Middleton, Justice John --- "Farewell of Justice Middleton" (FCA) [2022] FedJSchol 23

Sometimes subtle criticism of Judges occurs. I observed that when I have decided a proceeding in which a commentator approves they refer to me as Justice John Middleton. When a commentator disapproves they just refer to me as Middleton, and the tone of the report is dismissive.

Your Honour has often been the subject of barbs. There was the time a newspaper referred to you as a long-serving Judge. There was no use of the words like eminent, learned or highly respected. Your Honour had every right to highlight this fact in an after-dinner speech you delivered some time ago. Perhaps to a slightly higher degree than other Judges, your Honour has long realised the role that the media plays in providing the public with accurate accounts of court proceedings.

In the Essendon Football Club case, which no doubt to your HonouraEURtms great displeasure kept your Honour on the front cover of most newspapers for several weeks dealing with the supplement scandal, the media showed immense interest in the proceeding and the court processes that were involved. Your Honour allowed delivery of a judgment summary to be televised. You were later told by colleagues that it was interesting because even after 15 minutes no one quite knew which way your Honour would decide the case.

Your HonouraEURtms carefully crafted summary was likened to a detective novel with the reader not knowing who the guilty party was until the very last sentence. I havenaEURtmt checked the ratings for the telecast, but I am sure they were appropriately high given your HonouraEURtms involvement. Adam Baker has scoured the memories of many of your HonouraEURtms colleagues from your days on the Bench and at the Bar.

Apparently, at a David Jones fashion event at an establishment in Sydney one day after Court aEUR" no one quite knows what your Honour was doing there aEUR" your Honour struck up a conversation with a rather cool-looking, dreadlocked American who was talking about a secret gig that he was to perform at The Domain at the weekend. When retelling the story, your Honour mentioned that he had a stage name relating to puppies or some other type of pet. As it turned out, the rapper had no idea he was talking to a Judge of the Federal Court, and the Federal Court Judge had no idea he was talking to the one and only Snoop Dogg. This is seen as being wholly consistent with your HonouraEURtms genial nature and capacity to strike up conversations with absolutely anybody, from registry staff to international celebrities, and everybody in between.

Your Honour is also dedicated to your health, often saying, aEURoeA healthy Judge is a happy Judge.aEUR For reasons that can only be guessed at, your Honour takes a magic liver potion each morning, and it seems to work. However, your dedication to health has sometimes been your undoing. We at the Victorian Bar all recall how you tore your bicep doing clap push-ups in 2019, at the age of 67. Musically, your HonouraEURtms rousing baritone voice has entertained many, and you have even managed to relearn to play the piano during the pandemic lockdowns of 2020 and 2021.

Tim Dowling was a young lawyer recovering from a shoulder reconstruction and remembers fondly that every time you saw each other around the Court, your Honour would literally bump into him and grab him by the shoulder or give him a hug of friendship. Your HonouraEURtms former Associate, Andrew Bailey, remembers your generosity of spirit and approachability. At any given function, your Honour could be seen giving advice to a Chief Justice and then, just a few moments later, giving advice to a young lawyer who had just started reading and was looking to make a go of it at the Bar. Other memories from Philip Crutchfield KC, Sam Rosewarne SC and Banjo McLachlan revolve around your relentless optimism, power of personality, and ability to see the best in people.

Turning rest days in a case from Friday to Monday because the Flower Drum was open on Monday is fondly remembered. Holding exercise classes at 12.15 so that everybody, including juniors, instructing Solicitors and support staff could still attend lunch is also fondly remembered. Of course, most of these incidents occurred whilst you were a Barrister. I pause here to note that in what might be your last aEUR" one of your last exercises of judicial power, your Honour has directed me to say to the Chief Justice that, to the best of my knowledge, for the last 16 years, both here and particularly while representing the Court at official conferences overseas, your record has been unblemished and blameless.

In fact, your record has been duly recognised. Earlier this year, as we have heard, you were appointed a Member of the Order of Australia for significant service to the Judiciary, the law and to professional associations. It was truly well-deserved recognition. Your Honour, I would like to conclude with just a few personal observations. It is rare to speak at the farewell of a Judge who has been such a fantastic mentor, genuine friend and staunch supporter as you have been to me.

