Welcome - The Honourable Justice Maree Kennedy

ADDRESS AT THE WELCOME ON THURSDAY 28 JULY 2016 TO THE HONOURABLE JUSTICE MAREE EVELYN KENNEDY UPON HER APPOINTMENT TO THE SUPREME COURT OF VICTORIA BY DAVID O’CALLAGHAN QC, SENIOR VICE-PRESIDENT OF THE VICTORIAN BAR COUNCIL

May it please the Court.

I appear on behalf of the Victorian Bar to congratulate Your Honour on your appointment to this Court.

It is my distinct personal honour - and pleasure - to do so because Your Honour Justice Kennedy and I each had the privilege of beginning our professional careers, straight after admission to practice, serving as Associate to Justice Keely. His Honour was in his time the leader of the Industrial Bar in Victoria, before his appointment as a foundation Judge of the Federal Court of Australia. He was a great mentor to us both and I am sure that he is looking down at the Banco Court today with enormous pride in Your Honour’s elevation to this Court.

Your Honour comes to this Court from more than 9 years as a Judge of the County Court– the last nearly 5 years as Head of the Commercial Division of that Court.

Your Honour was educated at Loreto Normanhurst in Sydney; Genazzano College in Kew; and at Monash University, graduating Bachelor of Economics, Bachelor of Laws; and later Master of Laws.

You served Articles with Andrew Guy at Arthur Robinson & Hedderwicks, now Allens Linklaters.

You were admitted to practice in March 1987 and then served as Associate to Justice Keely.

Your Honour then returned to Monash Law School as a full-time Tutor for some 18 months.  You taught, amongst other subjects, the benchmark courses in Administrative Law and Property Law.

You also substantially completed your Master’s degree, with the legendary now-Emeritus Professor Ron McCallum as your thesis supervisor.

Your Honour came to the Bar in the March 1990 Readers’ Course and you read with another legend, Stephen Kaye, now Justice Kaye of the Court of Appeal.

You practised at the Bar just short of 17 years– of those, more than 4 years as Silk.

Your Honour was appointed to the County Court on the 1st of May 2007 – a critical time in the establishment of what is now the Commercial Division of that Court.

The Courts Legislation (Jurisdiction) Act 2006 had been passed in July 2006, giving the County Court unlimited Civil Jurisdiction, effective the 1st of January 2007; and Judge Anderson had begun a Commercial List Pilot on the 1st of July 2006 in anticipation of the expected substantial increase in Commercial cases once the removal of the jurisdictional limit came into effect.

From your early days on the Court, Your Honour worked closely with Judge Anderson.  Working with His Honour, you accepted responsibility for the promotion and development of the Commercial List and its administration.

In June 2008, Your Honour established and headed the Banking & Finance Division of the Commercial List.

In September 2011, Your Honour was appointed Judge in Charge of the Commercial List; and in April 2014, that became the Commercial Division of the Court.

Under Your Honour’s leadership, the Commercial List and now the Commercial Division has been, to use Judge’s Anderson’s words, a “powerhouse of innovation”.

I am also reliably informed that you hate long meetings and like to be short, sharp and direct.  One of your colleagues, who shall remain nameless (it was Judge Paul Cosgrave), says that in your haste you will sometimes burst into his room without knocking.  Head-down in concentration on whatever he is working on, he doesn’t need to look up but just says, “Hi Maree!”.

Your Honour worked to bring about the assignment of 4 Judges to the work of the Commercial List; and the appointment of 2 Judicial Registrars; a Commercial Court Co-ordinator; and the County Court Self-Represented-Litigants Co-ordinator.

In May 2007, when Your Honour came to the Court, there were just 60 cases in the Commercial List Pilot.

Last year, nearly 50% of all civil initiations in the County Court were in the Commercial Division – more than 2,600 of them.

Your Honour’s first Commercial trial was a referral by Judge Anderson in your first week on the Court for a trial on the issue of liability.

The claimed breach of a restraint of trade clause in a sale of business contract ran 10 sitting days, finishing on a Wednesday.  Your Honour didn’t even give yourself the weekend and you delivered Judgment two days later.

Moreover, Your Honour’s judgment dismissing the case was upheld by a unanimous Court of Appeal; and the High Court refused Special Leave.

Your Honour’s 2008 judgment in Bensons Funds Management1 was, and still is, the only authority in Victoria on the fascinating issue of the personal liability of a stakeholder in the context of sub-section 24(2) of the Sale of Land Act to make good to a purchaser, deposit moneys paid out by the stakeholder to the vendor and vendor’s estate agent and solicitor, where the vendor breached the contract of sale.

1 Bensons Funds Management Pty Ltd v IMMS Financial Ltd & Ors [2008] VCC 858 (8 August 2008)

The trial ran 3 sitting days, with Silks & Juniors on each side.  Your Honour’s 40-page judgment was delivered in 2 weeks and a day.

The eminent senior Silk for the unsuccessful Defendants   did not, it’s said, even think of appealing; and the substantial text on the Sale of Land Act published late last year recognises the significance of Your Honour’s 2008 decision.

Your Honour can also write with a certain Denning-esque flair. Cibalevski  v Ristesvski was a trial about  a partnership dispute.  The business was an aquarium business.  The issue was duress.  The alleged standover men were called “Nick” and “Paul”.  Your judgment commenced as follows: “Mr Cibalevski and Mr Ristevski are both passionate about fish. Mr Cibalevski has been interested in tropical fish for some 25 years.  Mr Ristevski has similarly been interested in fish for some 28 years; his interest being in “larger and more aggressive fish”.  For those listening who want to see what happened in the Great Piscatorial Dispute of 2009, the cite is  [2009] VCC 1270 .

Your Honour’s 7 am starts are well known, especially to your Associates, and it was rare in the County Court that even the most difficult and complicated judgment was not delivered within 2 or 3 weeks.

Your Honour has the reputation of being an active Judge; asking for a list of issues, and working with counsel to limit them; and asking of them questions such as “Given that your case is thus and such, why do I need to hear this witness at all?”; and in taking counsel beyond what they had in mind to present.

Your Honour has been a generous and supportive mentor to all your Associates. You have invested much time in all of them.  Five - Georgia Berlic, Victoria Compton, Patrick Donovan, Lisa Papadinas and Fiona Crock - have since joined the Bar.    Georgia recalls that you were very supportive when she was working for you and studying for the Bar Exam at the same time. Georgia says she was so excited when she found out that she had passed that she rushed out and caught you in the passage near the Judges’ entry-doors to the courts.  The exuberance of your combined spontaneous rejoicing brought Judge Anderson’s Associate out, to pray for just a little restraint as His Honour was sitting on the other side of the door!

On behalf of the Victorian Bar, I wish Your Honour joy in your appointment, and long, satisfying and distinguished service as a Judge of this Court.

May it please the Court.