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TRANSCRIPT OF PROCEEDINGS

O/N H-1899352

FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

TO WELOME

THE HONOURABLE JUSTICE NESKOVCIN

THE HONOURABLE DEBRA SUE MORTIMER, Chief Justice
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE RANGIAH
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINKSY
THE HONOURABLE JUSTICE BROMWICH
THE HONOURABLE JUSTICE LEE
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE O'BRYAN
THE HONOURABLE JUSTICE SNADEN 
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE O'SULLIVAN
THE HONOURABLE JUSTICE MCELWAINE
THE HONOURABLE JUSTICE MCEVOY
THE HONOURABLE JUSTICE NESKOVCIN
THE HONOURABLE JUSTICE DOWLING

MELBOURNE

9.31 AM, WEDNESDAY, 28 FEBRUARY 2024
MORTIMER CJ:   A warm welcome to you all.  We are on the country of the people of the Kulin Nation.  The area where this court building is located is generally recognised as the country of the people of the Eastern Kulin Nation, whose traditional lands extend around Port Phillip and Westernport and up to the Great Dividing Range and the valleys of the Loddon and Goulburn Rivers.  On behalf of the Judges, Registrars and all the staff of the Federal Court, I offer our respects to the people of the Eastern Kulin Nation, to their ancestors and to their elders.  I also acknowledge the challenges facing the Australian community in our relationships with First Nations peoples, including how First Nations peoples are treated by the justice system.  

It’s a real delight to see so many people here to welcome Justice Neskovcin.  Her Honour was formally sworn in as a Judge of this Court on 8 February this year.  I acknowledge the presence of Justices of the High Court, former Justices of this Court, including former Chief Justice Michael Black, the Chief Justice of the Federal Circuit and Family Court, colleagues from a wide range of Federal and State Courts and Tribunals, members of Counsel and Solicitors and members of the Academy.  Your collective presence does Justice Neskovcin and this Court a great honour.  Joining us for the ceremony are members of Justice Neskovcin’s family and her Honour’s invited friends and colleagues.  No one achieves a milestone like a judicial appointment on their own, and today is an important opportunity to acknowledge all the support and encouragement which has enabled her Honour, like all her judicial colleagues on this Court, to reach this point in her very distinguished career.  

Justice Neskovcin, on behalf of the Judges, Registrars and all the staff of the Court, I congratulate you on your appointment, and I am confident you will serve the Australian community with great distinction.  Mr Blunn, Australian Government Solicitor representing the Attorney-General for the Commonwealth, I invite you to speak on behalf of the Attorney-General.  

MR M. BLUNN:   May it please the Court.   First, may I acknowledge the traditional custodians of the land we are meeting on and recognise and pay my respects to any Aboriginal and Torres Strait Islander people here today.  The Attorney General, the Honourable Mark Dreyfus KC MP, regrets that he is unable to attend today’s ceremony, but it is my great pleasure to be here today on behalf of the Australian Government to congratulate your Honour on your employment as a Justice of the Federal Court of Australia.  Your Honour’s appointment to the Federal Court has been warmly welcomed by the Australian Legal Community and is another success in an outstanding career.  That so many of your colleagues in the legal profession are here today is testament to the high regard in which your Honour is held by your colleagues.  

I would like to particularly acknowledge the Honourable Justice Michelle Gordon AC, Justice of the High Court;  the Honourable Justice Simon Steward, Justice of the High Court of Australia;  the Honourable Justice William Alstergren AO, Chief 
Justice of the Federal Circuit Court and Family Court of Australia;  the Honourable Michael Jack Black AC KC, former Chief Justice of the Federal Court of Australia;  the Honourable Ray Finkelstein AO KC, former Justice of the Federal Court of Australia;  the Honourable Neil Young KC, former Justice of the Federal Court of Australia;  other current and former members of the judiciary and members of the legal profession.  Like the Chief Justice, may I also acknowledge the presence of your Honour’s family who proudly share this occasion with you.  Your mother Rozanne is here today, and your sisters Brigid and Catherine, and your nephews, Dominic and Joshua.  We’re also joined by your partner Colin, his son, Harry and sister Maria.  