IaEURtmve known you for nearly 20 years. During that time, IaEURtmve learned a great deal from you about how the law really works, about how to overcome obstacles that spring up in professional life, about how to look after your colleagues, and about how to have a great time whilst still doing the work to the highest standard, and my experience of your HonouraEURtms friendship and support is far from unique at the Victorian Bar. I thank you for all the encouragement and the assistance that youaEURtmve offered me. As retirement beckons and with more time on your hands after the challenges of the Bench subside, we are all looking forward to continuing our association with you. On behalf of the Victorian Bar, I wish your Honour a long and happy retirement with Judith, your sons and your granddaughters. I thank you for the first-rate service you have given to the Court and to the people of Australia. May it please the Court.

ALLSOP CJ: Thank you, Mr Hay. Ms Wolff, President of the Law Institute of Victoria, and representing also the Law Council of Australia.

MS T. WOLFF: May it please the Court. I appear on behalf of the Law Council of Australia, the Law Institute of Victoria, and the Solicitors of this State, to farewell your Honour as a Judge of this Court. I too echo the acknowledgement of the traditional custodians of the lands on which we gather, the Wurundjeri people of the Kulin Nation, and pay my deep respects to elders past, present and emerging. Your Honour, it is a privilege and a great pleasure to speak today on your retirement from this Court, not least because your Honour has made such a significant impact on generations of lawyers and Barristers in this State.

From your 16 years on the Federal Court and the past six years as President of the Australian Competition Tribunal, and in your longstanding role as Member of the Australian Law Reform Commission, your Honour has been a brilliant and inspirational jurist with impeccable reputation for fairness and legal acuity. Not only did you impart professional guidance, valuable wisdom and legal craft, but you did so effectively and with great impact and in fine style. YouaEURtmve been an authentic and open-minded jurist, enthusiastic in your love of learning, and youaEURtmve brought much joy to all who have come before you and in your orbit. Inside the courtroom, you are the epitome of a respectful, highly attentive, keen and intellectually engaged jurist.

As a senior member of the legal profession, your Honour willingly shared the lessons gained from your deep knowledge of the law and legal experience, and also looked outwards and forwards, and ceaselessly inspired your peers and juniors alike. You have a deserved reputation, too, for celebrating brilliantly on every occasion. As weaEURtmve heard, at the end of a big case or when successful decisions fell your way, or often just because, your largesse and, as weaEURtmve heard, lunches are legendary. We are told that on days when your Honour is free, it is not uncommon for you to round up a sizeable chunk of the senior ranks of the Victorian Bar, ensconce yourselves at a fine restaurant, and effectively delete everyone from duty for the rest of the afternoon.

Your Honour leaves a tremendous legacy through your intense work as a Judge, through your practical demonstration of what it means to have a meticulous and enduring commitment to excellence, and when it comes to excellence itaEURtms likely true to say that your Honour has learned from some of the very best. As we have heard from my learned friend, the President of the Victorian Bar, back in 1979, when you were just a fledgling lawyer emblazoned with First Class Honours from Law at Melbourne University and Oxford, you landed an associateship with the late, great Sir Ninian Stephen inside the High Court.

Later that year, you were admitted to the Bar and began reading with the Honourable Michael Black, just before he took Silk. His Honour later was Chief Justice, as we know, of this Court for 19 years, and he presided over your welcome ceremony here in 2006. Also sitting on the Bench at your welcome in 2006 was one of your great mentors, the late Alan Goldberg. It was Alan who, in the early 1980s, lured you away from a brief period at Latham Chambers and cemented your position as a Foundation Junior Member of Aitken Chambers. The 27th floor of Aitken Chambers, as weaEURtmve heard, was better known as the Golan Heights. For 20 years at Golan Heights, your Honour flourished among a squadron of brilliant Senior Counsel: Alan Goldberg, Ray Finkelstein, Cliff Pannam, Ron Merkel, and the late Ron Castan.

