Muck up day … Judges out of school … Jokers on the tear … Pulled into line and told to stand with their noses to the wall … Justices Wilson and Harrison open their lunch boxes … Associate of judges Ginger Snatch reports 

Justice Ian (Hormones) Harrison’s dashing 8.54 am email birching of an obscure National Party MP over his attitude to the Voice was only outdone by family court judge Joshua (Genius) Wilson’s proposed speech to an international jamboree of jurists suggesting that judicial colleagues were not the brightest or the best – but he is, of course.

Chief Justice Andrew (Taco) Bell in NSW and Two Wigs Willy at the FCFC went into melt-down, and wet lettuce was applied to the wrists of the offenders. 

In a painfully laboured speech prepared for the festivities of the International Association of Judges in Taiwan, Wilson decided it was a good time to lay into members of the judicial tribe. 

Two Wigs Willy managed to remove the speech from the courts’ website, and cancel Josh’s attendance at the Taiwan beano.  

The full version of his planned IAJ presentation is here, but we have painstakingly extracted HH’s juiciest moments: 

Lamentably, not every appointment to judicial office is the best person for the job. Thankfully, the days of gender-based criticism are largely over. Yet, merit-based appointment is not always at the forefront of the selection criteria …  

A person who does not possess characteristics against which it can fairly be said that such a person is a leader in the profession should think twice about entertaining the thought of judicial appointment … 

A person who does not practise in court every day should carefully consider whether appointment to the bench is for her or him. 

Personality defects … In this context I am addressing a more sinister, latent personality issue from which the judge may suffer, possibly even unknowingly. A person who suffers from undiagnosed ADHD, asperger’s syndrome, bipolar disorder, autism or similar conditions should give very serious consideration to the wisdom of taking on the role of the judge … 

[NB. Narcissism was omitted from his range of afflictions.] 

In practical terms, aside from the rare appointment of a person of genius qualities, appointments are often based on the alignment of appointees’ political leanings to those of the government of the day. Conservative governments tend to appoint conservative minded black letter lawyers … 

Progressive governments are more willing to appoint solicitors even to higher state courts. For example, the current Chief Justice of the Supreme Court of Victoria was a solicitor who never practised as a barrister. Progressive governments are more likely to appoint to benches based on gender and ethnic diversity, irrespective of merit or expertise … 

[NB. Nasty swipe at Anne Ferguson CJ.]

In short, a person’s political persuasion is very relevant to the appointment process … 

By reason of the political nature of appointment to judicial office, aspirants for judicial appointment often cultivate the friendship of the attorney-general of the day in the hope that appointment to judicial office will follow. This is especially apparent when a political party is in opposition and a legal practitioner assists the cause of the opposition by legally assisting opposition political members in discrete court events, always on a pro bono basis … 

Is it correct to say that the brightest and the best are appointed to judicial office, independent of political persuasion? The answer is in the negative in the case of the overwhelming majority of appointments. It sometimes occurs that a government appoints a person to judicial office who is aligned with the opposite party’s politics. That is a rarity. Occasionally, an attorney-general appoints a person as a judge who is wholly apolitical. Again, that is a rarity. Appointment to judicial office is a political activity.”

[NB. Fatuous beyond belief. There are numerous appointments by Labor governments of people who are conservative by nature and disposition.] 

This was followed by extensive recapping of the exploits of Lionel Murphy, Angelo Vasta, Magistrate Carmen Randazzo, Marcus Einfeld, Peter Vickery, Dyson Heydon, and others from the pages of the naughty book. 

Wilson wrapped his proposed speech with this: 

“If the [judicial] burden is too great, if the decision to accept judicial appointment was wrong, if the job simply is not what it seemed, resignation is an option. In that eventuality, the judge is confronted with the stigma of a failed career as a judge and the forfeiture of lucrative pension entitlements. 

Aesop’s fable remains as true now as it ever was circa 260 BC -‘Be careful what you wish for’.” 

Putting aside the sweeping generalisations and the patronising tone about who is suitable or not suitable for appointment, some of what Wilson says about political appointments is true.

You might wonder how a family law judge with a full docket of cases manages to write a 78 page paper – something only within the capacity of a “legal genius”. 

If you want more, there’s a 32 page speech Josh prepared for the Resolution Institute in September 2022. 

The usual rule is that each party bear their own costs, except in exceptional circumstances (Kohan’s case). 

Josh said that the finding about indemnity costs in “exceptional circumstances” is of “highly dubious utility”. 

The Fulls had to remind him about binding authority from higher up the chain of command: 

“As this case demonstrates, the refusal to follow precedent almost inevitably leads to an appeal and perhaps a rehearing with the attendant systemic costs and even more stress and legal costs for litigants.” 

Josh cited 54 cases in his judgment, of which only six were relevant to the case, and none disputed the authority of Kohan. 

He also drew on the Statute of Gloucester (1278 6 Edw 1) and traced the history of equity’s treatment of costs from 1742. 