Your Honour is from a large close-knit family, and commenced your education at home on the west coast of Tasmania.  While at school, your Honour’s academic and sporting talent were recognised.  You were school captain in your final year of high school and achieved outstanding results.  In addition to excelling academically, I am told that your Honour was an avid reader and had a broad range of interests, playing netball and softball and rowing, making lifelong friends.  Your Honour’s career in the law started early when, as a secondary student, your Honour completed work experience at a law firm, settling you on a path to appointment to this honourable Court.  In 1993, your Honour graduated from the University of Tasmania with a Bachelor of Economics, making the Dean’s Honour Roll for Economics and a Bachelor of Laws with Honours.  Your Honour subsequently commenced your legal career as an article clerk for Murdoch Clarke in Hobart.  In 1994, your Honour was admitted to practice in the Supreme Court of Tasmania and then, a year later, was admitted to the Supreme Court of Victoria.  

From 1995 to 2002, your Honour was employed as a solicitor at Allens.  In 2002, you were called to the Victorian Bar and quickly built a busy practice.  At the Bar, your Honour excelled, being briefed in a broad range of matters, developing expertise in a formidably diverse range of subject matters including administrative law, bankruptcy and insolvency, class actions, corporations law, competition and consumer law, professional negligence and, finally, taxation and revenue law.  Your Honour’s work included making an important contribution to the profession, serving the Victorian Bar as its Assistant Honorary Secretary and then Honorary Secretary from 2006 to 2008.  In 2016, your Honour took Silk.  Colleagues have praised you for your Honour’s role as Senior Counsel assisting in two Royal Commissions, the Royal Commission into the Casino Operator and Licence, and the Royal Commission into Management of Police Informants.  In recognition of both your Honour’s skill as a lawyer and your many admirable personal qualities, you have been described by reference to a quote from P.L. Travers, as “practically perfect in every way”.  

Throughout your career, your Honour has been known for your tenacity, diligence and commitment to justice.  Your Honour is motivated, not by your own success, but by your dedication to achieving just outcomes.  Notwithstanding your Honour’s busy schedule, friends and family speak of your compassion, generosity of time, inclusive spirit and empathy for others.  Others have remarked on your grace, even temper and 
kindness, qualities that I’m sure will be welcomed by practitioners who appear before you.  I’m also told that your determination and perseverance characterise the pursuit of your Honour’s personal interests.  When not engrossed in a book, knitting, or enjoying the company of family and friends, your Honour is running a marathon.  I’m told you’ve run a very impressive 10 while trekking to Everest Base Camp which I understand you’ve done twice.  You also have a passion for exploring Australia in your Winnebago campervan.  Your Honour’s appointment to the Federal Court is an acknowledgement of your skill and experience and is an important opportunity to continue your outstanding contribution to the law.  

On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and best wishes, and welcome you to the Federal Court.  May it please the Court.  

MORTIMER CJ:   Thank you, Mr Blunn.  I might say, the Court does seem to be acquiring a stable of marathon runners.  Mr Dunning, President of the Australian Bar Association. 

MR P. DUNNING KC:   Justice Neskovcin, Chief Justice Mortimer, Justices of the Federal Court, Justices Gordon and Steward out of the High Court, Chief Justice Alstergren, retired Justices of this Court, ladies and gentlemen. It is my privilege and pleasure in equal measure, Justice Neskovcin to offer the National Bar’s congratulations on your Honour’s well-deserved appointment.  Your Honour, as we have heard, brings to the Court experience in a wide area of practice, all of which are particularly pertinent to the important jurisdiction of this National Court.  The Bar has every confidence that your Honour will discharge this function with great distinction and bring credit on yet another of our former members to have joined this Court.  In that regard, it is appropriate that we notice your Honour’s service to the Victorian Bar, something that Ms Schoff will speak of a little more.  

