Across the Nullarbor … Another judicial delay … Appeal against failure to recuse in defamation case … Apprehension of bias … Insufficient disclosure of tribunal member’s connection with a complainant in barrister’s fees case … Disharmony in siblings estate dispute … Groper’s latest bulletin
This shouldn’t become a habit, but I’m obliged to report for our journal of record that Justice Jenni Hill has been running late, again.
She heard Barjeba Pty Ltd v Bogg in February 2022 and while the judgment gives a delivery date of June 28, 2023, the reasons were actually published, along with a supplementary judgment on costs, on September 11, 2023 – an interval of 18 months.
She included her usual boilerplate explanation about it not being possible to “complete the reasons for my decision as quickly as I would have liked …”
This not the worst of Justice Jenni’s delays (more than two years and four months seems to be her record), but it’s well outside the court’s timeframe for judgment delivery.
Another matter is pressing in on Hill’s doorstep. She refused to recuse herself from delivering judgment after she had reserved in the defamation case of Lloyd Rayney v Mark Reynolds – in which she awarded the defenestrated Perth barrister a whopping $350,000 plus interest of $88,400.
This was the result of forensic crime investigator Mark Reynolds telling a university seminar in 2014 there is “no need for a cold case review” into Mrs Corryn Rayney’s death because “the offender was identified”.
Rayney had been found not guilty of murdering Corryn Rayney in 2012, and the verdict was upheld on appeal.
The defamation decision took over two years to grind out. See Morpheus arises for a tally of Judge Jenni’s delayed judgments.
Reynolds has appealed on the basis that Hill should have disclosed at the beginning of the defamation hearing her 12-year working relationship with Martin Bennett, Rayney’s lawyer.
The judge claimed that her failure to tell Reynolds about her career at Bennett’s law shop “was of no legal consequence” – anyway the information is on the WA Supreme Court website, if you look hard enough.
Reynolds said that the declaration by one of the appeal judges about his prior relationship with Rayney reinforced his concern that a “long-standing relationship” was not mentioned by Hill or Bennett during the defamation trial.
The brief for Rayney told the court that the concealment was not wilful.
The decision is reserved.
Judging by the recent WA appeals decision in Goldsmith v Legal Services and Complaints Committee things could be quite uncomfortable for Justice Jenni.
Stephen Davies SC, was having a huge row with instructing solicitor Barrie Goldsmith over payment of his fees.
At the time Davies was practising from Francis Burt Chambers in Perth. Goldsmith claimed that the fee arrangement was contingent on conditions that had not been met, so he didn’t cough up.
This was strongly contested by Davies. The dispute ended up in the WA administrative tribunal, which came down heavily against Barrie.
It found he had engaged in professional misconduct by failing to pay the fees; by complaining to the WA Bar Association without a reasonable basis for doing so; by filing a defence in the Magistrates Court which he knew to be untrue; by seeking to include in settlement of the Magistrate Court proceedings a term that Davies withdraw his complaint to the Bureau de Spank.
On December 6, 2022, the tribunal make an order recommending that Bazza be suspended from the jam roll for 12 months – in the state that issued him with a ticket.
Judge Henry Jackson from the WA Dizzo sat as deputy president on the State Administrative Tribunal hearing of the case against Goldsmith.
The trouble was that Davies and Jackson have connections that go way back, and they were not fully disclosed.
They were together at Francis Burt and for eight years they both sat on the board of WA Bar Chambers Ltd.
The Legal Services and Complaints Committee told the court of appeal that Baz had waived his right to object to the composition of the tribunal because deputy president Jackson had made a disclosure to the parties that he and Davies were both at Francis Burt and had both been on the board of its management company.
Appeal judges Robert Mazza, Robert Mitchell and John Vaughan found that the disclosure was insufficient, because Goldsmith was not given actual knowledge of the extent of the connection between the complainant and the deputy president of the tribunal – namely, the length of their association and that they had been on the chambers board at the same time.
At best there was only a partial disclosure of the necessary information. Consequently, Goldsmith had not waived his right to object to Jackson participating in the hearing.
Importantly, Mazza and Mitchell said:
“We do not accept the respondent’s submission that the fact that the relevant circumstances could have been discovered by the appellant on a search of publicly available information gives rise to waiver on his part.
A litigant has no duty to investigate the present or past personal affairs of a judge determining their case and there are sound public policy reasons against the formulation of such a duty.”
Back it goes for another round with a freshly minted tribunal.
Mazza & Mitchell might have scuttled Justice Hill’s assertion that it was up to Mark Reynolds to sniff out the details of her involvement with Bennett’s law shop.
Legal Profession Complaints Committee and Goldsmith, WASAT
Goldsmith v Legal Services and Complaints Committee, WASCA
In other Out West developments, Perth law shop Hotchkin Hanly has been restrained from acting for a plaintiff in proceedings owing to a prior relationship with defendants in the case.
The plaintiff’s claims arose out of alleged non‑repayment of money advanced under loans and mortgages to the companies of the defendants, Tina Bazzo and Allen Caratti.
Bazzo and Caratti variously claim that Hotchkin Hanly previously acted for them in closely related proceedings and provided advice for their companies.
It also acted for John Caratti, the brother of Allen, in proceedings that were adverse to the interests of the defendants. For good measure, John and Allen Caratti also have an “antagonistic” relationship.
The plaintiff, Walthamstow Pty Ltd, contended that the previous role played by Hotchkin Hanly “was somewhat more prosaic that suggested by the defendants”.
Justice Michael Lundberg found holes in the firm’s information barrier protocols. The two solicitors at the the firm who acted in the previous engagement with Ms Bazzo will remain in the same office as the practitioners who will represent the plaintiff against her.
The lack of such a separation gives rise to the risk of inadvertent disclosure through a type of “wordless communication”.
On top of that, the protocol is “ad hoc in nature” – it was without an accompanying educational program and there was no arrangement for monitoring or disciplinary sanctions.
In short, it was a potentially porous Chinese wall.
Coupled with the “long history of prior engagements” of the firm with real estate and subdivision matters associated with Allen Caratti and Ms Bazzo, there was a basis to exercise the court’s supervisory jurisdiction and restrain the shop from acting further in the Walthamstow proceedings against the defendants.
Walthamstow Pty Ltd v Caratti [No 2]
Does litigation between siblings over an estate cause disharmony or does disharmony simply arise as part of the correlative connection between brothers, money and inheritance.
Freshly installed WA Supremo Matthew Howard lit the wick on this pressing controversy in a recent tussle by two brothers about divvying up their parents estate.
“With respect, it may be questioned whether litigation between family members is causative of disharmony and family breakdown or merely correlative.”
In doing so he was making a bit of a splash in challenging an earlier observation of Justice Kenneth Martin (now no longer judging) who observed “with characteristic colour”:
“… the harsh commercial reality of litigation is that disgruntled adult children litigating over assets of their deceased parents is a well recognised source of disharmony and family breakdown …
More family litigation is a bad thing for society and for community harmony more generally. It brings discord and fragmentation that destroys families.”
Howard went on to cite Romulus and Remus along with Cain and Abel “from two different belief systems” to make the point that serious disputes between siblings “is pre-historically and historically well established”.
Mercifully, his historical excursion was confined to a few paragraphs, unlike the lengthy treatise on the relationship between the armed forces and the crown in the seventeenth century recently dispatched by the FCA’s Justice John Logan in Fulton v Chief of Defence – see Curious conduct.