which one was better.  You both love rock and roll music.  You’re both modest in stature but giant in the legal profession.  You both had a substantial and highly successful commercial practice at the Victorian Bar and nationally, and were both briefed by some of Australia’s largest corporations.  You both had chambers on the 27th floor of Aickin.  And you both are much loved and admired by your colleagues and friends.

It’s only appropriate that you found yourself appointed to the same Court that Fink served as a Judge for so many years with distinction.  Fink, being one of the finest intellectuals at the Victorian Bar and a distinguished Judge, has described your Honour’s appointment to this Court as “the most exciting, highly anticipated, thoroughly deserving appointment of any Judge appointed to the Federal Court in the Victorian Registry so far this year”.  

Fink has noted that he and Justice Finn have cited more American authorities in their decisions than any other Judge of this Court;  his words, not mine.  However, he is of the view that your Honour, with your extraordinary legal knowledge of the Law of the United States, will cite even more, and he certainly encourages you to do so.  
Given the events taking place there at the moment, perhaps your Honour’s expertise would be at a premium.  

Needless to say, your Honour is a fine example to all of not only your legal knowledge but also your national practice.  You have appeared in most Courts in States in Australia and regularly in the Western Australian Supreme Court and in the  
Federal Court.  You have built up a large amount of friendships with colleagues nationally.  And it’s no coincidence that Alistair Wyvill SC flew from Darwin to attend your swearing in.  

I will leave it to my learned friend, Ms Batrouney, the President of the Victorian Bar, to speak about your Honour’s extraordinary contribution to the Bar and its members.  However, may I say that, according to past Presidents and present Presidents Peters QC, Anastassiou QC, Batrouney QC and myself, you and Justice Jonathan Beach go down as the finest Acting Chairman the Victorian Bar ever had.  You would have made an excellent Chairman.  And can I say, the Bar’s loss is the Commonwealth’s gain.  

Your Honour has been keen to make a contribution to society, and that has been paramount in much of your practice at the national Bars and in the community.  Part of that also comes from the great relationship you have with your family.  I acknowledge and welcome your wife, Wendy; your three handsome sons, Sashi, Sam and Ben; your mother, Anne; and your sisters, Angie and Susie; in particular, Sam, who flew from Tel Aviv to surprise you last night.

Your kindness and care of your fellow Barristers is well-recognised by your colleagues and admired.  Your Honour not only brings a great deal of legal knowledge to the Court, you also come with a great deal of life experience.  The title to the play written by Robert Bolt in 1954 about Sir Thomas More, the 16th Century Chancellor of England and later Saint, perhaps describes your Honour best:  “A Man for All Seasons”.  This includes your Honour’s talent as a sportsman.

Whilst your Honour has been a great runner over the years, you soon discovered that your son, Sashi, could almost lap you around the Tan, and you couldn’t beat Ben at tennis.  So your Honour took up another sport.  In true style of the late Justice Peter Buchanan, that included a need for speed.  In your case, it was of a particular equestrian flavour.  Your Honour and your wife, Wendy, have ridden horses at places as far and wide as Mansfield to Wyoming.  Whether it be cow-herding, polo or show jumping, your Honour has a fearlessness and determination.  Perhaps so fearless that sometimes your endeavours get the better of you. 
     
The great equestrian author M.R. Hunt has described your Honour as being the exponent of the phrase “the unscheduled dismount”.  Your propensity to ride horses at great speed with total disregard for your own safety was never more apparent than when you travelled to Ballan to look at a famous polo pony being retired.  Upon arriving there, you had no sooner got on the horse than Darby, later to be known as “The Mighty Darbs,” felt your nervous seat, and although trained to go from a 
standing start to a quiet canter, took off at breakneck speed.  Your Honour suddenly leant forward with a wry smile and proceeded to thunder around the entire polo field seven times without stopping.  

It was said to resemble the Duke of Wellington on his famous horse Copenhagen at the Battle of Waterloo.  At one stage as you were flying past, the polo professional  
did ask you, “Everything all right there, DO’C?”  To which you answered, “Everything’s fine.  Carry on.”  It was only when the polo pony noticed a bag of oats in the back of one of the horse trucks it decided to come to sudden halt.  And your Honour, much to the delight and perhaps the relief of all there, managed to dismount in true acrobatic skill, landing on your feet and still holding the reins.  It was only after this adventure that you admitted you had no control whatsoever, but loved the horse, and you went on to buy him, and you and Darby have been riding flat out ever since.  