It is also appropriate that we note the public service that your Honour is willing to give by the taking of this appointment.  It is no small sacrifice to give away the freedom of the Bar to take an appointment on this Court, and to exercise the important jurisdiction it does.  And in doing so, we acknowledge the special place this Court, and Judges of it have, in making peace with our First Nations peoples, not only in the interactions with justice, which the Chief Justice adverted to earlier and has in the past, but also in the important areas of jurisdiction that this Court exercises that touch First Nations people so importantly.  Nobody achieves the success that your Honour has achieved leading up to today, and including today, without the love and the support of family and friends.  As we have heard, they are here today, and they should feel justifiable pride in your Honour’s appointment.  However, your Honour is a product of the Victorian Bar, and whilst joining a national Court, this is in every sense, Victoria’s day, and with those remarks, I offer the National Bar’s congratulations, thank your Honour for your service, and pass to my friend Ms Schoff.  May it please the Court.  

MORTIMER CJ:   Thank you, Mr Dunning.  Ms Schoff, President of the Victorian Bar Association.  

MS G. SCHOFF KC:   May it please the Court.  It is my great pleasure to appear on behalf of the Victorian Bar to welcome your Honour, Justice Neskovcin, to this Honourable Court.  On behalf of the Victorian Bar, I too acknowledge the traditional owners of the land on which we meet, the people of the Kulin Nation and I pay my respects to their elders, past and present.  No doubt your Honour is feeling a little overwhelmed at this moment.  You are, by all accounts, utterly modest about your great personal strengths and formidable intellectual attributes.  But your Honour’s appointment has been welcomed with universal enthusiasm as an excellent one.  And those who know you best all agree that you will make a very fine judge.  

Your Honour was born and raised in Tasmania in what must have been a crowded and noisy household;  you were one of six siblings.  When very young, after visiting a convent, you expressed a desire to become a nun, a wish that had more to do, I understand, with wanting some peace and quiet and your own bedroom than a higher call.  It is our great fortune that you changed your mind.  You were educated at St Patricks, Launceston and the University of Tasmania, graduating in 1993 with a Bachelor of Economics and a Bachelor of Laws with Honours.  You were admitted to practice as a solicitor of the Supreme Court of Tasmania in 1994.  But the bright lights of the north island soon beckoned and, the following year, you found employment with the firm Arthur Robinson & Hedderwicks and were admitted to practice in Victoria.  

You worked your way up the ranks of that firm to become a senior associate.  It’s now known as Allens.  And, in 2002, you were called to the bar reading with Simon Marks KC.  As we’ve heard, specialising in insolvency, you quickly built a busy practice.  Your friend and colleague, Philip Crutchfield KC recalls with pleasure working with your Honour when you were both juniors.  You were briefed together for the first time in 2008, led by Alan Archibald KC in proceedings arising out of the collapse of the securities borrowing and lending company Opes Prime.  The proceedings in this Court raised important issues of principle concerning a scheme of arrangement proposed by liquidators.  The who’s who of the insolvency litigation bar were at the bar table and on the other side as well.  The Honourable Justice Finkelstein presided.  

You were instructed on behalf of the ANZ Bank by then Alan’s partner, Anne Ferguson, now Chief Justice of the Supreme Court of Victoria.  In another case, you and Crutchfield were again briefed this time led by Allan Myers AC KC against the Bendigo Bank.  These were, for your Honour, typical cases.  Crutchfield, like others who have worked with your Honour, speaks of your calmness under pressure, your decisiveness and your ability to get to the heart of an issue but also your empathy and your sense of humour.  In 2016, you were appointed silk and joined the ranks of the leaders of the insolvency bar.  As we’ve heard, you acted in a number of significant royal commissions, including as counsel assisting, and you also developed a class actions practice.  Throughout your career, you have given your time to serve, 
including as honorary secretary of the bar counsel, honorary secretary of the Applications Review Committee, secretary of the Commercial Bar Association’s Superannuation Section and as a member of BCLs board of directors.  

