Hilary Penfold’s vintage from 2011 … Dry and too much oak … Earlier ACT Court of Appeal birching uncovered … Respondent shot by the coppers … Damages judgment … Overly long and detailed reasons … Riddled with errors … Undermining public confidence in the judiciary … Artemus Jones reprises 

The case is ACT and Ors v Crowley [2012] ACTCA 52, an appeal from a decision of Penfold J. 

This appeal decision makes it apparent that her Honour’s inadequacies as a judge should have been crystal clear to all and sundry almost a decade ago.

Mr Crowley was a mentally ill man who menaced some of the good citizens of Canberra with a kendo stick. When he attacked and assaulted a number of police officers, he was shot by a constable and rendered a quadriplegic. 

He subsequently took civil proceedings against the ACT, the Commonwealth and the police. The trial judge was Penfold J. 

The trial concluded in March 2009 after 28 hearing days.

More than two years later, in May 2011, Her Honour handed down a lengthy judgment in favour of Mr Crowley – awarding him the sum of $8 million in damages.

Not surprisingly, the defendants appealed.

The appeal bench comprised three non-resident ACT judges – Bruce Lander, Anthony Besanko and Anna Katzmann. These judges were uniquely placed (not being locals and colleagues) to offer an objective assessment of Penfold’s judicial abilities.

From today’s perspective – given what we now know of Penfold’s subsequent (and alas continuing) career – the appeal court’s judgment makes fascinating reading. 

In allowing the appeal and overturning Penfold, the appeal judges made a number of specific findings, including the following:

This is a pretty damning litany of judicial errors by any reckoning, but there is one additional finding which resonates with particular force in the light of Penfold J’s recent Supabarn decision.

The unfortunate litigants were no doubt galled to read the following: 

“There is nothing in the reasons which would indicate why it was necessary for the trial judge to take more than two years to consider her decision, except that the reasons are very long and detailed. The reasons published in the Federal Law Reports are 209 pages long comprising 1,093 paragraphs. The appendices are a further six pages. The ACT described the reasons as overly elaborate which ‘serve to undermine the public confidence in the judiciary and the judicial system in the same way that insufficient reasons can’.” (para 56).

Penfold retired from the bench two years ago and has been working her way glacially through outstanding reserved judgments. There is one more in her locker to be fired.