Retirement of the honourable Justice David Habersberger from the Supreme Court of Victoria

Date: 29 Apr 2013
Author/Organisation: Reynah Tang, Law Institute of Victoria
Address on the occasion of the retirement of the honourable Justice David Habersberger from the Supreme Court of Victoria by Reynah Tang, President of the Law Institute of Victoria on  Wednesday 20 March 2012 at 4:30 pm in Banco Court.
  1. May it please the Court.
  2. I appear on behalf of the Law Institute of Victoria and the Solicitors of this State to pay tribute to Your Honour’s service in the Law over many years.
  3. Your Honour began your education at the North Balwyn State School and then at Wesley College.
  4. At Wesley College, you played in the first XI and the first XVIII.  You were a good cricketer.  And perhaps that explains one of the very few flashes of displeasure on Your Honour’s always-smiling countenance when, playing for the Bar against the Institute, you were nick-named “Tufnell” – an occasionally inspired but otherwise patchy English cricketer.
  5. In your final year at Wesley, you were Vice-Captain of the School and Dux of Humanities.
  6. That promise won you a resident scholarship to Queen’s College within the University of Melbourne, where you also excelled and contributed to your community.
  7. You were one of the founders of the Queen’s Law Students Society, which organised an annual law dinner – the Queen’s Inn Dinner.  In your fourth year, you were elected President of the Queen’s College Sports & Social Club – the General Committee elected by the student body.
  8. You graduated with an Honours Arts Degree in Political Science; then with a first class Honours Degree in Law.
  9. You served Articles with the late Eric Permezel at Blake & Riggall – what is now Ashurst.
  10. Blakes dates its history back to the 1840s.  It represented a number of Western District graziers and Melbourne business people.  However, J R Burt had built a formidable corporate and commercial practice, and your Principal, Eric Permezel, with Alan Lobban, headed a formidable litigation practice.
  11. Your Honour has described your desk in a corridor outside the strong-room in the basement of 120 William Street.
  12. That was an earlier era.  Blakes had about 15 partners in its modest building at 120 William Street.  Ashurst now has palatial offices at 181 William Street; some 175 partners in Australia; and over 400 partners world-wide.
  13. After completion of Articles and admission in March 1972, Your Honour went pretty well straight into your year’s service as Associate to Chief Justice Sir Garfield Barwick, and from there to the Bar.
  14. Your Honour may not have spent any time as a solicitor.  However, for the three years of the Pyramid Collapse Enquiry – a time when the Bar Rules strictly prohibited counsel from setting foot in a Solicitor’s Office without specific dispensation to do so – Your Honour worked each day in a floor of the then Minter Ellison building at 40 Market Street.
  15. There was no breach of the Bar Rules – for the floor for the Enquiry was devoted to that purpose and sealed off from the Firm.  However, Minter Ellison were the solicitors for the Enquiry – and those engaged on that felt Your Honour’s daily nearer presence.
  16. As Ian Fleming put it, nothing “propinqs” like propinquity.
  17. Your Honour had the power to subpoena witnesses to appear before the Enquiry.  Your Honour subpoenaed, amongst others, the Governor of the Reserve Bank of Australia.
  18. This provoked immediate outrage in a high official at the Reserve Bank who telephoned Minter Ellison to advise haughtily that “The Governor of the Reserve Bank does not take Subpoenas!”
  19. Suffice it to say that the Governor did attend in person to give evidence and be examined.
  20. In the massive cattle contamination class action of McMullen v ICI, Your Honour’s former Reader, Geoff McArthur (now SC) was counsel from the very outset of the case in late 1994.  There were some 900 individual plaintiffs – each with a large enough claim to be a claim alone.  The case wasn’t finally concluded until about late 2000.
  21. Bill Gillard QC – now retired from this Court – and present in Court today in honour of your retirement – was brought in to lead McArthur in the Federal Court.
  22. In May 1997, when Mr Justice Gillard (the second Mr Justice Gillard) was appointed to this Court, McMullen v ICI was in full flight.
  23. Your Honour inherited the matter upon Mr Justice Gillard’s appointment, which was no doubt a very kind and generous contribution to your mortgage.
  24. At your Welcome, Your Honour singled out for mention the firm of J M Smith & Emmerton and David Hooper of that firm, who briefed you in your very early days to appear in the Camberwell Magistrates’ Court to resist an application to set aside a maintenance order in favour of the wife.
  25. Sadly, David Hooper died not long after your appointment.  However, David Lee and Rosemary Mulcare of that firm continued to brief Your Honour – and Rosemary Mulcare is in Court today.
  26. The Solicitor-General has spoken of Your Honour’s service to the Court and, while I won’t intrude on that, I did note with interest the intriguing headline in Lawyers Weekly on one of your cases last year:  “Lawyer at the Centre of Bunny Mystery”.
  27. Of course, it turns out the case involved the return of a painting by Rupert Bunny to its rightful owners by a solicitor who had received it from a grateful client some years earlier.
  28. We’ve heard of Your Honour’s contributions to the various communities of Wesley College and Queen’s College and the Bar when you were in them.
  29. Your Honour has loyally followed through on that.
  30. You served Queen’s College as a non-resident Tutor in Law; and as a Member of the College Council for some 13 years – of those, some 7 years as President of the Council.  You were also President of the Queen’s College Foundation.
  31. Major achievements in your Presidency of the Council include the construction of the Scott Terraces for visiting scholars andthe Clarke Lapthorne apartments for graduate students.  Your Honour also supervised the process leading to the appointment of the seventh (and present) Master, Professor David Runia.  Your Honour and your family have been significant donors to the College, in particular for the graduate residences that opened in 2012.
  32. You became a Fellow of the College in 1992 and were elected as Principal Fellow in 2011.
  33. While still in practice as a silk at the Bar, Your Honour brought your legal expertise to the service or your son James’ school, Carey Baptist Grammar School, serving as a Director on the School Board.
  34. Your son James, a Hawthorn supporter, took great delight in one of your cases when you acted for Gary Buckenara in seeking a clearance.
  35. Now I am uncertain whether this was the case in which he was seeking clearance from Subiaco to Hawthorn or the subsequent case when he sought transfer from Hawthorn to West Coast, where he was less successful.[1]
  36. In any case, it’s said that James’s support of Hawthorn has tested Your Honour’s loyalty to St Kilda.
  37. For several years, Your Honour has also generously spoken in the Law Institute Orientation Program for Articled Clerks and New Lawyers.  You were always a hit – engaging easily with your audience, giving practical insights and advice, and de-mystified the judiciary.
  38. Asked in an interview with the LIV Young Lawyers Journal what attracted you to the role of a Judge, Your Honour answered:  “The opportunity to finish my professional career within the law in a challenging role, but one which gives me the chance to give back to the community.
  39. Your Honour has, if I may be permitted to say so, met the challenges and given back to the community with distinction.
  40. On behalf of the Law Institute of Victoria and the solicitors of this State, I wish Your Honour and your wife, Pam, all the very best in your retirement.
  41. May it please the Court.

[1] Subsequent research has revealed that David Habersberger , not yet silk, represented Gary Buckenara in his application to the Supreme Court of Victoria in March 1987 for a declaration a provision in his contract with the Hawthorn Football club was void as a restraint of trade, in order for him to transfer to the West Coast Eagles.  Buckenara’s claim was dismissed.  Buckenara v Hawthorn Football Club Ltd, [1988] VR 39.  Playing for Hawthorn in the 1987 season, Buckenara put his team into the Grand Final by kicking a goal after the final siren from about 55 yards out on a free kick to defeat Melbourne in the Preliminary Final.

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