Practitioners in the field of workers' compensation might also recall his views on the complexity of that field and the competence of its practitioners. At that time, the Court of Appeal had to deal with many appeals from poor decisions from the Compensation Court. He told a conference of workers' compensation practitioners in Newcastle that he did not accept the common view that the field was not complex and that it did not require forensic skill. He believed that skill was required but only in the sense that it also required skill to successfully shoot clay pigeons at a country fair.
He was clearly not a diplomat. He was, however, an outstanding lawyer.
I remember when I was a law clerk in the late 1980's reading many of his written advices from the time when he was a young barrister in the late 1940's. The law firm for which I worked started in 1946 when the two original partners came back from World War Two. The firm had kept many of the original files. One of the partners had gone to Sydney University Law School with him in the early 1930's and briefed him often. He generously overlooked his earlier disappointment when Frank Hutley was the last student on the First Class Honours list for that year thereby relegating him to Second Class Honours. I learnt much law in this way in the tunnels under Wynyard railway station where the old files were archived. COMMENT: EMAIL: URL: Perhaps Justinian can call him "Miami" Beach J
It's like the scene in Bohemian Rhapsody where Freddie Mercury says to his lawyer, Jim Beach:
"From now on, I dub thou `Miami'"
ASIC v Harold Mitchell … Rollicking language from High Court prospect … Something old at the new ACT drug court … Roadkill at Tasmanian Legal Aid … Women lawyers gazumped for High Court appeal … Tears for Balmain woman … Theodora is out and about with her notebook
Big Harold was charged with breaches of ss.182(1) and (183(1) of the Corporations Act – using his position and using inside information for Seven’s advantage.
The president of Tennis Australia, Stephen Healy, a Melbourne solicitor, was also charged with failing to discharge his duty with reasonable care and diligence – s.180(1).
As we know, Justice Jonathan Beach of the Melbourne Feds threw out the case against Healy and slapped Mitchell with a few parking tickets. It’s a judgment with a fair share of curiosities, particularly as he judge didn’t admit some interesting material from ASIC – the reason for which cannot be found in HH’s 436 pages.
The judge also decided that McWilliam should give evidence, which gave Big Harold a significant forensic advantage.
There was lots of contention about how much the board of Tennis Australia was or wasn’t kept in the dark and whether a better deal for the racquetteers could have been procured if the broadcast rights had been put to open tender.
There was evidence, for instance, that Network Ten could have offered nearly $10 million a year more than Seven.
All of this is of heightened fascination because the Beach Boy is the hot pea to replace Geoffrey (Stinging) Nettle on what Victorians like to think is “their” seat on the High Court.
The machinery of Liberal backroom operators is in motion and the settled view of those tapping their left nostril is that Beach has the baton.
The fact that uber-conservative princess Janet Albrechtsen is scribbling peons of praise for Beach’s judgment in the Mitchell case is a strong pointer that, as Hilaire Belloc said of Lord Lundy:
“The stocks were sold, the press was squared, the middle class was quite prepared. But as it is … My language fails. Go and govern New South Wales.”
Not content with burnishing his credentials as the scourge of the corporate regulator Beach also carved out some territory as a literary stylist.
“TA [Tennis Australia] stages a number of tennis tournaments in Australia, notably the Australian Open (AO) in the searing heat and brilliant sunshine of January each year.”
“I will come back later and deal with ASIC’s penny dreadful narrative …”
“On the same day Mr Wood met with Mr Martin at a middle of the road restaurant in Toorak for breakfast.”
“This contention took various psychedelic rhetorical forms in the course of ASIC’s opening.”
“This email was little more than commercial fairy floss.”
“Clearly Dr Young was stoking the fires of her cover up and conspiracy theories.”
“I would reject ASIC’s belated use of its purported poly-filler.”
“Did I impose a Continental solution? Or is there nothing to see here? I will leave those meta-questions for others to ruminate on.”
“The cross-examination went nowhere. It was a napkin short of a knife.”
“Now at heel of the hunt, Mr Pearce SC in cross-examination of Mr Healy asked a series of questions that were directed to an evolution of ASIC’s case theory.”
Barbara Cartland, move over.
Not since the late Frank (“Cab”) Calloway dazzled Yarrasiders from the bench of the Vic Appeals have the covid-stricken southerners enjoyed such a judicial literary feast.
In Canberra jaws dropped and conversations froze as citizens heard the news that retired ACT judge Richard Refshauge was back at the Supreme Court.
Refshauge has been the subject of many a story in Justinian about torpor and procrastination, yet there he is as an acting Supremo to run the ACT’s Drug and Alcohol Court for an entire year.
ACT AG and celebrity chef, Gordon Ramsay told the public:
“Throughout his career Justice Refshauge has demonstrated a deep commitment to establishing the ACT as a leading human rights jurisdiction. He brings to the position a wealth of experience in a wide range of legal capacities, and I have full confidence that he will uphold the restorative principles of the Drug and Alcohol Court.”
The delays were sufficiently intolerable for the local bar ‘n’ grill in 2012 to complain about the judge to the attorney general.
Eight months after he retired he was still writing reserved decisions. In Lewis v ACT it took the judge two years to write his reasons about a claim for false imprisonment and breach of the ACT Human Rights Act.
He found in favour of Lewis and awarded him damages $1 and for each party to pay their own costs, unless written submissions to the contrary were filed in seven days. This took 564 paragraphs and 84 pages replete with over 200 authorities.
As Artemus Jones observed at the time, two years to write the judgment and seven days for the parties to file submissions on costs.
Final orders were handed down the following month, but it emerged that Lewis’ written submissions in reply had disappeared in the court’s registry and had not been taken into account by the judge.