You had recently assumed the chair of List A.  In chambers on the 18th floor of Owen Dixon West where you have long been a tenant, you have overseen regeneration, seeing its too previously split halves become one again.  As a mentor and leader, you have influenced the careers of countless junior barristers.  You had three readers, Alexandra Folie, Penny Renc and Brad Holmes.  They learnt much from your Honour.  Alexandra Folie was always impressed not only by your preparation.  You always anticipated the hardest questions that might be asked of you, but by your forensic reflection following every appearance.  Whether a case went well or not, your Honour would always ask what could be learnt from the experience.  Your Honour is renowned for your calm but firm approach.  You were said to be unflappable.  You never get flustered or rattled.  You work hard and think deeply about your cases.  These characteristics will serve you well on this bench.  

I must say, however, that my favourite description of your Honour’s advocacy comes from Anthony Strahan KC.  He says you are formidable in Court, a cross between Meryl Streep in The Devil Wears Prada and Clint Eastwood in Dirty Harry.  Your appointment to this court reunites you with your great friend, the Honourable Justice Timothy McEvoy.  You came to the bar in the same intake and took silk the same year.  It’s fitting that you followed him so quickly to this bench.  Justice McEvoy describes you as the judge from central casting;  clever, experienced, humble, kind, compassionate and someone who understands the human condition.  I accept that this might be difficult to reconcile with Strahan’s casting of your Honour as crossed between a devil dressed in Prada and Dirty Harry but I’m sure they’re both right.  

As well as a formidable barrister, your Honour has been a runner of marathons.  My sources say that those marathons have taken you twice to Mt Everest which sounds like next level.  You are also a keen bush walker and the proud owner, as we’ve heard, of a Winnebago motor home with your partner, Colin.  Your friends and family here today and the many more watching online must be extremely proud of you.  On behalf of the Victorian Bar, I wish you a long and distinguished service as a judge of this court.  May it please the court.  

MORTIMER CJ:   Thank you, Ms Schoff.  Mr Hibbins, president of the Law Institute and representing the Law Council of Australia.  

MR HIBBINS:   May it please the court.  I too acknowledge the traditional custodians of the land that we gather on today, the people of the Kulin Nation and, more particularly, the people of the Eastern Kulin Nation and I pay my respects to elders past, present and emerging.  It is my great privilege also to appear on behalf of the Law Institute of Victoria and the solicitors of this State and on behalf of the Law Council of Australia to welcome your Honour as a justice of this court.  Greg McIntyre, president of the Law Council, regrets he’s unable to attend today but he sends his congratulations on your appointment and wishes you all the very best in 
your new role.  As we’ve just heard, you’ve had a long and distinguished career as a barrister since being called to the bar in 2002 and taken silk in 2016.  Having previously been a senior associate in the insolvency group at Arthur Robinson & Hedderwicks, now Allens.  

You started your career in ’94 as a solicitor of the Supreme Court of Tasmania.  And, in the following year, you were admitted to practice in the Supreme Court of Victoria.  Your practice at Allens, as we heard, extended to commercial disputes and, at the bar, we’ve also heard that you’ve acted in numerous high-profile matters, specialising in cooperate and commercial law, bankruptcy and insolvency, trade practices, administrative law, tax and superannuation law.  Long before you even contemplated your pathway to the bench, your Honour was an instructing solicitor along with a former Allens partner, Mark Kirshay, in the landmark 2003 High Court case of Austin v Commonwealth of Australia regarding the superannuation contribution surcharge imposed on State judges.  

You and Mark instructed Geoffrey Nettle QC, and Mark Moshinsky for the plaintiffs, led by the Honourable Justice Austin of the Supreme Court of New South Wales who disputed their liability to the superannuation contribution surcharge assessed and imposed under Commonwealth statutes.  And you won.  Both counsel, of course, went onto esteemed roles on the bench.  This complex and much-quoted case highlights the delicate balance between federal and state powers in Australia’s constitutional framework.  Your involvement in such a ground-breaking case reflects your clear intellectual leadership from very early in your legal career.  One of the young lawyers your Honour also worked with while a senior associate at Allens, herself now a partner, Belinda Thompson, says she has learnt a lot from the experience of working with you.  

