Bookshelves Brandis lays it on thick for departing CJ … Overly wordy judicial frolics … NZ lawyers overworked, stressed and asking judges to be nice to them … Latest delays … Theodora reports
The former AG was concerned that the appointment of Stephen Gageler as chief justice and Robert Beech-Jones as a justice attracted so little attention.
The sign of a good attorney general, he declared, was the quality of their judicial appointments – that’s why he’ll be remembered for Sal Vasta’s elevation to the Circus Court.
But it was Kiefel who was garlanded by the great statesman – unsurprising since it was on his watch as AG that she was appointed the High Court’s CJ.
Bookshelves said she’ll be regarded as “one of the most remarkable chief justices Australia had had” … “She is real” … Her “leadership of the court is a study of calm authority” … She possessed “scholarly assurance with practical appreciation of the need for the court to give clear guidance”.
However, one of the outstanding things Kiefel did as chief justice was to set the hounds onto Dicey Heydon after six female associates complained of his sexual harassment.
She commissioned an independent investigation and report by the former Inspector-General of Intelligence and Security Dr Vivienne Thom – who upheld the complaints.
Kiefel issued a public statement about the investigation, adding:
“We’re ashamed that this could have happened at the High Court.”
It would not have happened in Smiler’s day when, as Michael Kirby discovered, the CJ was keen to sweep Senator Bill Heffernan’s wild and inaccurate allegations under the carpet.
To bring one of its justices to account was a landmark moment for the High Court. Not a word about it in Bookshelves’ encomium.
In Gassy v The King (August 24) Livesey P, with Justices David and Stein complained about the “recent drift towards lengthy sentencing remarks”.
To emphasis the point they kindly included a footnote, referring to a Western Australian appeal decision in Lee v Western Australia – an appeal against sentence in a case of unlawful assault resulting in death:
“With all respect to the sentencing judge [Justice Bruno Fiannaca], it may be doubted whether sentencing remarks approaching 40 pages in length and taking two hours to deliver, which included the extensive recitation of High Court and Court of Appeal authority, were necessary or appropriate, particularly in a case where the offender is functionally illiterate and affected by Foetal Alcohol Spectrum Disorder and associated cognitive and behavioural deficits.”
Actually, Justice Fiannaca also makes an entry into the Pantheon of Protracted Productivity. He heard Sharp v The City of Sterling in March 2022 and coughed-up the judgment in August 2023 – a 17 month hiatus.
Perhaps he got distracted writing 40-page sentencing remarks.
Lengthy elaborations can be found elsewhere. Fulton v Chief of Defence August 18, 2023) concerned an appeal from an airman against his dismissal from the RAAF due to his failure over an extended period to pass a personal fitness test.
Justice John Logan RFD of the Federales, a military chap who reached the rank of major in the Army Reserve, was in the minority and would have allowed the appeal. Sarah Derrington and Angus Stewart were not so inclined.
Logan rabbited on for 133 paragraphs and in the process gave an exposition of the relationship between the armed forces and the crown in the seventeenth century.
He drew on the Encyclopaedia Britannica for details about the New Model Army, the Declaration of Breda, King Charles II and the Glorious Revolution, along with C.M. Clode’s The Military Forces of the Crown.
Logan J traced developments following the regicide of Charles I, the military dictatorship of the Lord Protector Oliver Cromwell, the danger of anarchy following Cromwell’s death, the restoration of Charles II with his unlimited power to raise a standing army, the arrival on the throne of William & Mary – with the condition that parliament must consent to raising and keeping an army in peace time.
Then there was the Mutiny Act of 1688, the Act of Settlement 1700 and the Roman Catholic Relief Act 1829.
From this melange of history, Justice Logan arrived at the point that as a sequel to federation, the authority for the armed forces in this country has always been statutory – although there is the strange arrangement where the governor general is the commander-in-chief.
The Chief Justice of the NZ High Court, Susan Thomas, and the Chief District Court Judge, Heemi Taumaunu, have written to all judges and judicial officers bringing to their attention a list of “wellbeing concerns” from the legal profession in the Land of the Strangled Vowel.
The troubles include:
As a result of these distressing conditions practitioners are bailing out, “resulting in even more pressure on those who remain”.
For their part, the Chief Justice and the Chief Judge want to see that members of the profession are healthy and productive.
Open lines of communication would be helpful and accordingly civil and criminal stakeholder meetings are underway along with District Court meetings throughout Cloudland.
The NZ Law Society followed up, saying it was pleased that the judges have picked up the message.
Most of these decisions stretched beyond the two-year mark for Kirton and there was one of 19 months for Baird, although in that case the applicant had commenced proceedings nearly four years earlier.
A day after our report Kirton dropped three more decisions with turnaround times in the 18-month zone – comparatively speedy.
And Julia Baird has taken two-and-a-half years from the finish of the hearings to deliver Tancred v Shallam Pty Ltd. Updated quantum schedules were delivered a leisurely 17 months after the conclusion of the hearings and HH then took another year and a bit to come up with the judgment – in favour of the claimants.
Her previous record was two years for her decision in Brennan v Foster Blake.