Your recent horseriding exploits, however, on New Year’s Day left you so badly bruised, the Chief Justice was minded to remind you that you actually hadn’t been sworn in yet and may have to be vet-checked before you were.  I’m glad you passed, Your Honour.  You will be a great Judge of this Court.  Your friends and colleagues are so incredibly proud of you, and we join with your family, especially Sashi, Sam, Ben and Wendy, in celebrating this great occasion.  On behalf of the Australian Bar Association and each of the barristers of Australia, I wish you a long and satisfying career as a Judge of this Court.  May it please the court.  

ALLSOP CJ:   Ms McLeod, President of the Law Council of Australia.  

MS F. McLEOD SC:   May it please the court.  I too acknowledge the traditional custodians of the land on which we meet and pay my respects to their elders past and present.  It is a great honour to speak on behalf of the Law Council of Australia, its constituent bodies and 65,000 members, to welcome your Honour’s appointment as a Judge of this Court.  It was a very great pleasure to see you sitting with the other Judges on Tuesday at the special ceremony to mark the 40th anniversary of the Court.  Although your Honour was the junior-most Judge and therefore sitting in the booster seat, your joy in taking your seat with your colleagues was apparent to all.  

Although I will leave to Ms Batrouney the topic of your contribution to the Victorian Bar, it is a special delight for me to welcome you to this role, given our shared time on Bar Council and the Readers’ Course Committee.  You have made a lasting impression on a significant cohort of young barristers, and we are indebted to you for your dedication.  You are so fond of teaching and of nurturing our junior barristers that you were reluctant to hand over those duties, even as your workload on the Bar Council became more and more onerous.  Your Honour brings a number of important qualities to your judicial role.  You are talented, experienced, learned and dedicated.  

I would highlight three particular qualities that have endeared you to your peers and highlight the fact that you will no doubt be an excellent Judge of this Court.  I speak 
of the breadth of your experience both within Australia and the international arena, your genuine civility and your cheerful disposition.  First, your Honour is a man of the world.  Your remarkable practice has covered many states, including long periods holding conferences on boats in Tasmania with your then-leader Chris Jessup QC, as he was, and long stints in Western Australia on resource cases.  It also covered those States of America, particularly Connecticut, California and New York.  
 
You are, as we’ve heard, a dedicated fan of American football, even purchasing a piece of cheese hat to wear to outings of your beloved Green Bay Packers.  The “cheesehead”, as it’s called, was a huge hit, it seems, resulting in at least one brief from US clients who thought you were in the know.  You have developed close and enduring friendships with counsel across the country, including your good friends Alistair Wyvill from Darwin, and Bret Walker, of course, from Exeter, who we are delighted have been able to join you in Court this morning.  You are equally at home in Manhattan amongst the skyscrapers and at Shoreham amongst the fig trees.  

Second, your Honour is a man of genuine civility.  Your instructors speak of your respect for all members of the team.  Although you have faced challenging opponents over the years, you have always been a model of courtesy and tolerance, a trait that will serve you well on the bench.  And finally, your Honour has a dry and infectious wit that often, according to Bret Walker, has you laughing for hours on end, so long, in fact, that you are unable to remember what it is you’re laughing about.  This jocularity bodes well.

Now that you are Justice O’Callaghan, we expect you to make the easy transition of your nickname from “DO’C” to “JOC”.  The Law Council looks forward to the contribution your Honour will make to the administration of justice and to the nation over a long and satisfying period of service.  May it please the Court.  

ALLSOP CJ:   Ms Batrouney, President of the Victorian Bar Council.  

MS J. BATROUNEY QC:   May it please the Court.  I appear on behalf of the Victorian Bar to congratulate your Honour on your appointment to this Court.  I too acknowledge the traditional custodians of the land upon which we meet, the Wurundjeri people of the Kulin nation, and pay my respect to their elders, past and present.

Your Honour has been a barrister for more than 30 years, 16 of those as a silk.  You had a wide commercial practice, ranging from trade practices to equity.  When your Honour came to the Bar, you hit the ground running, briefed as one of the Juniors to Kenneth Hayne QC for Ansett in the two airlines case.  

Then you were Junior to Stephen Charles QC in the Household Finance Corporation application to the credit licensing authority for relicensing.  This matter ran for a couple of years.  Stephen Charles’s three Juniors in that matter were all Davids:  David Habersberger, David Robertson and your Honour.  The Davids were thus renamed:  Habs, Robbo, and DO’C.  And to complete the nicknames, your instructor 
was Peter O’Donahoo, “PO’D”.  David Habersberger took silk in 1987.  After that, Stephen Charles weighed in only occasionally, when a senior silk was required.  Your Honour worked closely with David Habersberger.  