Refshauge then recalled his costs order but advised the parties that he was to undergo surgery and would “not be in a position to address the matter for some time”.
Lewis then filed an application seeking to prohibit Refshauge to have nothing further to do with the case, yet even so the judge kept making confusing orders, as Artemus Jones painfully explained here.
This month (August 2020) the High & Mighty threw out Lewis’ appeal on damages.
Now HH is on the Drug Court, and it’s just as well it’s not a busy jurisdiction, with 25 people referred to the court since it’s inception in December last year and with eight offenders receiving a D&A treatment order.
The previous head of the Drug Court was acting justice Loraine Walker, who has now gone back to her job of chief magistrate of the territory.
Here’s a small compilation of Justinian’s reports on Roughshagger and associated ACT delays:
July 14, 2011
Judgment time for Molonglo Supremes
August 3, 2011
Silence is leaden
September 8, 2011
Capital capers
February 28, 2012
Hits of the blitz
December 18, 2012
Slow boat up the Molonglo
May 22, 2017
Torpid languor
March 20, 2018
Roughshagger’s last stand
August 30, 2018
Post-retirement judicial snafu
January 21, 2020
The torpor twins
There’s been grief throughout Tasmania at a decision by well-padded bureaucrats to redesign the logo for the island state’s legal aid commission and in the process to dump the well-recognised image of a possum holding the scales of justice.
Legal Aid’s chairman, Patrick Lunn, declared the possum was “reflective of a different era”. He’s hoping to bring change and a “fresh, bold, new brand to the organisation”.
The possum was introduced by Pierre Slicer when he was director of LACT, before he became Mr Justice Slicer of the Supremes and well before he became Lautalatoa Slicer of Samoa.
The Slice sent a letter to the local Murdoch paper in Hobart reminding its reader of the significance of the logo:
“The concept was for a representation of an ordinary fauna who resided both in city and country rather than a more high profile being.”
Dame Edna Everage had also popularised the creature, using “possum” as a term of endearment.
The Slice said he kept a spin-off from the original design crafted by Peter Gouldthorpe – a blindfolded possum smoking a cigarette viewed through the sights of a rifle.
The possum has been turned into road kill as the Legal Aid Commission gets a new, you-beaut corporate look and feel under the baton of its director Vincenzo Caltabiano, who had been recruited from Victoria Legal Aid.
Meanwhile, private briefs, proctors and notaries are livid that Tasmania’s legal aid management is keeping the juiciest plums for its own in-house team.
This is specially so with family law practitioners who have in circulation an anonymous survey seeking details about levels of dissatisfaction about the LACT.
Others have described some of the in-house incumbents as being covered in “blue mould” as they hang on for redundancies. [Surely this is unkind? – Ed.]
Former Supremo Peter Evans did a report years ago which indicated that more legal aid funds should be directed to the half-starving briefs in private practice.
Yet, there is news to hand of a case where two female Tasmanian lawyers, Kim Baumeler and Philippa Willshire, successfully sought special leave from the High Court for Chauncy Aaron Bell, convicted of supplying Ice to an underaged person and “sexual intercourse with a young person under the age of 17 years”.
The Court of Criminal Appeal upheld the trial judge’s decision that a defence of honest and reasonable mistake as to age was not available in relation to the supply charge. That is the appeal point now before the High Court.
Having successfully done all the work and got special leave, the LACT told Baumeler and Willshire that aid would be granted, but that a male silk from Queensland was nominated to take over the appeal.
The ABC had the story from Hobart …
In what must be one of the great backyarder defamation cases of all time, Justice Stephen Rothman of the NSW Supremes last month awarded damages of $300,000 plus interest and costs to be paid to builder Anthony Cosco by his neighbour, lawyer Vanessa Hutley.
Cosco sued Hutley over her appearance on an episode of Channel Nine’s A Current Affair where she vented about the awful man next door and the construction of his new home.
Rothman found that Hutley had continually threatened to use her standing as a lawyer to put Cosco “through the ringer”, render him bankrupt and employ criminal and other proceedings against him.
“We’re going to roast you, we’re lawyers … I’m a lawyer. I’m going to cost you. I’m going to take you to court if you don’t do what I say.”
A builder working on the site, Maurice Cornielje, gave evidence that Ms Hutley abused the workers. He told the court that the defendant said:
“… we don’t belong here, that we’re foreigners because – maybe we’re all a bit tan, but I was born in Balmain, lived in Balmain my whole life. I’ve – you know – I’ve never been anywhere else. I went overseas once, and then back to Balmain because that’s where most of our work is. And that’s where the people we know – yeah. It was just – I just couldn’t believe it. I was – I was shocked. She just kept going, telling us how shit we are as humans. And – you know – I told her to go inside or anything but yeah, we just – we were just shocked, I was dumbfounded.”
Rothman said that Ms Hutley had displayed “an abysmal arrogance and sense of privilege” and that the proceedings were a “salutary lesson in how not conduct relations with neighbours”.
Vanessa is the daughter of the late Justice Frank Hutley and brother of former bar bigwig Noel Hutley SC.
The Hutleys are no stranger to defamation proceedings. Frank threatened to sue Justinian over something unimportant. He was shouting red-faced threats at the proprietor from the other side of a fishpond at an otherwise convivial cocktail party.
Apparently the complaint was Ysaiah’s claim that Frank was anti-women. It was settled.
Vanessa’s remark about “foreigners” was clearly inspired by Frank Hutley who famously complained that the influx of people into the legal profession from working class and migrant backgrounds would lead to a decline in ethical standards.