Judgments along the Molonglo move at a trickle … Retired ACT Supreme Court judge still sitting on six reserved judgments … Some decisions reserved four-five years ago … A two-year-old case gets a rapid fire burst of decision-making … The backlog should be cleared in a couple more years … Artemus Jones reports
Justice Refshauge, who retired in May 2017, continued after that date to hand down judgments at a leisurely pace in cases heard years before – thanks to section 60A of the ACT Supreme Court Act, which licences and encourages ongoing post-retirement judicial dilatoriness.
Former justice Refshauge’s backlog thankfully is now cleared.
Unfortunately, the same cannot be said for Justice Penfold – who retired in March last year after a decade of sterling service on the bench.
In fact, her Honour’s track record of delay in handing down judgments is beginning to make Refshauge’s career look like a whirlwind of judicial promptitude.
Despite having been retired for over 12 months, Penfold is still sitting on six outstanding judgments. Some of these cases were heard years ago – one dates back to 2014 and two to 2015.
Beleaguered litigants in the ACT should not despair – Hilary has recently engaged in an uncharacteristic burst of judgment writing.
On February 15, she handed down her decision in Atherden v Caldipp (2019) ACTSC 29 – a run of the mill personal injury case in which liability had been admitted. It had been heard in January 2017, some two years previously.
At this rate, Penfold backlog could well be cleared within a couple of years.
In the meantime, litigants and lawyers waiting for decisions can draw comfort from the following credo which appears on the ACT Supreme Court website:
“The Court has a goal of delivering each judgment within three months of the date on which the judgment was reserved.”
If that is not enough to placate them, they may find additional solace in the following invitation, also appearing on the court website:
“A litigant … who wishes to complain about the behaviour or physical or mental capacity of a current judge should make a written complaint to the Judicial Council or the Attorney-General …”
Litigants could also pass the time by reading the uniformly sycophantic comments made about Penfold by the ACT’s political and legal heavyweights when she retired.
The then attorney general praised the judge for her “thoughtful judgments” and the then ACT Law Society president described her appointment as “an act of great perspicacity and innovation”.
A similar outpouring of unmitigated praise occurred when Refshauge J retired.
It is not clear what criteria governed the appointment of judges in the ACT in the past, but hopefully these days the ability to write judgments in a timely fashion is accorded more importance than previously.
Litigants and lawyers are entitled to nothing less.
After all, litigating in the ACT Supreme Court is very expensive – as a cursory perusal of the current schedule of fees discloses.
Instituting proceedings costs a natural person a hefty $1735. Daily hearing fees – depending on the length of trial – range from $920 to $4014 per day. And lodging an appeal can set you back a whopping $2553. Fees for corporations are substantially higher.
Litigants who are compelled to part with this sort of money in order to enforce their legal rights are entitled to timely judgments, at the very least.
Surely the time has come to put an end to the pathetic farce of judicial procrastination that has blighted the ACT Supreme Court for more than 10 years.
Section 60A should be repealed immediately. Even if it is legally valid – and that is doubtful – it is fundamentally flawed as a matter of principle and its practical consequences are unacceptable.
Judges should hand down all outstanding judgments before they retire, and no judge in future should be permitted to act in the manner of Refshauge and Penfold.
Further, “Transitional Justice” Penfold should be told to step on it and get wiggling with the writing.
But don’t hold your breath waiting for this to happen.
The political and legal power elites in the ACT have permitted this debacle to continue virtually unchecked for years and, with a few notable exceptions, the media has simply ignored it.
In NSW, judicial procrastination is dealt with very differently.
Just this week the conduct division of the NSW Judicial Commission had a report tabled in parliament into the conduct of Judge Peter Maiden of the District Court.
The commission noted 15 cases in which Judge Maiden took between one and three years to hand down judgments, and concluded that it had no confidence that he was able to deliver judgments “in a timely fashion” – which it described as “a fundamental aspect of the duties of a judge”.
The commission found that Judge Maiden’s “misbehaviour … could reasonably be considered to be such as to adversely impact on the future reputation and court, if he were to continue as a judge of the court”.
The NSW parliament will now consider whether Judge Maiden should be removed from office.
Along the slow moving Molonglo, however, decisive action like this is virtually unimaginable.