Human rights … Sex discrimination … Full Feds find a fresh instance of poor quality workmanship at the Circus Court … Judge brings administration of justice into disrepute … Six year delay leads to the wrong reasons … Start again according to law … Ginger Snatch reports
Jarrett took more than six years to deliver a judgment in a discrimination and sexual harassment case, a delay that Geoffrey Flick, Alan Robertson and Darryl Rangiah found to be “startling” and which resulted in the Jarrett’s reasons being “inadequate” and unsafe.
The full court added:
“… the delay on the part of the primary judge in delivering his judgment has – regrettably – brought the administration of justice into disrepute.”
Jarrett dismissed a case brought by Lilo Hana Von Schoeler against a timber subsidiary of Boral and one of its employees Timothy Hey. He did make a finding of sexual harassment against another employee, John Urquhart, who grabbed Ms Von Schoeler on the bottom.
The appeal judges found that Boral and Hey were indeed liable for the alleged sex discrimination and harassment.
The whole affair was sent back to the Circus Court to be determined by another judge – hopefully not Judge Sal Vasta.
In the process the full court noted that the hearing before Jarrett was conducted on October 8 and 9, 2012. Final submissions were provided on October 26, 2012 and the judgment was delivered on November 23, 2018.
The judge did not explain the reasons for the delay. The full court noted is not usual for judgments to be overturned because of delay, but here was an exceptional case.
It was found that in dealing with important aspects of the evidence Jarrett’s reasoning was inadequate, confused and uninformative. There were instance where he didn’t explain why he preferred the evidence of one witness over another – unacceptable in a case where there’s been significant delay.
The delay “created a substantial risk that the primary judge would, under pressure, gravitate to the conclusion that was easiest to make and express”.
Another instance of taking the easiest path was that Jarrett completely overlooked the evidence of some witnesses.
“The poor quality of the analysis probably reflects the pressure that his honour was under to deliver the judgment.”
Further, he failed the deal with the allegation that Mr Hey made a false complaint against the applicant, which resulted in the company issuing her with a written warning.
Again, “… that probably reflects the pressure that his honour was under to deliver the judgment after having been reserved for over six years.”
The judge’s lack of clarity was also a reflection of the huge delay.
“The reasons demonstrate that the primary judge was unable to satisfactorily determine the case six years after hearing the evidence. It must be concluded that the judgment is unsafe.”
For bonus points Jarrett also misspelled the name of the Boral subsidiary in his judgment.
The appeal judges delicately avoided mentioning Jarrett by name in their comprehensive demolition of his workmanship. There’s no hiding from the internet, where the primary judgment and its author still find a home.
Last year the Full Feds ordered the retrial of a 2015 case after Jarrett took three-and-a-half years to hand down a judgment involving an unfair dismissal claim against the Red Cross – where he also failed to consider all the evidence.
Darryl Rangiah was also involved in that appeal.
The Financial Review reported that in 2018 Jarrett had more than 40 judgments outstanding, most of which were over the three-month delivery benchmark.
This has led to multiple appeals based on the delays affecting his reasons.
Two Wigs Willy Alstergren said that Jarrett was an “extraordinarily hard-working judicial officer”. He offered this explanation for the judge’s delays:
“In an effort to hear and manage as many cases as possible in order to assist litigants, his honour faced a difficulty of accumulating a number of older outstanding reserved judgments.”
Von Schoeler v Allen Taylor and Company Ltd trading as Boral Timber (No 2)