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Judiciary: Welcome Judge Paul Cosgrave

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Cite as: September 2013 87 (9) LIJ, p.30

Judge Paul Cosgrave was welcomed to the County Court of Victoria on 23 May 2013. Among the speakers was LIV president Reynah Tang. This is an edited version of his speech.

I appear on behalf of the LIV and the solicitors of this state, to congratulate your Honour on your appointment to this Court.

This is a particular pleasure because your Honour served articles and began your career in the law as a solicitor at Corr & Corr, a predecessor to Corrs Chambers Westgarth where I practise.

Your Honour was articled to James Syme, a former president of the LIV who, after leaving Corrs, was appointed as the Victorian Government Solicitor.

On completion of articles and admission to practice in April 1981, your Honour remained with the firm for some two and half years as an employee solicitor.

In your time at Corrs, your Honour worked on a range of corporate and commercial advice work, primarily for clients in the finance and mining sectors.

As a second-year solicitor, your Honour was, for some seven months, seconded to work directly with a client, North Kalgurli Mines Limited, in Western Australia. At the time, it was an ASX listed company and operated an open cut gold mine about 550km east-northeast of Perth.

Your Honour served as company secretary and general counsel. It is a measure of the firm’s faith in your Honour to work alone, independently and remotely that you were given this assignment – and a measure of your Honour’s commitment that you accepted removal to this remote mining company.

Your Honour moved to the Bar in 1983. Ross Hodgens, then with Mills Oakley & McKay, saw your Honour very early in your time at the Bar in the Practice Court of the Supreme Court.

Your opponent was loud and aggressive. Your Honour was quiet and measured – and you won.

Mr Hodgens saw a particular quality in your work and determined to brief your Honour himself – a decision he never regretted. Your Honour quickly became Mr Hodgen’s counsel of choice in commercial matters. And he briefed you as junior to a number of leading commercial silks.

From the very outset, your Honour did well.You appeared, for example, in Pearce v Waterhouse, which is, I believe, the first reported Victorian decision on the granting of a Mareva injunction.

Your Honour is seen as quiet, measured and rather modest, both in your person and in your presentation as counsel. However, it would be a serious mistake to interpret this as indicating any lack of intensity.

One instructor in a significant professional negligence matter in the Supreme Court, before your Honour had taken silk, recalls the success of your Honour’s quiet intensity.

Witness statements were ordered. A report was obtained from a potential expert witness from a major accounting firm. Your Honour told the judge that the expert witness statement would be filed. However, at the directions hearing, the potential expert witness expressed ambivalence about the integrity of his report and reservations about signing a witness statement.

Your Honour met with the potential expert witness over a coffee. Quietly and calmly your Honour explained the situation of the representations you had made to the Court, in reliance on his report, as to the evidence that would be led. Quietly and calmly, your Honour discussed with the potential expert witness the terms of his firm’s retainer with your client. Your Honour had such complete command and understanding of the detail of the expert report that you were able to engage with the expert on the detail of his concerns and reservations.

The expert came to understand – and a potential catastrophe was averted.

Your Honour’s very recent case representing Steuler Industriewerke against BHP Billiton was a David and Goliath contest. Your client was an old and small German family company. The claim against it was in the order of about $50 million, arising out of the South Australian Olympic Dam project. The proceedings were complex and protracted. They had been issued in 2000. The trial was bifurcated: liability tried in 2008 – with judgment against your client in 2009; the trial on damages was in 2010, with judgment in favour of your client at the very end of 2011.

Your Honour appeared with Francis Tiernan – who took silk in 2009.

In this case, your Honour survived the driving of your junior, Alan Gray. He was driving at something like 180 kilometres an hour on an autobahn until your Honour remonstrated that you didn’t mind if he killed himself, but you and your then-instructor Jacqui Guthridge, would like to get home alive.

Having lost on liability, the managing director of your client was thoroughly depressed and felt the trial on damages to be pointless, given the need to appeal liability.

Your Honour was wonderful with the client – and yours and Francis Tiernan’s arguments were nothing short of brilliant in persuading the Court, that had held against you on liability, to hold that no loss had been proven.

Your Honour has been outstanding in your profession as counsel and as senior counsel. The qualities of industry, wisdom, patience and calm – and concern for the people you represented and with whom your Honour worked – all point to the promise of distinguished service at the Court.

On behalf of the LIV and the solicitors of this state, I wish your Honour long, satisfying and distinguished service as a judge of this Court.

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