Two thousand and twenty three produced more than its fair share of distress for lawyers and the law. It gives us no pleasure to assemble the most regrettable moments from a year that is now disappearing down the gurgler.A flood of unhappy memories … A Voiceless Nation … Corruption triage … Judges in the slow lane … Defamatorium … Saloon refurbishment … Tribunal upgrade … Stinging Nettle v The Judd … Quotes chiseled in stone … Theodora reports
Two thousand and twenty three produced more than its fair share of distress for lawyers and the law. It gives us no pleasure to assemble the most regrettable moments from a year that is now disappearing down the gurgler.
The loss of the Voice campaign to negativity and tawdry arguments must stand as one of the year’s most depressing events.
Louise Clegg, Gassy (Herbicide) Taylor’s wife, was described in The Australian as a “prominent barrister”. She demanded that the NSW Bar Association reprimand Bret Walker SC who told a gathering that some of the NO arguments were “racist”.
It was reported Clegg was considering her legal options about this “appalling slur” yet, sadly, nothing eventuated.
See: A speechless Voice
Vic’s Bar ‘n’ Grill asked its members to decide whether or not to support the Voice. A majority agreed that the constitutional amendment was sound.
That did not include the porcine Stuart Wood “AM KC” who claimed that barristers who support the YES case are doing so for the money.
An anonymous Victorian silk sunk his velvet slipper into the backside of the NSW Bar ‘n’ Grill, which officially was in the YES camp:
“The New South Wales bar is much more desperate to be part of the zeitgeist that Melbourne … The mullahs (in NSW) have really taken over, it’s much more fundamentalist stuff there even than Victoria, which is kind of weird.
“I just don’t understand how the New South Wales Bar Association got away with what they got away with.”
See: We have Wood
The ABA was also onboard with the proposed constitutional amendment and the Law Council declared the proposal “legally sound“.
Apparently, a majority of Australians in a majority of states thought that Indigenous Australians have a fabulous time and to give them anything more would “divide the nation”.
Former PM, the Mad Monk, declared:
“I’m getting a little bit tired of seeing the flag of some of us flown equally with the flag of all of us. And I just think that the longer this goes on, the more divisive and the more difficult and the more dangerous that it’s getting now.” [sic]
In celebration of the success of the NO campaign there was another priceless remark from Senator Price:
“We are one of, if not the greatest nation on earth.”
A review of the year’s highlight would be eerily strange without mention of Judge Salvatore Vasta.
His reasons in the famous “Pumpkin Eater” case were overturned by Justice Wendy Abrahams.
In a workplace dispute involving the CFMMEU, Sal had unravelled the secret meaning of the phrase “Pete, Pete, Pumpkin Eater”, explaining that it had a homophobic connotation – information that was news to counsel. HH explained:
“I understand that, you know, I may be a bit more worldly than you are, and I may understand how these things affect sections of the community more than you are, but that’s the way it is.
“That’s why, you know, I’m asked to be a judge because (a) there are things that I have in my experience that allows me to look at these things and see what it is, even if it is something that escapes, you know, both counsel, but anyway, all right.”
See: Vasta World
However, the far greater calamity was Wigney J’s decision in Stradford v Vasta – a 852 paragraph finding that judges like Sal have no immunity when they act without jurisdiction.
Salvatore was sued by a litigant for false imprisonment and collateral abuse of process. The thought that FCFC judges might face a string of similar cases for incompetence forced the government to rush legislation into parliament to shore up the immunity.
See: The Stradford story
A full bench of the Federales eventually stayed Mr Stradford’s imprisonment, finding:
“The processes employed by the primary judge were so devoid of procedural fairness … and the reasons for the judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the order for imprisonment to stand would be an affront to justice.”
See: Vasta sued for misconduct – trial adjourned
I’s a relief all round that even incompetent judges can now carry on regardless.
Since the commission’s commencement, 1,790 referrals have been rejected at the “triage stage”, another 107 are pending triage, 53 are in “active triage” and 167 are “currently under assessment”.
Just as NACC’s doors were swinging open, Ruth McColl in NSW was handing down her ICAC report on Gladys Berejiklian, finding that the former premier engaged in “serious” corrupt conduct by arranging funds for the electorate of Dodgy Daryl Maguire MP, who happened to be in her “love circle”.
McColl took 417 days to hatch her findings. A draft version was actually received in February 2023, but it took another five months to “review and edit” the work before it was fit for consumption.
Even then there are doubts. Glad is seeking a judicial review of ICAC’s report, with one of her grounds being that McColl was not validly appointed a commissioner at the time she got around to writing her magnum opus.
See: Serious news
McColl was not the only one dragging the chain.
Throughout the year Justinian had the unhappy duty to report numerous judges limping along in the slow lane.
There was the unsightliness mess of finding a bundle of unfinished judgments in the bottom draw of Justice Kathleen Farrell’s desk.
Ian Jackman had to finish her work in the Smart Education case because more than two and a half years after she heard the matter, she had not completed the judgment before she was due to drop off the judicial twig.
