We had the sorry duty to mention Circus Court Judge Gregory Egan in earlier dispatches – at his memorable 2018 swearing in:
“Apart from one treacherous act of base duplicity, I enjoyed all of my time at the bar. I was lucky to start at the bar as a pupil of Griffin QC who quickly taught me three things: (a) there’s nothing better in life than fees; (b) why take on only one trial brief per day if you’re offered three; (c) always tell solicitors about the great victories you had achieved and never tell them about your losses.”
Brilliant.
Not so brilliant was his handling of a migration case, Tariqul Islam v Minister for Rejections & Deportations.
The hearing before HH was held on April 4, 2022 and, bingo, judgment was delivered two-years-and-three-months later on July 9, 2024.
Actually, the case commenced in the court on May 23, 2018, so it took over six years to reach the unsurprising outcome that the application to overturn the AAT’s rejection of a visa for Tariqul and his wife was rejected, with costs.
Judge Egan explained the delay by blaming unknown unknowns:
“A hearing proceeded before the Court on 4 April 2022. After the hearing, for reasons unknown, normal administrative procedures within Chambers were not followed, namely the preparation and saving of a judgment template for this matter, which, if saved, would have flagged that judgment in respect of the proceeding was due to be handed down in a timely manner. The absence of the handing down of judgment only came to the Court’s attention on 4 July 2024 after a file search of outstanding matters was undertaken. That search revealed that the only judgment outstanding was judgment in this matter. In circumstances where the Court generally hands down judgments within a month of a hearing in matters such as the present, it came as a surprise, not only that judgment was outstanding, but also that the Court had not been earlier advised of that fact by either the applicant, or the lawyers for the first respondent.”
Flight Lieutenant Egan J: missing in actionSo it’s the fault of the self-represented applicants and the Commonwealth. There’s no suggestion that Judge Greg should be monitoring the progress of his own docket.
The Federal Courts’ Portal tells us that at the conclusion of the hearing on April 4, 2022, he made an order that: “The matter be adjourned for the handing down of judgement.”
This suggests that the next step was entirely a matter for HH.
In 2021 The Grauniad had a story that indicated Egan was shaping up to be another Sal Vasta.
In the first six months after his appointment he made five decisions that were overturned on appeal.
There was another case where he made comments described by appeal judges as culturally chauvinistic, rude and gratuitous. This involved a Chinese man who had not “taken the time to learn … about what our culture is”. Judge Greg added that there was “no excuse” for not being able to understand the proceedings.
Egan was appointed to the court in the dying moments of Bookshelves Brandis’ tenure as attorney general.
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Judge Antoni Lucev, from the Perth branch of the FCFC, is also in the limelight, again.
He heard Pidorenko v Minister for Rejections in July 2022 and delivered reasons in June 2024 – a decision about whether turnover for the requirements of a business class visa should include GST.
Judge Lucev discovered that the AAT has stumbled into a jurisdictional error, so all was not lost for the Pidorenkos, who had been holding their breath for nearly two years.
We mentioned Antoni earlier this year where in BJP16 v The Minister, he referenced Two Wigs Willy Alstergren, who said:
“Delays in the hearing of judicial review cases in the court’s Melbourne registry are notorious.”
Even so, Judge Lucev then took over a year to deliver his judgment in BJP19.
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Last month, in my roundup of judicial shockers we pointed to the Full Federales’ birching Justice Stewart Anderson’s decision in a misleading conduct case involving teeth straightening products.
HH was found to have multiple errors, including failure to give proper reasons.
This triggered an urgent response from a dedicated reader who recalled an earlier bollicking of HH by the Fulls:
In ASIC v M101 Nominees Pty Ltd (No 3) Anderson imposed a 20 year ban on James Mawhinney from dealing in financial products upon the application of ASIC.
ASIC had run a case that the ban could be made without any finding of a contravention of the law and was justified by proving merely that companies with which Mawhinney was associated appeared to have contravened the law.
Anderson J did not uphold that case but instead held that those companies had actually contravened the law and that Mawhinney was knowingly involved in the contraventions – although ASIC had made no such case.
On appeal the Full Court (Jagot, OBryan and Cheeseman JJ) overturned the banning order: Mawhinney v ASIC [2022] FCAFC 159.
They referred to the “unbridgeable legal gap” between the judge’s reasoning and the conclusion that Mawhinney had been involved in the companies’ contraventions and concluded at [97]:
“No citation of authority is required. Having run one case (it needed to prove only apparent contraventions), ASIC could not succeed on a case that it had repeatedly disavowed (that it had proved contraventions by a person and that Mr Mawhinney was involved in those contraventions).
The making of the restraining order based on that other case, never put and disavowed, involves a fundamental denial of procedural fairness to Mr Mawhinney. The primary judge’s orders cannot stand.”
Ouch.
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Jagot J: fundamental misunderstanding
Jayne Jago J, having graduated to the Saloon, had Justice Patrick O’Sullivan, from her former stamping ground, in her sights when she threw the book at him last month over fundamental errors in a migration case: DAQ22 v Federal Court of Australia.
“Accordingly, it is not merely that the primary judge did not refer to a submission clearly put for the plaintiff and central to the merits of the judicial review application and, therefore, central also to consideration of the interests of the administration of justice in granting or refusing to grant the extension of time.
It is that his Honour fundamentally misunderstood the submission that was put and, in misunderstanding it, failed to consider the second contention at all.
This was not a case of the Court merely not dealing with every submission made. The submissions made about the relevance of NZYQ were concise and focused. The primary judge did not consider one of only two contentions made about the relevance of NZYQ which were crucial to the plaintiff’s case as put. This involves jurisdictional error vitiating his Honour’s decision.”