Their focus was very much on Commercial Law, and the late 1980s and early 1990s generated a seemingly endless stream of high-profile commercial cases in Melbourne, extraordinary and controversial takeovers and mergers, followed by huge insolvencies and the collapse of major banks. Your Honour featured in one particularly prominent matter during those years, leading a team of Barristers in 1990 and 1991 to represent the State Bank of VictoriaaEURtms board and senior officers, and most of the directors of Tricontinental, as the Woodward Royal Commission examined the merchant banks collapse.

It was during the Royal Commission that your Honour was thrilled to learn that, at the age of 38, you had made Silk. As your commercial practice thrived, you received some very weighty briefs. In 1998 and 1999, you represented Esso Australia at the Dawson Royal Commission into the fatal explosion and fire at the Longford Processing Facility. Around the same time, you were Lead Counsel for the stevedoring group, Patrick, as it battled the Maritime Union, and 20 years ago you represented British American Tobacco in its protracted and controversial defence of damages claims brought by Rolah McCabe.

Your appointment to the Court brought a much broader range of work: tax, intellectual property, administrative law and more, and your Honour relished the challenge. One of the highlights of your time on the Bench was a civil penalty case brought by the corporate regulator against the directors of collapsed property group, Centro. In a decision that ran to 186 pages, your Honour, as weaEURtmve heard, highlighted the simple premise at the heart of directorsaEURtm duties, which is that they need to read, understand and focus on matters before them and apply their knowledge, instead of relying exclusively on the companyaEURtms internal management, or even the advice of external advisers. In short form, directors had to ask the dumb questions. That decision is still used as a crucial teaching tool in corporate law and in directorsaEURtm courses today.

Your HonouraEURtms instinctively curious nature is evidenced by your breadth of activities in law. As a member of the Australian Law Council in the mid-1990s, you helped establish the uniform conduct laws for barristers throughout Australia. And we know your Honour great delight in working with the Australian Law Reform Commission and the Australian Competition Tribunal, where you worked alongside non-legal professionals; topnotch economists and others, who were experts in their own fields and able to view the same problems through a different prism. On the Competition Tribunal you presided over the complex tussle by coal producer, Glencore, regarding its terms of access to the Port of Newcastle. The tribunalaEURtms decision of October 2019 was appealed to the Full Federal Court, but the High Court reinstated your HonouraEURtms decision a year ago. In another high profile matter, this time in the Federal Court, your Honour overruled the competition regulatoraEURtms decision to block VodafoneaEURtms merger with telecommunications rival, TPG. And the Law Reform Commission, when you were there you worked on copyright matters in the digital economy, third party litigation funding in class actions, and a review of Commonwealth laws to ascertain their consistency with traditional rights and freedoms.

On top of this intellectual curiosity and collegiality, your Honour has always demonstrated your craft with boundless optimism, warmheartedness, and a genuine interest in other people and what they are doing Your Honour has left a profound legacy and made an immense contribution to furthering the practice, the culture, and the code of the legal profession. Your Honour has planned carefully for your retirement, none of that riding off into the sunset as the music fades and the credits roll. Among other things, we understand you will be doing some teaching at the University of Melbourne, and we expect you will take every opportunity now to travel a little bit more. In closing, we thank your Honour for your extensive contribution and service to the law and to the profession. We warmly wish you and your family the very best as you leave the court. May you enjoy a long, satisfying and rewarding, thoroughly wonderful retirement. May it please the court.

ALLSOP CJ: Thank you, Ms Wolff. Justice Middleton.

MIDDLETON J: Thank you. Your Excellency, Chief Justice, your Honours, distinguished guests, ladies and gentlemen, family, friends and colleagues aEUR" I think that covers the field with some duplications aEUR" I thank you all for your presence here this morning.

The court is honoured and I am deeply grateful and delighted that so many people have given up their time to attend this morning to witness my departure from the bench, including many people that have been already addressed: Her Excellency Linda Dessau; her husband, Mr Tony Howard; Chief Justice William Alstergren and his wife, Kate; former governor Alex Chernov and his wife, Elizabeth; The Honourable Michael Black, former Chief Justice of the Federal Court of Australia. Former High Court judges: The Honourable Ken Hayne; The Honourable Susan Crennan; The Honourable Patrick Keane, accompanied by Dr Shelley Keane, his wife; The Honourable Geoffrey Nettle. The Honourable Karin Emerton, President of the Court of Appeal, the Supreme Court of Victoria. Existing and retired members of the judiciary. Ms Rowena Orr, Solicitor-General for Victoria; Mr Peter Dunning, President of the Australian Bar Association; Mr Allan Myers, Chancellor of University of Melbourne; and Dr Paul Hicks Headmaster of Camberwell Grammar and his wife, Susan. .

