The Map – Cowboy judge knocking over the china – One man’s judicial rodeo, with leaks … Mess-O-Potamia – Big Middle Eastern river system has court watches intrigued … Justice Jenni slows down to set a new record … Leading law academic shakes-up procedural fairness at the AAT … Theodora reports 

The Van Diemen’s Land parliament is to be recalled on Tuesday to establish an inquiry into the judicial suitability of Supremo wild-boy Greg Geason. 

Following his appearance last week in the Hobart Magistrates Court on charges of common assault and emotional abuse, Hobart Town has been agog with dismay. 

The latest twist is that a text message sent to Geason from chief justice Alan Blow on Tuesday (Dec. 5) has been leaked to one of Lord Moloch’s hacks at The Australian. 

It is claimed the message said: 

“The Attorney General [Guy Barnett] has spoken to me again. It is planned that at 2pm the governor will announce that she is recalling parliament next Tuesday (Dec. 12) to consider a bill for the establishment of a commission to consider your removal or suspension. 

One option would you be to resign before this goes further.” 

Blow is trying to protect the dignity of the court from the entrails of Greg’s frolics and tempestuousness. 

However, Moloch’s Hobart hack rehashed a lot of froth about the independence of the judiciary and the presumption of innocence. 

When it comes to Apple Isle judges upsetting the apple cart there are higher-order considerations. The priority is to “keep a blaze of glory around the court” (Wilmot J, R v Almon (1765) Wilm 243 at 270. 

The newspaper attributed the text message details to “sources close to Justice Geason”. Throughout the newspaper business that is widely understood to mean that Geason was aware of and facilitated the leak, in an effort to sabotage his chief justice. 

Possibly, he’s so close to the source as to be indistinguishable from it. 

Those with their miserable gripes invariably from a safe place in Moloch’s fishwraps. 

The court appearance followed the judge being slapped with a Police Family Violence Order. 

Justice Greg, 62, was granted bail and will reappear before a magistrate on February 6. This was all arranged in a special out-of-hours session of the court to which the media was denied access, with an official citing “court security” as a reason. 

It appears Geason represented himself at the hearing. 

A day later (December 2) a statement was issued by the Justice Department apologising of the media exclusion. It was a “decision made in unusual and unprecedented circumstances”. 

Last month Alan Blow CJ asked Geason to take leave until further notice. Brian Martin has been appointed as a acting Tassie judge until June 30, 2024 to fill the hole created by Geason’s absence and to help tackle the serious case backlog.

He was a former judge of the SA Supremes before taking the reigns as CJ of the Northern Territory. He has travelled further – being an acting judge of the WA Supremes and in Van Diemen Land until June 30 this year. 

Usually by now, when a ton of bricks hits a judicial officer they either resign for family reasons or go into the library with a loaded weapon. 

It has been brought to readers attention in a previous edition that Geason’s appointment was done under the Old Mates Act at the behest of his pal Premier Willy Hodgman. 

Various lawyers and politicians were sure that barrister Philip Jackson had been recommended for the job by the judicial selection panel. 

Then in February 2021 we reported that Greg was the star performer at a major snogging incident at the Grand Poobah, a Hobart nightspot. 

To mark the opening of the new law year Greg had Sarah Gregory, his female associate, on his lap in a close embrace – no doubt inspired by Christian Porter in Canberra. 

This resulted in him being counselling to “protect the reputation of the court”. 

Later Ms Gregory fled to Victoria leaving in her wake a claim for compensation – alleging she was “shamed and humiliated, accused of misconduct, and subjected to punitive sanctions without any fair processes being followed”. 

It was left to celebrity discrimination solicitor Josh Bornstein to sort it out.

The charges of common assault and emotional abuse related to another woman with whom the judge had picked up. 

Emotional abuse is an offence that requires the crown to prove a pattern of behaviour. 

In other instalments of Justinian, we’ve reported here that Justice Geason was quashed for apprehended bias; and here he forgot about how cases should be pleaded since the adoption of the Judicature Act; and here he messed up a sentencing decision.  

Unfortunately, Tasmania is without a Judicial Commission which might of handled these upsets discretely. How it moves to the glare of the political stage. 

Justice Michael Lee’s references to the Mesopotamian river system need further interrogation. 

In a recent judgment about cross-examination in Lehrmann v Network Ten, HH said: 

“To adapt a comment I made earlier in this case, the Tigris and Euphrates of the truth defence is a sharp contest of credit between two people over what happened behind closed doors. Just like Dr Collins, Mr Whybrow is entitled to seek to impugn the credibility of the witness he is cross-examining within proper limits. Although it is fair to say it has not moved along at the speed of summer lightning, this is not entirely due to the mode of questioning adopted by the cross-examiner, and I do not consider the cross-examination has strayed beyond proper limits.” 

