Retirement of Justice Steven Rares

Gregory Nell SC

On 14 September 2023, a ceremonial sitting of the Full Court of the Federal Court of Australia was held in Sydney both to farewell the Honourable Justice Steven Rares upon his retirement from the court and to recognise publicly his Honour’s ‘tremendous service’ to the court (as the Chief Justice described it) and contribution to the development of Australian law for almost 18 years.

Prior to his appointment to the Federal Court, his Honour had since 1980 practised extensively at the Australian Bar in many areas of law, including defamation, media, trade practices, commercial and corporations, administrative, aviation, and admiralty and maritime law. As Chief Justice Mortimer noted of his Honour’s time at the Bar:

… this celebration of your particular perspective on and contribution to the law would be incomplete without reference to the Magna Carta. Your success in The Queen v McConnell in the New South Wales District Court in 1985 as a junior barrister where you invoked the Magna Carta in arguments that persuaded the court to acquit your client and discharge him on the basis of delay in bringing the matter to trial set the scene for your regular return to that fundamental document throughout your career as a Judge.

The trial judge, Moore DCJ, said of his Honour’s participation in that case, ‘I am indebted to him for a well-prepared and careful argument’. That observation could equally have been applied to his Honour’s practice at the Bar generally. As Mr Blunn on behalf of the Commonwealth Attorney-General observed of his Honour’s time at the Bar, he was known by his colleagues ‘to be extremely hard-working, generous and a considerate colleague who was a formidable advocate’, traits that his Honour also exhibited on the Bench. His Honour was also well known for his remarkable ‘memory of the volumes of law reports … knowing the exact citation to the page of an authority you reach for … in conference in your chambers’. Of this, the President of the NSW Bar Association, Dr Ruth Higgins SC, observed:

It has been rumoured that no one in Australia, save perhaps for the Chief Financial Officer of Thomson Reuters, is more excited than your Honour upon the publication of a new volume of the CLRs.

In addition to his busy practice, between 1995 and 2005, his Honour also served on various committees and working groups of the NSW Bar Association and was a member of the Judicial Commission of New South Wales.

In commenting on the 18 years during which his Honour served on the Federal Court, Chief Justice Mortimer referred to a number of his Honour’s important judgments, including in Ashby v the Commonwealth, in the ‘hard-fought Native Title claim by the Yindjibarndi People in the Pilbara in Western Australia … which developed the law about when Native Title claimants might be found to have exclusive possession of land’ and his misfeasance in public office decision in Brett Cattle Co. Pty Ltd v the Minister for Agriculture. Of his Honour’s time on the court, the Chief Justice said:

… since your appointment in February 2006 you have worked across the jurisdictions of this court with energy and dedication. You have also served on the ACT Supreme Court and on the Supreme Court of Norfolk Island. You have held many positions of responsibility within the court as a coordinating Judge in various practice areas and on many of the court’s committees. You are always willing to help if asked, and we are all grateful for your willingness to contribute to the work of the court. Externally, you have been a prolific speaker, writer and contributor on behalf of the court. You served on many national bodies such as the Consultative Council of Australian Law Reporting and you were the president of the Australasian Institute of Judicial Administration from 2019 to 2021.

On behalf of the barristers of New South Wales, Dr Higgins SC thanked Justice Rares for his ‘distinguished judicial life’ and ‘long and dedicated service to the administration of justice’. In doing so, Dr Higgins noted his Honour’s ‘unaffected joy for the law’ while on the Bench and identified ‘certain salient indicia’ of this, including his Honour’s ‘prodigious capacity to issue ex tempore judgments’ and ‘great care and consideration for self-represented litigants’. These indicia also included (as those who frequently appeared before his Honour can readily attest) both ‘the rigours of a Rares case management conference

’ and … the subzero temperatures in your Honour’s courtroom 19E. This perhaps was directed at keeping everyone at court alert. However, it is quite possible that your Honour leaves the Bench today looking quite as well as you do because you’ve been partially cryogenically frozen for the past 17 years.