In February 1988, when your Honour was less than two years call, you were thrown in the deep end.  The managing director of Household Finance was scheduled to fly down from Sydney for a Tuesday morning conference with Habersberger, who planned at that conference to deliver face-to-face the bad news of serious shortcomings in the client’s case.  Habersberger was in Canberra on the Monday night before, and was due to fly back to Melbourne on the 7 am flight that Tuesday morning.  However, at 3 o’clock in the morning, he was taken to hospital in Canberra.  Heavily medicated, he was released to come home on the 7 am flight, but there was no way that he could work that day.  It was, therefore, sometime after 8 in the morning that you got the call that you would be alone that morning, and at less than two years call, you would have to deliver the bad news.  Drawing on your legendary resilience and good nature, you got the job done and done well.  

Your Honour acknowledges the valuable experience you’ve gained from the many eminent silks who have led you.  However, some of these at times have needed a bit of leading from you.  There was one silk whose initials are Alex Chernov, who, knowing that you had done graduate work at Yale, assumed that your Honour had a doctorate.  He thought that your nickname was an abbreviation of your doctoral prefix.  In Court, to your Honour’s intense embarrassment, Chernov kept referring to your Honour as “Doctor O’Callaghan”.  Somewhat sheepishly, you had to tug at his gown and fess up that you were just “DO’C”, and not a Doctor.

Another major case in your early years was representing Ansett in the airline pilots’ dispute.  The pilots effectively shut down all domestic flights in Australia for several weeks.  The airlines sued the union.  Your Honour was one of three Juniors to Ray Finkelstein QC.  Neil McPhee QC, then later Bernard Bongiorno QC, led Tony North for the union.  At the trial before Mr Justice Brooking, each side called a dozen or more pilots.  The witnesses were milling around, and there was one witness who wasn’t on anyone’s list.  

Your Honour was the junior Junior, and Finkelstein assigned him to you, brushing aside your reservations about calling any witness on the blind.  To this day, no one knows who that man was.  After “Please state your full name and address”, it became immediately evident that the man had not even been called by your instructors;  he wasn’t even a pilot.  Your Honour whispered urgently to your leader a few wholly unrepeatable words.  Mr Justice Brooking, a man of particularly acute hearing, smiled – surely a first in his Honour’s Court – and you thanked the witness for his assistance and bundled him out before your opponents realised what had happened.  

Your Honour has a talent for and commitment to teaching.  You tutored in Law at Trinity College with the University of Melbourne.  You lectured at the Yale Law School.  You took a pupil at the earliest opportunity, and you took a reader from then on every year you practiced in Melbourne, until 2003 when you took silk.  You 
joined the Readers’ Course Committee in November 2004.  You served on that Committee a total of ten years, four of those as Chair.

Your Honour was wholly committed to the Bar Readers’ Course, and you led, shaped, and guided the course at a critical time.  There had been a fundamental review of the Readers’ Course in 2009.  There was a major rethinking and restructuring of the course, including admission by competitive examination and cutting back the course from 12 weeks to a more sharply focused eight weeks.  The  
changes were introduced in 2010.  Your Honour developed and refined the new course, establishing a firm foundation for the future, not least by introducing the equally dynamic and energetic Noah Messing from Yale to teach writing and advocacy.  

Your Honour is much loved by everyone who took your Readers’ Course, and it certainly became your Readers’ Course throughout the eight Readers’ Courses conducted under your watchful eye.  Your Honour had four readers.  Your first reader continued in your chambers when your Honour returned to Yale.  On your way to the airport, you called from your mobile to your chambers number in order to deal with an urgent loose end.  Your Honour’s line seemed not to be working.  It’s not clear whether your reader has ever confessed to you the unseemly haste with which he disconnected your Honour’s phone and replaced it with his own.  

Your former readers speak of your Honour’s kindness and generosity.  Similarly, a number of your Honour’s juniors, after you took silk, say how extraordinarily and genuinely supportive you were of them and of the Junior Bar generally, taking a real interest in their career development and wellbeing both within and outside of work.  One reader said that working as your Honour’s junior was the most fun he had ever had on a case.  This was so even after your Honour explained to him that your strategy in assigning cross-examination of a witness to him was to signal to the other side that “we don’t really care about this witness”.  