In 2021 the two rivers were also flowing through his judgment on liability in ASIC v GetSwift Ltd, which he described as a “Daedalian maze”: 

“This is not a continuous disclosure case with the complexities that one oftentimes finds in forecast cases or cases relying heavily on opinions, such as opinions as to solvency. Speaking generally, this is a case about information as to the entity striking or potentially striking deals with commercial counterparties which had the potential to generate significant revenue – this might be thought to be the Tigris and Euphrates of material information.” 

Lee J seems to be the only judge familiar with the expression “Tigris and Euphrates”. 

It is not in popular use and cannot be found in any Thesaurus. Could it be a mysterious analogy relating to two roughly parallel streams of water coursing through troubled regions?  

Or is there a suggestion relevant to moisture amid aridity, or the movement of liquid downhill? 

The Euphrates and Tigris converge at one point to create marshes and swamps. Is that something to do with a message the judge is trying to send? 

Who would have known?

It might get an entry in the Federal Court’s Glossary of Legal Terms. 

A special gong is being minted for WA Supremo Justice Jenny Hill who has set a new record in the Handicapped Judgments Stakes.

She has just pipped herself and brought in a decision two and a half years after hearing Rock JV Pty Ltd v Theiss Pty Ltd [No 2]. 

Her previous best snail trail was two years and four months for Nguyen v Nguyen Huynh and a similar time for C.H. Leaman Investments v Tuesday Enterprises. 

Quaintly, the Rock JV case was an action for damages arising from delays caused to the delivery of rocks at Chevron’s Wheatstone gas project in WA.

A delayed judgment about delays deserves a special place in the judicial Pantheon. 

Given the reasons were 347 pages long, it’s understandable that HH would have had to take her time. These reasons are so gargantuan that the judge’s traditional boilerplate explanation and excuse for the slowness has been buried in the landslide. 

It’s hard to keep up, but here’s Jenni’s award winning tally to date … 

Barjeba Pty Ltd – 18-months

Marchese – 2-years 

Lamers – 2-years-2-months

Mirabela Nickel Ltd – 2-years-and-2-months

Rayney v Reynolds – 2-years-3-months 

Nguyen v Nguyen Huynh – 2-years-4-months 

C.H Leaman Investments – 2-years-4-months 

Rock JV – 2-years-6-months 

Emeritus Professor Paul Fairall is a well regarded legal academic and the foundation dean of Curtin Law School. He has also been foundation law dean at the University of Adelaide and a former director of the Australian Academy of Law. 

He reviewed the criminal code for the Northern Territory government and was a policy advisor to the Victorian government on criminal law. 

In the 2019 pre-election rortathon by the Coalition, Attorney General the Very Rev. Christian Porter appointed him to the AAT as a senior member. 

Apart from concerns that under the Coalition the tribunal had become a Liberal Party collective, the then shadow AG, Mark Dreyfus, said that Fairall had provided a job to Porter at the university during an interregnum while the politician was moving between the WA and Commonwealth parliaments. 

Porter claimed that his job offer at Curtin was made by the vice chancellor. 

Fairall’s strong academic credentials have not prevented him making a significant procedural fairness blunder in a AAT migration case involving a Filipino man who was found guilty of aggravated sexual assault of his stepdaughter, at various times when she was under 14 and under 16. 

In August he was sentenced to prison by a NSW District Court judge with a non-parole period of seven years and 10 months.

His visa was cancelled on character grounds and this was was upheld by the minister’s delegate. Just the sort of person Benito Dutton would lock-up for life. 

He came before Fairall to get the visa back. After the minister’s case had closed, the senior member had this Q and A session with the applicant: 

“Would it not be better for them [your family] if you just weren’t here? Many people might say that to you. What do you think? What’s your response to that? — Maybe you’re right, yes. I think so.” 

“So I’m just trying to understand whether you feel in your heart that you would actually be doing the right thing if you actually left the country? — Yes.”

“Even though you fear that you might be killed in the Philippines — Yes.” 

Justice John Halley in the FCA found that the effect of these interventions deprived the applicant of a real opportunity to present his case. 

“The impugned questioning was a most unfortunate approach for the tribunal to take and I am satisfied that it denied the applicant procedural fairness … 

The inclusion of leading questions … were inherently suggestive, particularly to a vulnerable witness.” 

“Would it not be better … [and] Many people might say” …convey evaluative moral suggestions that they should be answered in the affirmative. 

Not only was the applicant unrepresented, he was ashamed and remorseful. “It is hardly surprising that he, in all the circumstances, felt he had no alternative but to agree to those propositions.”

The confessions that were extracted by the senior member were inconsistent with the case that the applicant was seeking to put to the tribunal. 

Fairall got quashed with an extension of time granted for filing a amended originating application. 

HKRC v Minister for Rejections and Ejections … 

On Thursday (Dec. 7) Attorney General Dreyfus introduced the Administrative Review Tribunal Bill, which sweeps away the Administrative Appeals Tribunal and sets up a fresh outfit to get stuck into the case backlog. 

The legislation requires a “transparent merit-based appointment process for members”.