Mention was also made by others of some lesser-known aspects of his Honour’s non-judicial life, including ‘being a marvellous chef and baker, with friends being treated to dishes including goose and great soup’, his Honour’s ‘talent as a chess player, with friends and family still waiting to win a game’ and his ‘ability to navigate freshly powdered ski fields, mastering black runs as a form of relaxation’.

Importantly, Justice Rares’ work and continued recognition as a leading specialist in the area of admiralty and maritime law was also acknowledged by those who spoke (including the Chief Justice) during the ceremonial sitting.

Following his appointment to the court, Justice Rares found his way into what is now known as the Admiralty and Maritime National Practice Area (‘NPA’), where his Honour heard cases in the exercise of the Federal Court’s admiralty and maritime jurisdiction. His Honour was subsequently appointed the New South Wales Registry Convening Judge and later National Coordinating Judge for that NPA. For a number of years, his Honour also chaired the annual meetings of the Federal Court’s Admiralty Users Group in Sydney. As Mr Blunn reported:

I am told that, for approximately 15 years, nearly every Admiralty and Maritime matter filed in New South Wales has been docketed to your Honour, with your Honour’s Friday case management list serving as a meeting place for shipping lawyers of New South Wales and Sydney.

From 2011, Justice Rares was also the presiding member of the Admiralty Rules Committee, a statutory body established by the Admiralty Act 1988 (Cth) to advise the Commonwealth Attorney-General about rules relevant to the practice and procedure followed by all Australian courts exercising jurisdiction under that Act.

During his time on the court, Justice Rares delivered 85 first instance judgments in matters of admiralty and maritime law and participated in 28 judgments of the Full Court in appeals in that area. These include many of the leading judgments in this area of law.

While his Honour referred to ‘the peripatetic nature of ships’, the same might also be said of his extra-curial contribution to the exposition and development of maritime law, both in Australia and beyond.

His Honour was an active member of the Maritime Law Association of Australia and New Zealand, having presented papers at its annual conferences in Queenstown in 2009 and Melbourne in 2017 as well as at local New South Wales branch events. In 2013, his Honour delivered the Association’s annual keynote address – the ‘Dethridge Address’ – entitled ‘The far from Halcyon Isle: maritime liens, renvoi and conflicts of law’, a topic to which his Honour later returned as one of five members of the Full Court hearing the appeal in The Ship ‘Sam Hawk’ v Reiter Petroleum Inc.

Justice Rares has also been a strong contributor to the work of the Comité Maritime International (‘CMI’). This is as an Australian representative on its International Working Group on Offshore Activities since its creation in 2012 and having spoken on that topic in Mexico in 2019 and Istanbul in 2015. In June 2023, his Honour was afforded the honour of being elected a titulary member of CMI.

Other topics in the maritime sphere that his Honour has spoken on and written about frequently and widely, both overseas and in Australia, include the law relating to and practical aspects of ship arrests, cross-border insolvency and its interaction with the maritime law of priorities, and maritime arbitration. In that latter regard, his Honour has been a strong supporter of the Australian Maritime and Transport Arbitration Commission (AMTAC) and in 2018 delivered that year’s AMTAC Annual Address on ‘The rule of law and international trade’.

Of the 55 papers that Justice Rares is listed on the Federal Court website as having presented and/or published during his time on the court, some 20 papers – or a little over one-third – are on admiralty and maritime law.

Although in an address given in February 2023 entitled ‘17 years in the judicial sea: A voyage through my experience as an admiralty and maritime judge’, his Honour referred to his then impending retirement as sailing ‘into the constitutional scrapyard’, there would appear to be still some life left in that ship, with the Hon Steven Rares KC (as his Honour is now known) having returned to his former chambers in Phillip Street Sydney as an accredited mediator and arbitrator. BN

Gregory Nell SC

New Chambers