Hilary term … Another judgment from retired ACT judge Hilary Penfold … Preposterous delay of nearly six years creates more problems for the litigants … Overburdened judgment writing style … Reproduction of vast tracks of submissions … Unclear reasoning … Lavish dinner proposed by Artemus Jones
On March 10 Penfold handed down her judgment in Supabarn Supermarkets v Cotrell (No 3) [2020] ACTSC 53 – after a mind-numbing delay of five years and eight months.
Renaissance artists painted entire churches in less time.
Scholars are now calculating whether this is the longest delay in the history of Australian judicial decision making. If it isn’t, it must be right up there with the frontrunners.
It easily beats the delays regularly chalked up by Penfold J’s colleague in dilatoriness, Justice Richard Refshauge – himself no slouch in this area of the law.
Exhibiting in spades Her Honour’s characteristic facility for reducing simplicity to complexity, the judgment runs to some 218 pages (1055 paragraphs).
It could quite easily have been less than half that length – but various intractable aspects of her style combined to ensure that the judgment reached gargantuan size. Its length cannot, of course, excuse the unconscionable delay.
The first is the endless recitation of the evidence, even when not directly relevant – at unnecessary length and excruciating detail.
Added to this is the excessive citation of authorities for both sides of each disputed point – even those of minor importance.
And third is Her Honour’s habit of reproducing vast tracts of the parties’ written submissions – even in respect of unimportant issues.
It follows that her reasoning makes up only a small portion of the judgment.
In fairness, the case did involve a degree of complexity – but the key issue was the interpretation of a clause in a commercial lease which obliged the landlord (Cotrell) to “conduct, manage and operate the Centre as a high quality retail shopping centre …”
In finding against the lessee (Supabarn Supermarkets), who alleged a breach of this clause, Penfold essentially held that the clause has no real meaning. This seems an odd conclusion, but the plaintiff’s case was not without difficulties.
Having found against the plaintiff, HH nevertheless went on to assess and analyse the plaintiff’s case on damages – finding (at considerable length) that the damages case was fundamentally flawed.
At the end of the day, the judge awarded the plaintiff nominal damages in the sum of $20 – while indicating that the plaintiff should pay the defendant’s costs, subject to further submissions.
It is not clear whether Penfold’s reasoning is correct or not, yet that issue may well be completely irrelevant because of the five year eight month delay in handing down judgment.
Supabarn will no doubt appeal, and one ground of appeal will be the excessive delay in delivering the reasons. If the appeal succeeds on that ground then Penfold’s J’s reasoning may not matter.
This could be a complex issue, given that most delay appeals involve brief judgments rather lengthy ones, as is the case here. If the appeal is successful it could result in an order for a retrial.
This case commenced in 2009 and the trial ran for 18 sitting days. The legal costs incurred to date for each party must exceed six figures.
A retrial, of course, would mean the case continuing for years to come. No litigant should ever have to undergo such a nightmare.
Her honour retired from the court in March 2018 and still has one more judgment to hand down.
The hearing in that case concluded in December 2018, so it will probably be some time before a judgment sees the light of day.
When it does – and when that case and the Supabarn case are finally resolved – the ACT government, the ACT Law Society and the ACT Bar Association should organise a lavish dinner to mark the end of one of the most disgraceful interludes in ACT judicial history.
Ticket prices should be extremely hefty – with all proceeds going to the suffering litigants and lawyers.
And those politicians who appointed Justices Penfold and Refshauge – because they are the real culprits after all – should sit at the top table, and be presented with medals struck in their honour.
A dunce’s cap should appear on one side of each medal, and on the other the inscription ” justice delayed is justice denied “.
Superbarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No 3)
See previous reports on Penfold’s judgment delivery achievements and ACT Supreme Court delays …
Judgment agony at the ACT Supremes