Chief Justice, Mr Attorney, Mr Sam Hay, Ms Tania Wolff, I am most grateful for your remarks and expressions of goodwill from those who you represent.

These remarks have been delivered by people who are obviously fearless, clearly unbribable, although IaEURtmm not entirely sure they are friends of the truth, the whole truth and nothing but the truth, but then they are not under oath. Then, after all, the retirement of a judge is an occasion for hagiography and perhaps the opportunity for flattery and half-truths, although IaEURtmve always thought it may be that flattery from the profession is better suited to speech on the appointment of a judge, rather than the retirement where you face a long prospect ahead praise, a little sycophantism, would appear more opportune than candour.

The other thing I have noticed is there seems to be more of a celebration of my retirement than there has been when I was elevated to the bench. I can understand some of my colleagues who have chambers in close proximity to me being very keen that I go. I am apparently have a rather loud, raucous, wicked laugh. I would call it infectious. And then Justice Mordy Bromberg has for years wanted me to retire so as to move into my chambers.

In Australia there is a constitutional rule that no judge may serve in federal judicial office beyond the age of 70 years. Other jurisdictions have different rules on the topic, but these rules all stand as an implementation of a higher principle, namely, judges should be subject to a mandatory retirement at a fixed age to avoid the cost of overstaying, such as a result of mental decrepitude in office. I am thus leaving to save the Commonwealth unnecessary expenditure and the Chief Justice possible embarrassment, or perhaps I should say further embarrassment.

I do not propose to offer any parting observations of my views about the current state of the law, or the judiciary, or the system of judicial administration. Everyone here will be aware of how fortunate we are in Australia to have a judiciary which is independent and commands the respect of the community for its judicial decisions. It underpins our democratic structure. My judicial colleagues are exemplary in their adherence to their oath of office and their dedication to their judicial responsibilities. I will miss our close association and working together.

There have been so many people that have assisted me along the way as a student, associate, barrister, judge, but it would trespass on too much time to identify them individually. You all know who you are, and I hope you will accept this as a public expression of my gratitude for your encouragement, advice and friendship.

I would like to acknowledge the Bar where I spent 26 or so enjoyable and fulfilling years. I had the good fortune to share my time at the Bar with my readers and many junior barristers who assisted me whilst I was at the inner bar Pamela Tate, who is here today, was my last reader, who upon my taking silk needed to find another mentor. She moved to read with Geoffrey Nettle, a former High Court judge, but I like to think it was my grounding and not his that was the basis for PamelaaEURtms appointment as Solicitor-General for the State of Victoria and then to the Court of Appeal of the Supreme of Victoria.

The bar occupies an essential role in the administration of justice. In some ways, by their training ability, a barristeraEURtms contribution to the whole system of justice is more significant than a judge. Whilst on the subject of barristers, I would like to apologise. I want to apologise to all those counsel who did not have the ability to present in a coherent manner all their arguments before I intervened. I often resolved to restrain my impetuosity, but when the proceeding was in full flight and my excitement of the prospect of full debate got the better of me, off I went. I am sorry.

We should not forget the solicitor branch of the profession. The work of a solicitor in the administration of justice is essential and of high importance.

I would like to say something in recognition of why IaEURtmm sitting here, even if for not much longer. Front and centre is my wife, Judith: a wonderful, wife, mother and, more recently, grandmother. Also an experienced and well-respected parliamentary counsel in her own right over many years. Judith and I have been married for 46 years. Now, I can only speak for myself, but I have been very happily married. Poor Judith, she is known by my friends at St Jude for having to put up with me. Our sons, David, Thomas and Tony, have developed into fine young men, and we are so proud of them. Two are lawyers who are here today, one representing each branch of the profession, and I apologise for that shadow that you will have hanging over you, but I am confident you have already and will forge ahead with your own personalities and careers. David, the non-lawyer amongst our family, cannot be here today because heaEURtms actually working. So far two of my boys have inherited their fatheraEURtms good fortune and managed to marry or become engaged to two outstanding people, Laura and Camilla. And Camilla has just been told she passed the Bar examination yesterday, so congratulations.

