Dentons partner Stephen Healy, who had been president of Tennis Australia, and was charged with failing to discharge his duty with reasonable care, had apparently admitted to ASIC that rival bidders had been kept from the tennis board.Names on lists … Jonathan Beach, Jayne Jagot and Janine Pritchard … Speculative scribblings … Cabinet contemplations underway … Opinions aplenty from the commentariat … The sound of axes grinding from within the law caper … Appointments imminent
The Australian Financial Review’s legal affairs man, Michael Pelly, on several occasions has plumped for Justice Jayne Jagot from the Federal Court, presumably to fill the vacancy of Justice Virginia (Dinger) Bell when she retires in March.
Then there is the prospect of another federal judge Jonathan Beach to replace Geoffrey (Stinging) Nettle in December.
Beach, according to Pelly, is in the top five and the “most obvious candidate from Victoria”.
In the next breath, Pelly said the Beach Boy might not be a good fit and there has been a “whispering campaign [that he] can be a prickly character who is rather too convinced of his own cleverness”.
Recently, Beach decided ASIC v Harold Mitchell, where he slapped Harold Mitchell with a wet lettuce leaf.
The issue before the court was whether rival bidders were kept out of the loop so Stokes TV could secure an inside run for the 2013 Tennis Australia broadcast rights.
Dentons partner Stephen Healy, who had been president of Tennis Australia, and was charged with failing to discharge his duty with reasonable care, had apparently admitted to ASIC that rival bidders had been kept from the tennis board.
According to those with a close knowledge of the case, Healy’s evidence on this point was different from that given in his affidavit.
Beach dismissed the case against Healy and in the process decided that the defendant’s section 19 examination was not admissible – yet in his judgment he gave no reasons why. The whole thing magically vanished in a dense fog.
Jayne Jagot’s nomination has been pushed by both the AFR and The Australian. She was a partner at Mallesons before going to the bar for four years and then to the NSW Parks & Gardens Court.
She is married to the former chief of the P&G Court, Peter McClellan, of child abuse royal commission fame.
Jagot was appointed to the Federal Court in 2008 in the belief that she might be handy with native title cases.
The AFR’s Pelly said on August 7 that she is favoured ahead of Nye Perram for the High Court. This surprised many who are concerned that she has not shown the gritty intellectual calibre required for the Last Chance Saloon.
A week later, the AFR legal affairs man wrote that “Jagot was on most lists, while Perram was on very few”. He had her at short odds of $3, Beach at $4, Perram at $12.
By October 16, Pelly announced that Jagot “is regarded as the front-runner from NSW”.
While the journalist reports that Justice Jagot’s “cheery demeanour makes her popular with colleagues”, others who have appeared before her are not so certain about that, and in particular find that she jumps to conclusions too quickly.
One case that was on her docket seemed to take nine years to finalise.
Memorably, last year, in a shock decision she threw out the Prudential Regulation Authority’s case against wealth managers IOOF.
APRA claimed that two directors and three employees breached the Superannuation Industry (Supervision) Act because they had not acted in the best interest of beneficiaries.
The regulator claimed that IOOF had a “conflicted corporate and governance structure” and used reserves to compensate members for losses.
Jagot found all this “unpersuasive” and in doing delivered the Federal Court’s traditional cuddle to the corporate respondents.
In August, Jagot wrapped-up an eight-week defamation trial brought by two doctors against HarperCollins and journalist Steve Cannane.
John Herron and John Gill had been involved with the Chelmsford private hospital in Sydney. The hospital’s psychiatric practices had been the subject of a critical report by Royal Commissioner Justice John Slattery in December 1990.
Over 20 years ago Justice David Levine struck out three defamation claims from these applicants, finding the proceedings would be prejudicial to the media defendants (ABC and Nationwide News) because they had laid dormant for far too long.
In October 2018 Jagot refused to dismiss the case after HarperCollins and Cannane claimed the effluxion of time since the events at Chelmsford made the proceedings unfair and prejudicial.
Jagot did not accept it was an abuse of process if the witnesses the publishers needed were dead or unwell and so were unable to prove the truth of what had been written.
Then there is the curiosity of Janine Pritchard, at one point deemed by Pelly to be a “wildcard” appointment to the High and Mighty, then two months later he claimed there “is a strong push” from the west for her appointment.
It’s head spinning stuff, particularly when some sources say that Pritchard is not a heavy lifter on the WA court of appeal.
She and her husband, Justice Joe McGrath, a former WA DPP, are pals of attorney general Porter, so anything is possible.
As state AG, Porter nominated her for appointment in 2009 to the District Court and president of the State Administrative Tribunal.
The following year, again with Porter as state AG, she landed on the Supreme Court and in 2018 she was sent to the court of appeal.
McGrath was appointed DPP by Porter and to the Supreme Court by his successor Michael Mischin.
As far as Pritchard’s appeal work goes, the database shows only 12 decisions which have been certified by her associate.
Seven were appeals relating to sentencing in criminal cases, one was an appeal against a criminal conviction, one related to legal costs and one to a point of procedure.
The other two cases could not be regarded as complex or significant decisions.
As a trial judge her most notable case was a stolen generation claim against the state of WA in 2013. In making an assent of her suitability for the High, Pelly observed:
“It doesn’t hurt that she dismissed a West Australian Stolen Generations compensation claim.”
Old timers at the Perth bar ‘n’ grill say that she does not have significant advocacy experience. She was appointed to the District Court straight out of employment with the government.
Others report that Pritchard is personable and by now she is an experienced judge. Yet that is not on its own sufficient for appointment to the High Court, where a record of exceptional legal smarts is the necessary equipment.
Other curious remarks have been made in passing. Pelly claims that James Edelman “is considered a George Brandis-Turnbull folly” and a “red flag to conservatives”.
Where did this nonsense come from? All that can be hoped is that pipsqueaks from the lunar right, Senators Amanda Stoker and James Paterson, are not involved in meddling with the process as part of their lurid dreams for an Australian Federalist Society.
There have been reports that federal cabinet is deliberating today (Wednesday, October 21) on the proposed appointments.