She found you a role model for all the characteristics of a fine lawyer;  calm, structured, measured and meticulous.  With your combination of excellent technical skills, calm demeanour and, I’m told, a mischievous sense of humour, Belinda says you are an integral part of the team.  “Unflappable” apparently is the word that comes to her mind.  In the late 90s, you used that skill to help set up and support the establishment of the newly opened Perth office.  Later, these skills came readily to the fore when you were called to the bar.  And Belinda said it was clear, watching you cross-examine witnesses in the great southern litigation, that you were destined for great things.  But, over and above being an exceptional solicitor and barrister, your colleagues also found you a great pleasure to work with.  You were kind and generous with your time, junior lawyers loved working with you and looked up to you while more senior lawyers appreciated your wise and practical counsel.  

Your Honour worked on several high profile royal commissions of inquiry, including giving the best part of nine months of your working life in 2021 as part of the counsel assisting team on the Royal Commission into Casino Operator and Licence, led by the Honourable Ray Finkelstein AO QC as the Commissioner.  Several colleagues who worked with you on the inquiry into whether Crown Melbourne was a suitable person to continue to hold a casino licence in Victoria, recollect that period 
was one of intensely challenging work.  The Honourable Justice Meg O’Sullivan, who is here with us today, recalls that you were a delight to work with, a triple threat, apparently;  someone who can sing, dance and act all at once or, in your case, was clever, good on your feet and incredibly nice to work with.  In the very opening minutes of the Commission’s hearing, a procedural matter came up unexpectedly but you just dealt with it and moved on.  

Barrister Geoffrey Kozminsky, also on the counsel assisting team, endorses Justice O’Sullivan’s view.  He says your Honour was always relaxed, level-headed and a pleasure to be around.  You were a sounding board for everyone involved.  Corrs Chambers Westgarth were the solicitors assisting the Commission supporting the counsel assisting team during the inquiry.  Partner and head of the Melbourne practice, Abigail Gill said that your qualities were very much admired by all of the solicitors on the team.  The Casino Royal Commission was required to respond to the terms of reference within a very short time and was conducted under intense public scrutiny in a challenging, fast-paced environment.  Your Honour made a significant contribution to the forensic inquiries that resulted in findings delivered by Commissioner Ray Finkelstein in October 2021.  And you did so with your characteristic intellectual rigour, a calm demeanour and good humour.  

Abigail and all those involved congratulate you on your appointment and very much look forward to the important contribution your Honour will make to the Federal Court and to the administration of justice.  We know from many quarters that your depth of legal knowledge and dedication to the law have already left a lasting impact on our legal community and will, no doubt, be appreciated by all those who appear before you.  On behalf of the solicitors of this State, I wish you a long and satisfying career as a justice of this court and all the very best to you and your family in this new chapter of your life in the law.  May it please the court.  

MORTIMER CJ:   Thank you, Mr Hibbins.  Justice Neskovcin, I invite you to reply.  

NESKOVCIN J:   Thank you, Chief Justice.  Justice Gordon and Justice Steward of the High Court, former Chief Justice Michael Black AC KC, Chief Justice Alstergren AO, current and former judges of this court and of other courts, distinguished guests, members of the profession, friends and family, I also acknowledge the traditional owners of the lands on which we sit today and pay my respects to their elders past and present.  

I thank each of Mr Blunn, Mr Dunning, Ms Schoff and Mr Hibbins for their kind and generous words.  I am deeply touched by the presence of so many colleagues, friends and family here today.  You do me a great honour but your presence.  

I would like to start by thanking the Chief Justice and my colleagues on the Court for their warm welcome over the last couple of weeks, and everyone who has done me the honour of attending this ceremonial sitting today, particularly friends and family who have travelled from interstate, I give my sincere thanks.  It means more to me than I can say.  

It is, of course, the custom on these occasions for the addressees to make kind and generous remarks.  Nevertheless, I am extremely grateful and hope 
that I can live up to some of the expectations that have been set by those kind words.  It is an honour and a privilege to have the opportunity to serve as a Judge of this Court.  