As a silk, your Honour was renowned for being calm under fire.  In one international arbitration which was to have been heard in Singapore but was removed to Milan, your Honour was saddled with a so-called expert witness to establish Italian Law, by which the contract was said to be governed.  The so-called expert, who incidentally lived in Surfers Paradise, seemed under cross-examination by the other side not even to have heard of the seminal Italian text on contract law.  What the witness lacked in Mediterranean erudition, he more than made up for in fiery Mediterranean temperament.  Hands gesticulating wildly, he complained, “Books, books.  I saw many books.  Books are here, books are there.  Too many books are everywhere.”  Reportedly, your Honour remained calm but your re-examination was limited.

Mention has been made of your Honour’s passion for the Green Bay Packers in American National Football League.  However, your Honour was once a keen supporter of the Fitzroy Football Club under the spell of Bernie “Superboot” Quinlan.  The Fitzroy Lions were in the finals in 1981, and Quinlan shared the Brownlow that year.  In July 1996, Fitzroy and the Brisbane Bears merged to become 
the Brisbane Lions.  Many Fitzroy supporters moved to other AFL clubs, but your Honour moved to the United States.

When your Honour returned to Australia four years later, you were besotted by the Green Bay Packers.  Your Barrister’s Chambers were bedecked with all sorts of weird and wonderful Packers memorabilia, and no doubt these items have been carefully moved to pride of place in your new Judicial Chambers.  Speaking of sport, the running and cycling spoken of by the Attorney and the horse riding spoken of by  
Mr Alstergren, this has blessed your Honour with a body that has been said to be “half-greyhound, half-racing pigeon”, qualities we hope will see you dashing back home to the Essoign Club for a quick lunch when you’re able to.  

On a more professional plane, your Honour is one of only 20 members of the American Law Institute resident in Australia.  The ALI is the leading independent organisation in the United States producing scholarly work to clarify, modernise and improve the Law.  Its members are eminent lawyers, judges and academics.  Election to the American Law Institute is a particular distinction because the number of elected members is limited.  So new members are elected only when there’s a vacancy.  Of the 20 Australian members, until your Honour’s appointment to this Court, you were the only Australian member who was not a Judge or a retired Judge or a senior full-time legal academic, and you have been a member for 10 years. 

As the Attorney has mentioned, your Honour served on Bar Council for four years.  After only one year, you were elected Honorary Treasurer, then Junior Vice President, then Senior Vice President.  Your Honour’s re-election to the Bar Council last November was a foregone conclusion.  You were one of the most popular members of the Victorian Bar ever to have been elected to Bar Council.  There is no doubt that you would have been President of the Bar.  

You couldn’t tell us why, but, in October last year, you gallantly withdrew your nomination for the candidate seeking election to the Bar Council just before the start of voting.  This provoked, I can assure your Honour, a flurry of concerned phone calls around the Bar.  It was a relief on 8 December last year to be able to assure your concerned colleagues that your Honour had not run off to join the circus or been struck down by some exotic illness, but, in fact, withdrawn your name for the far more exciting and less hazardous reason of your appointment to this honourable Court.  

Your Honour has been an outstanding leader at the Victorian Bar.  In addition to your work on Bar Council and the Readers’ Course, you served as a Director of Barristers Chambers Limited, played an integral role in establishing the Indictable Crime Certificate, and represented the Bar on numerous Court Users’ Groups and Committees.  All this entirely voluntary work was over and above a demanding practice for the last 16 years as a silk, mostly in complex and long-running cases.  On behalf of the Victorian Bar, I thank your Honour for your service to the Bar and wish your Honour long, distinguished and satisfying service as a Justice of this Court.  May it please the court.  

ALLSOP CJ:   Ms Wilson, President of the Law Institute of Victoria.  

MS B. WILSON:   May it please the court.  I appear on behalf of the Law Institute of Victoria and the Solicitors of this State to congratulate and welcome your Honour as a Judge of the Federal Court of Australia.  The social networking service Twitter restricts its 300-odd million users to only 140 characters.  It is apparently just enough space to lead the free world, or follow complete strangers and celebrities.  Your  
Honour’s use of it under the handle “@DOCcheesehead” was brief.  “I think I once used Twitter, then thought better of it,” your Honour remarked.  Carrie La Seur, US Attorney, novelist and former Associate of this Court, welcomed your Honour to Twitter in 2014 with the observation, “And you’re no longer an egg.  Well done.”  