The appeal judges thought this was “odd”, adding that the “extravagant recitation of irrelevant decisions, statutes and text is the anthesis of judicial economy and … almost certainly increases the cost to parties of obtaining legal advice and all but makes it impossible for a litigant in person to understand the basis for the decision”. 

Justice Josh was having none of that cheek. A month later in Field v Kingston (No. 4) he couldn’t resist a return biff: 

“In Guild & Stasiuk (No. 2) I reviewed the authorities on the making of an indemnity costs order and adhere to what I there held, whatever may be utterances at intermediate appellate level about the application of principle from Colgate–Palmolive Co v Cussons Pty Ltd.”  

[Our bold.] 

In Wei v Wei HH made a couple attempts at correcting his primary judgment – with all attempts overturned on appeal by Judith Ryan, Michael Kent and Peter Tree. 

The appeal catchwords said it all: 

“Where the primary judge overlooked updated affidavit evidence – Where the primary judge improperly excluded affidavit evidence – Where the primary judge erred in fact, contrary to the evidence – Where the slip rule cannot be called in aid to correct such errors – Where the orders made in ostensible reliance upon the slip rule must be set aside – Where the orders reflect a patent factual error by the primary judge – All three appeals allowed – Matter remitted – Costs certificates ordered.” 

Wilson referred to 84 cases in his judgment, including English authorities from the 19th century and “rather perplexingly”, the decision of the Victorian Court of Appeal in Pell v The Queen. 

The appeal judges added: 

“This is all the more noteworthy as the husband cannot read English, and required an interpreter before the primary judge.” 

In response to the outcry over Wilson’s proposed speech to the IAC, Two Wigs Willy released what appears to be an angry statement: 

I was alerted by a number of judges that a paper had been uploaded to Courts’ website without my knowledge or permission. 

The paper written by Justice Wilson related to a speech his Honour was intending to deliver at a conference in September. His Honour was attending the conference as an individual member of an international association of judges, not as a representative of the Court. 

As soon as I was alerted to the paper, it was immediately taken down from the website. A statement was made to all judges indicating that the paper did not reflect the views of the Courts and that protocols were in place to make sure this could not happen again. 

Further, Justice Wilson will not be providing a paper at this conference nor will he be attending, and I have taken steps to ensure there is no further publication of the paper’s content. 

[Except here] 

The judge has apologised to the judges of both Courts for the comments. 

I reiterate that I am extremely proud of each of the judges of the Courts and hold the greatest respect for the history of our Courts and their judges, both past and present. 

His Honour underwent major surgery last week and is currently on leave while he recovers. Upon his return he will be receiving counselling and mentoring. 

Steps have been put in place to ensure that speeches and papers are not published on the Courts’ website without my written approval.  

And the Judicial Officers Association also smartly defended the patch.  

Wilson was appointed to the Circuit Court by Bookshelves Brandis and to the Family Court by The Christian Porter. 

Conaghan is a former copper and Kempsey solicitor and by no means the worst of the National Party buffoons. 

Harrison’s despairing missive next morning, using the Supreme Court’s email address, has been thoughtfully made available to The Australian. 

He claimed Conaghan’s oration was the “lowest ebb of my day”. 

“I appreciate that you are a member of Mr (David) Littleproud’s party, one of the first publicly to support the NO vote. I despaired when he announced that decision, replete as it was with the perpetuation of institutional abuse of Australia’s First Nations people. You (sic) speech last night only increased my despair. 

“I am not one of your electors so my opinion on anything has no direct bearing upon you (sic) electoral status. However, I was moved while listening to you speak to write to you now to express my complete sadness, not that you have predictably taken the stand that you have, but that you obviously do not understand or appreciate the depths of paternalism and racism that oozed from your words. 

“Your argument is predicated upon the position that the Voice will add nothing practical to the lives of indigenous Australians. 

“We can argue about that forever, but I will not do so here. However, what is so subtly disgusting about your contention is that it promotes the counterfeit spectre of harm to the Australian community while ignoring the immense and patently harmless symbolic benefit that recognition of the Voice will give to a long-neglected section of our society. 

“There are no sleeping constitutional issues here. It is a simple matter of human decency. Your position, and the position of your party, is niggardly and cruel and mean-spirited. It is patently based upon a political stance that is indecent in its ignorance. May you live long enough, and acquire sufficient wisdom and self-awareness, to be ashamed of yourself. 

Regards, Ian Harrison”

Bravo, Hormones. Well said … except you are not meant to say it, especially to someone who is going to peddle it to the reptiles of the press and then noisily complain that the separation of powers has been vandalised.  

“It is generally prudent for judges to avoid making public statements on topics of political or public controversy. Justice Harrison’s email to Mr Conaghan was not a public statement nor intended for public consumption.” 

Justice Harrison has had some notable priors, including taking home the Silver Ernie for Sexism for his cross-examination of the young Tara schoolgirl who claimed to have been raped on a tour of Italy: 

“To sit on a bar stool with a skirt as short as that takes a lot of confidence, do you agree?”