Throughout my time in the Court my Executive Assistant has been Ms Susi Ivandic. She has put up with my sometimes rowdy Associates and efficiently carried out the many tasks that are required in running a smooth docket and my chambers. Her friendly demeanour has endeared her to all. She, selflessly, anticipated my needs and those of others. She has been the best EA any Judge could wish for aEUR"picked for me by Alan Goldberg who was a mentor of mine and a very good friend.

I have had the considerable assistance of 18 fine Associates. Each Associate has brought different skills and personalities to my chambers. Each has worked assiduously to ensure that the drafts of my reasons, and perhaps even their own, have emerged in respectable form. I am pleased to be able to call them friends, and I look forward to following their developing professional careers.

I have often wondered what they think of me, and I found out recently when we celebrated my retirement recently with my EA and Associates.

In a presentation made by the most senior Associate present, Banjo McLachlan, he said this:

IaEURtmve heard it said that associateships are like pizza - even when you have a bad one itaEURtms still pretty good. And we all know that an associateship with John is like a pizza sprinkled with Lindt balls and Dom Perignon - a bit unorthodox but filled with all the good stuff and youaEURtmll probably wake up with a hangover and diabetes.

I do not think that was a bad review, if I do say so myself.

During my 15 years on the Bench, the Court Officers, Registry staff, Security staff, have been unfailingly courteous and helpful; I thank them all. I am extremely grateful to Sia Lagos and her team at the National Operations Registry for the assistance they have provided me. The arrangements made this morning provide a perfect example of the attention to detail and the efficiency of the Court staff,
in this case under the help of Dimitra Argyros.
I have also been most fortunate to have served under three outstanding Chief Justices aEUR" Michael Black, as you have heard, I read with when I first came to the Bar; Patrick Keane, co-student at the University of Oxford and good friend for many decades, along with his wife Shelley; and James Allsop, judicial colleague when I first came to the Bench and also good friend aEUR" each an intellectual leader of the Court, each with the necessary skills to deal with the inevitable major administrative and structural issues that arise, and each has been closely attentive to the welfare of the Judges, the Court staff and the litigants who come to this Court.

Whilst looking back, for the moment, I am glad that Dr Paul Hicks, Headmaster of Camberwell Grammar, who was appointed when I was Chairman of the School Council and was at my welcome, and his wife Susan are here today, as is my friend Alan Myers, Chancellor of University of Melbourne where I spent some 10 years on the University Council. I enjoyed immensely my association with both these educational institutions; both have thrived under Paul and Alan with them at the helm.

As has been mentioned, I have also had the opportunity to work as part-time Commissioner of the Australian Law Reform Commission under the excellent leadership of Professor Ros Croucher and Justice Sarah Derrington. The Australian Law Reform Commission has a very important role to play in the development of law in Australia, and it has been a privilege to work with the very many talented and enthusiastic young lawyers at the Commission and in recent years work with Sarah Derrington on many significant references.

I would also like to acknowledge the role and work of the Australian Competition Tribunal where my time as President expires at the same time I finish with the Court. The Tribunal has a significant role to play in the application of competition law, and I thank the Judges and Lay Members who have been serving on that Tribunal and Registrar Tim Luxton for his valuable assistance.

