Welcome - The Honourable Justice Michael Phillip McDonald

May it please the Court.

The Victorian Bar is delighted at Your Honour, Justice McDonald’s appointment to this Court.

Your Honour practised as a barrister for more than 25 years – of those, nearly 9 years as Silk.

Your Honour was a leader in Employment and Workplace Relations Law. You appeared regularly in this Court, in the Federal Court and in the Fair Work Commission.

Your Honour also appeared in the High Court in a number of landmark cases including:

• Patricks v The Maritime Union of Australia;
• Re Pacific Coal Pty Limited; Ex parte: The CMFEU);
• Electrolux v The Australian Manufacturing Workers Union; and
• The Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.

Your Honour’s secondary education was with the Christian Brothers at St Thomas More College and St Leo’s College.

You were a good footballer – winning three consecutive “best and fairest” awards.  It was said that Your Honour may have gone on to have a promising AFL career had it not been for one facet of Your Honour’s game. Your Honour was known as a magnificent sledger. So effective was Your Honour’s early advocacy on the sporting field towards your opponents and their obvious failings that Your Honour was warned to hang up the boots before you came to serious harm.

Your Honour was also a talented junior cricketer.

You also excelled academically.

You were only 17 when you began Law at Monash.  You then took a couple of years off, travelling to Europe and working here in Australia at a number of physically demanding jobs –

• in a steel factory, working 12-hour shifts;
• as a garbage collector in the days that garbage collectors ran, heaving the rubbish bins to empty their contents into the back of the truck –; and as a truck driver.
• I am infirmed that Your Honour made a striking figure in work boots, blue singlet and stubbies. If only your chamber mates on the 22nd floor of Aikin had seen that?

Your Honour transferred to the University of Melbourne.  You won the Exhibition in Labour Law, and High Honours in Intellectual Property and in Crime.  You graduated in Arts and Law.  In your early years at the Bar, you completed a Master of Laws degree, also at Melbourne.

Your Honour served Articles at Phillips, Fox & Masel.  You then became an Advocate, first for the Australian Public Service Association; and then for the Municipal Officers Association.

The Public Service Association was a mid-tier Union with about 30,000 members.  Your Honour was thrown in the deep end as their Advocate – literally, a one-man band.

You conducted significant arbitrations before the Australian Conciliation & Arbitration Commission, including before Full Benches of the Commission.

You came to the Bar with significant experience as an advocate.

In the Readers Course, you quickly formed an alliance with Louis Vatousios and OP Holdenson. As the intellectual rat pack of your readers course you three always sat together slightly to the left, waiting for a teacher to make a mistake of law so one of you could correct them….Judges became nervous addressing the readers course during your time.

Your seriousness and intensity earned you the nick-name, from your fellow-reader Holdenson – “the Professor”.

Others in your Readers Course included:

• Justice Michael Sifris;
• Justice Debbie Mortimer;
• Judges Kathy Bourke, Mark Taft, and Michael Tinney; Magistrate Leslie Fleming; and
• Federal Circuit Court Judge Phil Burchardt;
• The most famous of all was Con Kilias who stared in the movie, The Castle.

Your Honour read with Tony North – the leading Industrial Law junior and on the verge of taking Silk – which he did two days before the end of your Reading period – now, of course, Justice North of the Federal Court – who sends his congratulations from the Greek Islands.

Your Honour comes to this Court from the largest set of Chambers on the 22nd floor of Aickin Chambers – with sweeping views across the CBD and to the Flagstaff Gardens.

It was not always thus.

You began on the 2nd floor of Equity Chambers, with chicken wire in the windows and carpet tiles on the floor.

It’s been said of Your Honour that “doors didn’t just open – you had to kick them open”.

Your Honour’s ability and industry were quickly recognised and you became a “junior of choice” in Industrial cases.

By the very early nineties, you had developed a significant employment and industrial practice. Appearing regularly in major cases with, in particular, Dr Chris Jessup QC and Richard Tracey QC. Justice Chris Jessup is now in Italy – and already congratulated you from either Croatia or perhaps Turkey.  Justice Richard Tracey is not so far away, and sends his congratulations from Broome.

Your Honour has been described, in your early days, as “feisty” – others might say “direct”.

You had no hesitation in confronting the views expressed by the most senior representatives of your decidedly “establishment” and government clients.

One of your Leaders describes you as having “the bravado of a Woods Lloyd or Neil McPhee . . . [with] the seniority of a Michael McDonald” – “consistently . . . a most valuable junior . . . [and] a challenging one . . . [with] the confidence to differ.”

Another Leader found Your Honour “challenging” when he was under fire from the Judge and Your Honour remarked, scarcely sotto voce, that he was, after all, from Sydney.

Justice Middleton, who is in Court, recalls that the Patricks water-front dispute blew up over Easter, when he was at Anglesea; and that he, a Commercial Silk, valued, not only Your Honour’s experience in Industrial Relations, but your expertise in computers – in setting him up so he could communicate with you from Anglesea electronically.

Everything was intense. Justice North granted your opponents an injunction on the 21st of April.  You were 2 days before the Full Federal Court, and it upheld the injunction on the 23rd at 4:30 in the afternoon. That night, at 9:30, you got a stay from Justice Hayne; and you were before His Honour at 9 o’clock the next morning; and then before the full High Court in Canberra the following Monday.

And during all this, your son Jack was born.

Your Honour had 3 Readers:  Tim Jacobs, Rohan Millar and Patrick Wheelahan.  You were “a great mentor in the best traditions of the Bar” – “generous with [your] time . . . and in helping them to develop their practices”.

Your Honour was in a case with Robert Ellicott QC when you took silk.  Mr Ellicott remembers the case, and Your Honour’s role in it as his junior, well.  He has written from Sydney:  “As my junior Michael displayed all the qualities which have no doubt led to his appointment. I have no doubt he will make an excellent judge. I congratulate him.”

In the last 2 years, Your Honour has represented Toyota Australia in relation to the closure of its Altona plant; and, of course, in this Court Your Honour represented the Grocon plaintiffs in proceedings against the CFMEU.

Your Honour has extensive experience in sports law.  You have represented Cathy Freeman; you have represented Dean “the Weapon” Robinson; you have represented Andrew Lovitt. Your Honour’s advice to the AFL Players Association on the player draft led to free agency.

Your Honour served on the Industrial Law Subcommittee of the Law Council of Australia Federal Litigation Committee for many years – speaking and meeting around the country in that connection.

Your Honour was the principal architect of the transformation of List G to the List-owned model – the clerking company owned by the barristers on that List.  With Peter Jopling QC, Your Honour brought this about.  Your leadership, your courage and your financial backing made it all possible.  From a List of about 60, it has developed into a list of over a hundred.

Your Honour is passionate about your family house on Kangaroo Island.  Renovations over the years have helped to sustain the Island economy.  Happily, the renovations are now complete, and you have your new boat – before Your Honour’s transition from the Inner Bar to a judicial salary.

Your Honour has been an outstanding trial and appellate advocate.  You have served the profession and your fellow barristers.

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

May it please the Court.