Today feels as surreal as it did all those years ago when I left a smaller firm in Tasmania to work at Arthur Robinson & Hedderwicks, now Allens.  Although they were vastly different firms, I enjoyed my time at Murdoch Clarke and Allens immensely.  Many of the solicitors I worked with at Allens have become lifelong friends, and I am touched to see some of them here today, and by the presence of old school friends from my high school.  

I am incredibly proud of my connection to Tasmania.  I am also proud of what I hope my achievement means to other Tasmanians.  In fact, the last 12 months has been a period in which a number of Tasmanians with a background in the law have achieved great milestones.  In November 2023, Justice Beech-Jones was appointed to the High Court, Fiona Spencer SC and Tamika Spencer-Bruce SC of the Victorian Bar took silk, and in January this year, Princess Mary became Queen Mary of Denmark.  And so I am in good company, and no, I did not know Queen Mary at law school.  

I am acutely aware that I wouldn’t be sitting here today if it were not for the help, support and love of many people.  I read with Melanie Sloss, now Justice Sloss of the Supreme Court of Victoria and then after her Honour took silk with Simon Marks KC.  At the time, Justice Sloss’ room was on level 18 of Owen Dixon Chambers West.  After the reading period, I spent some time in Joan Rosanove Chambers before returning to level 18 when the opportunity arose.  I remained there for 13 years, and over that time, level 18 included legends such as Peter O’Callaghan QC, James Merralls QC, Jack Fajgenbaum KC, and John Karkar KC, to name just a few.  I will never forget the morning teas at which Peter and Jim, in particular, would exchange war stories and anecdotes about the Bar.  As you have heard, the floor has been through a period of change and renewal.  It was and still is a truly great floor, and I will miss my friends and former colleagues on the floor immensely.  

I have worked with many great Barristers over the years, those who led me and those who I led.  There are too many to name and, while I am loathe to single out particular individuals, I do wish to particularly acknowledge the influence of Ray Finkelstein, John Sheehan, Philip Crutchfield, David Batt and Phil Solomon.  I am indebted to them for their support they have shown me in many ways.  

I am also greatly indebted to the Victorian Bar.  As those who are here today know, it is an amazing institution.  In addition to the great legal services it provides to the community and the Courts, it is, in my experience, an incredibly supportive and collegiate environment at which I’ve had the opportunity to forge many valued friendships, and I am overwhelmed to see so many of those friends here today.  It was on the first day of the readers course in November 2002, that I met Justice Timothy McEvoy, who I am proud to say is a dear friend and now a colleague on this Court.  

I also thank the many instructing Solicitors with whom I have formed good working relationships over the years and many of whom, may I say, I regard as friends, for whose loyalty and support I am eternally grateful.  I was fortunate to have four 
readers, Judge Barbara Myers, Alexandra Folie, Brad Holmes and Penny Renc.  I thank each of them for the special bond that comes from the mentor/reader relationship and for their friendship.  

Thanks also to my two incredible executive assistants, Rita Salanitri and Tracey McLean, for their support.  I wish to express my gratitude to Glenda McNaught, who accepted me onto her list when I commenced at the Bar.  I also express my gratitude to the Clerks of List A, the fabulous Darren Milo and David Andrews before him, and my gratitude to all the dedicated staff who have worked in the List Office over the years.  

Finally, and most important of all, I thank my family, in particular, my mother who is here today, and my father and other family who are viewing today’s proceedings in Tasmania.  Our parents instilled in us a strong work ethic.  It is only as adults that we have come to appreciate the sacrifices they made and all they have achieved.  Finally, to my partner Colin and his boys, Harry and George, thank you for your ongoing love and support.  

I am acutely conscious of the privilege that I have been afforded to serve as a judge of this Court.  Whatever anxieties I may have about this new role and the expectations that come with it, they have been alleviated considerably by the generous welcome and encouragement I have received from the Chief Justice and my new colleagues here at the court, and by the presence of everyone here today.  I am very much looking forward to the next chapter.  Thank you.

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

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