Judges are sometimes subject to public scrutiny and criticism. When I handed down the penalty decision in the Centro proceeding (Australian Securities and Investments Commission v Healey (No 2), there was a concern in some quarters that the penalty was perhaps too lenient. This was graphically displayed by a cartoon in one of the daily papers, depicting myself aEUR"in itself, very unflattering aEUR" with a person, presumably a Centro director, being bent over my knee with his pants down, being spanked by a feather, the caption being, aEURoeYouaEURtmre a very naughty director.aEUR

Now, some of my colleagues consider that I have been the recipient of too much media attention, and they feel that this cannot be accidental. In the Essendon Football and Australian Sports Anti-Doping Authority case (2014) dealing with the so-called supplements saga, remember that, for those who are not from Victoria, Aussie rules is a religion, so it did get a lot of press in Victoria where there was immense interest in the proceedings. Thus, I allowed the first case management hearing to be televised, which turned out not to be riveting viewing, and the delivery of a summary of the judgment.

I just want to share you what the press thought of the case management hearing, because there was a sports blogger commentator, Titus OaEURtmReily, who made these observations about the whole event, and it went along these lines:

• A lot of middle aged white guys talked and talked and talked.
  
• While banging on for hours, they all made a ridiculous amount of money.
  
• At no point did someone say aEUR~you want the truth?aEURtm which was the only reason I was watching.
  
• I learnt that court is really boring and nothing like My Cousin Vinny or Ally McBeal.
  
• August 11 will be the trial to decide if the joint investigation (now alleged) was illegal. It will take three days, but if you watch live, it will feel like 300 days.
  
• There will be another directions hearing on July 2nd because a few of the lawyers need to cover third term private school fees.
  
• Lawyers didnaEURtmt wear robes or wigs which I thought was a real shame and detracted from the event.

And finally he said:

• I didnaEURtmt hear the Essendon theme song at the end, so I assume they lost.

So with these poor reviews and this sort of criticism, youaEURtmre probably asking, aEURoeWhy be a Judge?aEUR

When I was appointed in 2006, the answer to that question to me was very clear. Despite my well-prepared, articular arguments, erudite and ebullient presentation, Judges kept getting it wrong. I thought, aEURoeSurely, I can do better.aEUR Just like recent Silk applicants, you applied because, over and over again, your leaders would make a complete mess of the case, ignoring your tugging on the gown or handing up Post-it notes to correct errors, or having to revisit the whole case again on reply if you were given that opportunity.

The late Sir Gerard Brennan, though, posed this very question in 1996, aEURoeWhy be a Judge?aEUR After examining the essential elements of judicial functions and the manner of performance, Sir Gerard concluded, and I quote:

aEUR| In a complex society, justice would be unattainable without the sophisticated skills and unquestioned integrity of the judiciary. The high importance of the judicial office makes it a privilege to be invited to the bench; the responsibilities of the office create a continuing challenge to proper performance. The trust reposed by the community in the judiciary is an enduring comfort. The stimulus of judicial work is enhanced and its burdens lightened by the support of other judges whose character, intellect and industry command our unfeigned respect. The satisfactions of judicial life of necessity flow from an inner conviction of the service of society in a pivotal role, from the satisfaction of the aspirations of litigants, of the profession, of the public and most importantly, of oneself, and from the mutual esteem of judicial colleagues. These are the considerations, I suggest, that give the true answer to the question: Why be a judge?
Looking back on my 15 or so years and having the chance to reflect, I think Sir Gerard BrennanaEURtms comments are still applicable and provide a true answer to the question, aEURoeWhy be a Judge?aEUR

Just as at the Bar, I have also been so lucky to have enjoyed and been fulfilled by the many, many aspects of judicial life and the collegiality of all my colleagues. Over the last five years or so, many people have kept asking me, aEURoeWhen are you going to retire?aEUR with the hope in their eyes. Well, I can be quite definite now: midnight, 25 December 2022.

I will not be looking back. I plan to reconnect with the University of Melbourne to teach; have a stint as a Judge in residence; continue to get involved in various aspects of law here and overseas and pursue some more leisure and travel time. If one of my sons has his way, providing more frequent free babysitting services.

I am proud to have been a Judge of the Federal Court of Australia. I again thank you for attending today, and for so many of you who, in different ways, joined me and assisted me on my journey to this Court and in the discharge of my financial oops aEUR" meant judicial responsibilities. To adopt a phrase from a song in the musical aEURoeWickedaEUR, because I have known you, I have been changed for the better. On that note, it is now time to say goodbye from the Bench.

ALLSOP CJ: The Court will now adjourn.

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