Tweeting was still only for the birds when your Honour backpacked through American as a teenager.  Your Honour, as we have heard, graduated from University of Melbourne, then served articles in 1981 at the former firm Madden Butler Elder & Graham with Alan Fenton.  Drinks at Matilda’s in Queen Street were often heart-starters for unprepared article clerks who failed to answer a question from the formidable Supreme Court listings master Vincent Gawne.  Your Honour became Associate to Justice John Keely of this Court, then attained a Masters of Law at Yale Law School in 1984, and later worked as a Foreign Associate with the New York firm Sullivan & Cromwell.

During 10 years at the Victorian Bar from 1986, your Honour set the foundations for a remarkable career, one lauded today, that has culminated in this worthy appointment.  Your Honour returned to Yale as a visiting lecturer in 1996, the same year as your Honour’s beloved Fitzroy Football Club was forcibly merged with the Brisbane Lions.  

US Attorney Jonathan Freiman first met your Honour soon after graduating from Yale, when a lasting friendship begun over breaks from billable work hours in a café in New Haven, Connecticut.  It was somewhat of a bohemian place, several blocks from a more convenient spot near your workplace.  Mr Freiman soon asked why, given your work pressures and the distance to it, your Honour preferred that particular café.  “This is where we belong, Jonathan,” your Honour replied, surveying the writers, students, musicians. “We aren’t the bohemians, but we are the people wearing suits that like to sit with the bohemians.”

At Wiggin and Dana in New Haven, between 1998 and 2000, your Honour, with Mark Kravitz, the firm’s then head of its appellate practice, once successfully argued a case based on Pavey v. Matthews, a leading Australian High Court Judgment on unjust enrichment.  It was only the second time in history a Connecticut Court had cited a judgment of our High Court.  When Mr Kravitz, then a Judge, died in 2012, your Honour helped raise funds for his portrait among the friends that he made in visits here and in lecturing at the University of Melbourne.  Mr Freiman, now partner of the firm, believes such generous donations were also out of respect of your Honour’s reputation as a Barrister and as a man of warmth, kindness and modesty.  

Ray Finkelstein, former distinguished Judge of this Court, describes your Honour as “a lawyer’s lawyer, one interested in simply having young lawyers become good old lawyers”.  Few of your Honour’s cases, we submit, were as personally satisfying as shirtfronting the Australian Football League in 2010 over its alleged breach of a clause in the merger agreement between Brisbane and Fitzroy.  The dispute centred on a claim that Brisbane altered the Lions logo, disparaged as “the Paddle Pop Lion”,  
when it agreed to use it in perpetuity.  The case settled on terms favourable to the plaintiffs.  

In a letter congratulating your Honour becoming a Judge, Dyson Hore-Lacy SC noted that history would record that your Honour and the late Justice Peter Buchanan of Victoria’s Court of Appeal, who each provided pro bono advice for that fight, had been launched into the judicial stratosphere by a love of the Lions.  

In closing, we are thankful that your Honour has recovered from the fall before Christmas, when Cisco spooked.  Your Honour painfully recalls that it was a very long way down from Cisco, who stands at more than 14 hands.  But as Vince Lombardi once said, “It’s not whether you get knocked down, but whether you get up.”  Your Honour has now gotten back on the horse, so to speak, and saddled up for this challenging new role, one we are certain will be long, successful and filled with distinction.  May it please the court.

ALLSOP CJ:   Justice O’Callaghan.    

O’CALLAGHAN J:   Mr Attorney, Chief Justice, your Honour’s distinguished guests, ladies and gentlemen, I am profoundly grateful for all the kind and generous words that have been spoken today.  Although I am bound to say that Mr Alstergren has vastly overstated both my equine abilities and my alleged fearlessness, but Cisco is actually over 17 hands, not 14.  He’s a very big horse.

I also thank in particular the Attorney for his generous remarks.  As the first legal officer of our great nation and a distinguished member of the Queensland and Victorian Bars, you do the Court and me a great honour by your presence today.  

I’m also honoured by the presence at the bar table of the Solicitors-General for the Commonwealth and the State of Victoria, but both of you have significance to me beyond your important roles.  Dr Donaghue is, like me, a Whitefriars boy, and I poached my inaugural Associate Maya Narayan from Mr Niall.

I am acutely conscious of the privilege that I have been afforded to serve as a Judge of this Court.  I follow in the footsteps of many distinguished jurists including, most relevantly for my purposes, the one and only, the Honourable R.A. Finkelstein AO QC, aka “The Fink”, and his mentor, and thus my grand-mentor, former Chief Justice M.E.J. Black.  The expectations of my lineage are thus not inconsiderable.  I had to get a double negative in there somewhere.  

