UPDATE … Blunders by inexperienced Family Court judge … Need for dispatch to reeducation camp … Friends in high places … Precedent ignored … Edward Longshanks no help … Lengthy judgments with irrelevant citations … “Odd” … George Pell referenced … “Perplexing” … Ginger Snatch reports
Once again Justice Josh Wilson of the Family Court gets a good bollicking from the appeal bench.
Wilson was appointed first to the Circus Court in November 2015 (Brandis) and then the Family Court in March 2019 (Porter), yet he had only minimal family law experience.
One of his credentials, flagged at the time, was his closeness to Two Wigs Willy Alstergren, “a dear friend with whom I have shared many bar adventures over the years”.
Wilson took his seat on the Family Court bench just as Justice Peter Murphy delivered his incendiary farewell speech:
“Judges who are finger puppets for politicians and governments – of any persuasion – do more than sacrifice their self-respect … They sow the seeds of public cynicism that – eventually and inevitably – undermined the rule of law.”
Anyway, Wilson’s lack of experience in the jurisdiction has led to some caustic overturning from above.
In May, Steven Strickland, Judith Ryan and Michael Kent allowed an appeal from Wilson’s order for indemnity costs against a husband who had been unsuccessful in asserting that a pre-nuptial agreement should govern the split of assets.
The general rule in the court is that each party to proceedings bear their own costs, unless there are special circumstances.
In Kohan’s case the full court decided that section 117 of the Family Law Act included a power for the court to order costs on an indemnity basis, in exceptional circumstances.
Wilson said in his reasons that “a school of thought exists” in cases like Kohan that “an order for indemnity costs is exceptional”, but that statement is of “highly dubious utility”.
The full court then had to provide a reminder about the binding authority of precedent, adding:
“As this case demonstrates, the refusal to follow precedent almost inevitably leads to an appeal and perhaps a rehearing with the attendant systemic costs and even more stress and legal costs for litigants.”
In the face of absolutely nothing that enabled an order for costs, including indemnity costs, Wilson went on an adventure with the Statute of Glouscester, 1278 6 Edw 1, and traced the history of equity’s treatment of costs from 1742.
The appeal judges said this was “odd”.
“None of this was raised for consideration and the exegesis on the history of the law as to costs is a judicial flourish which was entirely uninformed by argument.”
Wilson cited 54 cases in his costs judgment, of which only six were relevant to the case. None of the cases disputed the authority of Kohan.
“The extravagant recitation of irrelevant decisions, statutes and text is the anthesis of judicial economy and operates as an inappropriate barrier to accessible justice.
“Almost certainly it increases the cost to parties of obtaining legal advice and all but makes it impossible for a litigant in person to understand the basis for the decision.”
Ouch.
Josh remained unrepentant, because on June 1, 2021 in Field v Kingston (No 4) in a brisk 34 paragraphs he dealt with another wrangle where each party was seeking indemnity costs.
Ultimately, he ordered the parties to pay their own way, but couldn’t resist this swipe because Justice Josh knows best:
“In Guild & Stasiuk (No. 2) I reviewed the authorities on the making of an indemnity costs order and adhere to what I there held, whatever may be utterances at intermediate appellate level about the application of principle from Colgate–Palmolive Co v Cussons Pty Ltd.”
[My bolding.]
On that occasion the judge had a couple of stabs in separate judgments at correcting his primary property orders, all of which were over turned on appeal.
The catchwords from the appeal bench caught it all:
The appeal judges said this was a relatively straightforward case. Yet the initial reasons for the final property orders “extended to no less that 61 pages, containing 235 paragraphs”.
Their Hons continued:
“Equally remarkably, the judgment referred to five pieces of Commonwealth legislative material (including the Child Support (Assessment) Act 1989 (Cth)), one piece of Victorian legislation, and no less than 84 cases.
“Those authorities included three English cases from the 19th century, and rather perplexingly, the decision of the Victorian Court of Appeal of Pell v The Queen [2019] VSCA 186 as well.
“This is all the more noteworthy as the husband cannot read English, and required an interpreter before the primary judge.”
Another Brandis-Porter appointee for the counselling couch.