Jackman’s words are still ringing in many ears:
“… the problem seems to be one of unwillingness to discharge the judicial function of giving judgment in the proceedings …
While Farrell J is not one to rush to judgment, the evidence does not indicate any acceptable reason why her Honour could not have given judgment by 1 August 2023, even if her Honour did not begin the task until 30 June 2023.”
Rares J was also recruited to polish off Farrell’s incomplete immigration appeals which had languished unfinished – in one case for nearly three years, and in the other for over two-and-a-half years.
See: Ringside reports
A two-and-a-half-year delay was also Justice Jenni Hill’s record in the WA Supremes. We’ve lovingly listed her award-winning tally in this instalment by Theodora.
She was closely followed in the tortoise race by WA Supremes sister judge, Larissa Strk.
HH Caroline Kirton from the FCFC had a bundle of cases that languished for over two years and Judge Julia Baird was not far behind.
See: Time is such an abstract concept
In other news from the West, Groper reported that noses were out of joint over the appointment of Natalie Whitby to the WA Supremes.
One irked Swansider told our reporter:
“One is entitled to ask why the AG keeps appointing such lightweights (with connections to the AG and/or the chief justice and/or his wife) to the court, rather than experienced silks who would be able to get through the court’s workload.”
See: Laments from across the Nullarbor
Attorney General John Quigley cleared things up by telling Groper:
“I have never appointed anyone who was opposed by the head of jurisdiction.”
See: For the record
There was strife in Canberra following the trial mishap of accused rapist Bruce Lehrmann.
The investigation into the trial by former Queensland appeal judge Walter (The Cossack) Sofronoff ended in tears, with his report being leaked to selected hacks, the ACT government having conniptions, and the ACT DPP Shane Drumgold departing his post.
See: Another crash landing by Walter
Drumgold is now seeking judicial review of Walt’s work. In addition, a whole pile of letters were released by the Cossack and his lawyers at Gilshenan & Luton, detailing accusations and counter-claims.
Sofronoff said the report belongs to him. ACT chief minister Andrew Barr says it doesn’t. It belongs to the government.
See: Cossack’s charge
Apart from Lehrmann consuming scads of court time with his defamation case against Network Ten and celebrity presenter Lisa Wilkinson, the libel scene was transfixed by Ben Roberts-Smith’s war crimes case against the Fairfax fishwraps.
Now we have Alan (The Parrot) Jones threatening some of the same papers following allegations that he sexually harassed any number of lads.
Why do people wants to air more of their dirty linen by bringing these cases? At least Dicey Hayden has the good sense not to sue after he was held out to dry in the prints.
The High Court of Sydney got a shot in the arm with the elevation of Stephen Gageler as chief justice and Robert Beech-Jones’ appointment as a judge. This followed AG Dreyfus last year sending Jayne Jagot to the Molonglo bench.
See: Refreshments at the Saloon
Vic’s Bar is reported to be incandescent – although Debra Mortimer from Yarraside was safely installed as chief justice of the Federales.
Dreyfus has also been reforming the administrative tribunal which fell in decay due to an overabundance of Liberal Party stalactites adhering to their grace-and-favour positions at the AAT.
The former opposition frontbench spokesman on law and order, Julian Leeser, was incensed by the idea of merit-based appointments:
“The Attorney (Mark Dreyfus) is like Stalin’s henchman, Lavrenty Beria, who says, ‘You find me the man, I’ll find you the crime’. He doesn’t care whether the people he is targeting are qualified or not. What he really wants is a supine tribunal that will rubber stamp the decisions of the Labor Party.”
Six months after Fiona Meagher suddenly threw in the towel as president of the AAT, Michael Hawkins the tribunal’s registrar told senate estimates of the touching moment he had with his departing boss:
“I expressed my great disappointment, because we had plans. And I may have shed a tear with her. It was sad.”
Vic’s Bar had it’s own drama with a standoff between Special Investigator Geoffrey Nettle and DPP Kerri Judd over whether to prosecute police officers who had lied on oath and attempted to pervert the course of justice arising from the Lawyer X case.
Costs associated with a royal commission, the Office of Special Investigator and associated legal stoushes approached $125 million over four years, yet there was nothing to show for it because Judd refused to prosecute.
Senior worthies were upset that there were no heads on pikes. Stephen Charles was “appalled” and former chief prosecutor Gavin Silbert said:
“[Nicola] Gobbo offered to plead guilty and give evidence now. What more do you need than that?”
See: Speech day
There are remarks from other worldly figures that must not pass unnoticed.
When Rupert Murdoch announced that he was becoming a “chairman emeritus” of Fox and News Corp, loyal SkY News rapporteur Graham Richardson recalled a meal with the media tzar:
“Just to sit there and watch him eat a lamb chop was an honour …”
And as inflation and the Reserve Bank’s interest rate rises were gathering pace, on hand with his perspicacity was National Party leader David Littleproud:
“It’s time for Dr Lowe to put his finger out the window and smell the breeze.”
Happy Christmas.