Whatever anxieties those expectations of lineage may create, they have been considerably alleviated by the generous welcome and encouragement that I have received from my new colleagues here at the Court, almost all of whom gathered in Sydney this past Tuesday to celebrate the Court’s 40th anniversary.  I think that I am the first Judge of this Court whose first Full Court sitting was as part of a bench of 42.  

It would not surprise you to know that the Chief Justice has in particular been extremely kind to and supportive of me during my period of transition. You should know that his generosity, his words of encouragement and advice have done much to relieve me of the inevitable trepidations to which one is subject at a time like this, and I am extremely grateful to him for all that he has done.  

I am acutely aware that I wouldn’t be sitting here, the subject of all this attention – perhaps the only day in a Judge’s career where you might actually believe that it really is all about me – I am acutely aware that I wouldn’t be sitting here were it not for the help, support and love of many people.  First and most obviously, those people include my family, most but not all of whom are sitting to my left.  

I realise now, although of course at the time I was oblivious to it, that my parents made considerable sacrifices to ensure that I had the chance to be educated, both at school and then at university.  It is most unlikely that I would ever have achieved much at all had it not been for all that they did for me.  My mother is here today, so I hope, Mum, that you know how much I appreciate those things that you gave up for my sake.  

My wife Wendy, like so many barristerial spouses, has also given up much to support me.  She has shouldered more of the share of raising our three magnificent children than was ever really altogether fair.  As many people in Court today are only too well aware, many barristers spend large parts of their professional lives being almost entirely preoccupied, and I was and probably still am no exception.  So, Wendy, thank you for all that you have done and all that you have sacrificed, including your own career as a barrister, to make my own career both possible and successful.  

As the speakers today have mentioned, Wendy and I are blessed by our children, Sashi – whose real name is Alexander, as most of you know – Sam, and Ben.  I am enormously proud of each of you and I love you more than I could ever say.  And, Sammy, I can say with certainty that you win hands down the door prize for the guest who travelled the furthest and longest to be here.  It was a great surprise that you were jettisoned in from Tel Aviv last night, and although your employer might not appreciate your impulsive action in jumping on a plane in Israel, I sure do.

I have over the years been blessed to have been taught and guided myself by many wonderful people.  As a teenager, I was fortunate enough for the spiritual guidance of the Reverend Houghton Pilkington, who was the vicar of St. Michael and All Angels at Mount Dandenong.  He was a kind and gentle man, and I owe him a lot.  
I’ve also been shaped in critical – I’d like to say good ways – by the late Professor Jan Deutsch of the Yale Law School, by my boss at Wiggin and Dana, the late Judge Mark R. Kravitz; and by two others better known to you, the Honourable Ken Hayne and the Honourable Fink.  I owe each of them debts of gratitude for various reasons that I can never repay.

I’m deeply touched that my great friend Bret Walker is here today at the bar table.  Bret has taught me many things, including the meaning of many words that I never knew existed and all that is to be gained from the wonderful world around us simply by lifting one’s gaze.  

I also owe much to the Victorian Bar.  It has been my working home for more years than one would care to remember.  It is a magnificent institution which I am confident will long continue to provide the community and the Courts with access to the finest advocates in the land.  I have forged many of my closest friendships at the Bar, and I am overjoyed to see so many of those dear and loyal friends here today.  

I also wish to thank my long-suffering secretary Linda Grillinzoni.  Linda has been my gatekeeper and assistant for over a decade, and she has taken to her new role as my EA at the Court with her customary enthusiasm and skill.  

I have worked with many great barristers over the years, those who led me and those who I led.  I have worked with the giants of our Bar, and I have led many of whom I am sure will assume that mantle in the years to come.  I’m indebted to each one, too numerous to name lest we be here all day, and so it is with my instructors.  I have been briefed over the years by some of the finest solicitors in the country, many of whom I count as my good friends.  So I thank all of you for your support over many, many years and for your friendships.

I promised myself that my remarks would be brief and they will be.  I’m deeply moved by your presence here today and all the kind and generous things that all of you have said about me.  I will treasure my memories of this morning.

In the meantime, friends, colleagues and distinguished guests, I can do no more really than assure you that I will do everything within my being to do that which on 1 February I swore on my oath to do, namely to do right to all manner of people according to law, without fear or favour, affection or ill-will.  Thank you.  

ALLSOP CJ:   The Court will now adjourn.

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