Time’s up … Lengthy cogitation … Delays at the judicial mill … Justice Jackman birches slow coach judge Kathleen Farrell … Delays at the AAT … Old laggards from WA Supremes … Favourites and new entrants to the club

Jackman was hauled in to sort out a mess of Farrell’s making in a contract case. It appears the glacial Farrell has been unable or unwilling to deliver a judgment before she is to retire from the court on August 1 – not before time.

The trial before Farrell took place for six days in October, one day in November and two days in December 2020.

Justice Jackman said the reference to 2020 is “not a misprint”, yet “regrettably” judgment still has not been delivered – two years and seven months after the hearings finished.

He added:

“The delay in giving judgment is all the more glaring in light of the fact that Farrell J made freezing orders against the first and second defendants on 27 September 2017, which were subsequently varied but remain in place.”

Further:

“The Chief Justice has apologised in correspondence to the parties and their legal representatives on behalf of the court for this situation. I wish to add my own apology for what has happened.”

Chief Justice Mortimer also suggested to the parties that they might apply to Justice Jackman for a federal proceedings costs certificate so that the Commonwealth picks up the bill.

“Rather, the problem seems to be one of unwillingness to discharge the judicial function of giving judgment in the proceedings. If it is not possible to make findings upon which the grant of a certificate under s. 10 depends, no party can receive costs under the section …

While Farrell J is not one to rush to judgment, the evidence does not indicate any acceptable reason why her Honour could not have given judgment by 1 August 2023, even if her Honour did not begin the task until 30 June 2023.”

We had the unhappy duty earlier this month to mention Kathleen’s tortoise like judgment in an uncomplicated migration case, requiring over two years of cogitation.

She is a former Freehills partner, and acted for Christopher Skase who absconded to Spain as his corporate empire tottered.

Wading through the mountainous material, Jackman J concluded that it was improbable that the parties had entered into a legally binding contract for the establishment of a Chinese educational business in Australia, which subsequently went belly up.

A claim for statutory misleading conduct also failed as did a cross claim by the respondents. No order as to costs.

After 11 years at the court, it’s quite a send-off for Kathleen.

To the island paradise of Taswegia, where our field agents have tracked the cramped speed limits of senior AAT judgment-writers Major General Greg Melick and the Hon Matthew Groom.

Among his multiple roles, Melick is a part-time deputy president of the AAT. He took up the challenging case of a former Centrelink employee who claimed injury after being stuck in a lift.

It involved consideration of whether the injury arose from the course of her employment and the extent of any underlying condition.

Three hundred and nine paragraphs later and 20 months after the hearing closed Greg concluded the applicant had a pre-existing medical issue and the lift incident did not exacerbate it.

In passing the Major General did say that the delay was partly due to the wait for the full court decision in Wuth v Comcare. That judgment was delivered on March 22, 2022, so it took a further year after that for his decision in Fisher to see the light of day.

Maybe the delay is also attributable to Greg’s large number of other commitments. He’s the current president of the RSL, despite a petition seeking his removal from the position because he is “a career reservist”.

He is also chairman and chief commissioner of the Integrity Commission of Tasmania, plus maintaining his practice as a barrister and mediator.

The Hon. Matthew Groom, a former Tasmanian Liberal politician and now a senior AAT member, is also dragging the chain with delays in judgment turnarounds of 18 months and more.

In Azaria Family Day Care Pty Ltd v Secretary Department of Education Groom dealt with the cancellation of the applicant’s approval to provide child care services. It took more than 18 months.

Chick and Comcare (Compensation) was a workers compensation case involving a Border Force officer’s knee injury on a training course. Also more than 18 months from the hearing in January 2022 to reasons on July 5, 2023.

Senior Member Groom also handled Heather K Haig Executor of The Estate of Joy Garvin De Vos and Secretary, Department of Health and Aged Care, involving the recalculation of assets and income for the purpose of a residential care subsidy.

That took more than 20 months in arriving at a conclusion.

In July 2018, Justinian noted that Matthew had resigned from the Hodgman government in September 2017 to spend more time with his family.

Ten months later he had saddled up at the AAT, alongside fallen Tasmanian Liberal Andrew Nicolić (aka Андрија Николић).

Matthew’s father, Ray Groom, was a former state premier and a federal MP who took a 10 year appointment to the tribunal as a part-time deputy president – similar to Maj. Gen. Melick.

There is also another batch of out-of-time judgments from our long-term favourites.

Larissa Strk from the WA Supremes makes a return entry to the slow-coach club with three recent snail-like performances in cases that did not involve great difficulty.

Kanawati v L’Haridon Bight Mining Pty Ltd involved a decision about an inadequate penalty for a workplace accident. That ran from a hearing date on September 1, 2021 to a judgment on July 17, 2023 – an interval of nearly two years.

Markovic v Hodgson was an appeal against a refusal to make a spent conviction order under section 45 of the WA Sentencing Act – i.e where an offender of previous good character is unlikely to do it again and where the offence is trivial.

That was also a stretch of almost two years from a hearing on August 2021 to the judgment on July 18, 2023.

There was 20 months to Larissa’s judgment overturning a driving conviction on appeal, Mann v Vinicombe – with a hearing on November 2, 2021 and a judgment on July 17, 2023.

Justice Strk, ex-Mallesons, was sworn in as a justice of the WA Supremes on July 30, 2021, having previously been the court’s principal registrar for five years, with time as an acting judge.

At the ceremony Peter Quinlan CJ remarked:

“Justice Strk has a keen sense of justice and what can only be described as a prodigious work ethic that very few, if any of us, could hope to emulate.”

The Bar n’ Grill president Martin Cuerden added to much rolling of eyes:

“As a judicial officer, your honour has shown yourself to be courteous and patient to appear before, quick in producing judgments, and correct in the outcome; those three qualities, of course, reflect the trifecta of judicial achievement.”

Attorney General John Quigley observed:

“Your honour is known for the sense of fun and humour, and is not afraid to boogie on the dance floor.”

Justice Strk has been mentioned in our western dispatches on multiple previous occasions:

Age shall not weary them
Western mail
Fees please
Laments from across the Nullarbor
For the record

And where has Jenni Hill been hiding for months on end?

Last time we mentioned WA’s Justice Hill in a substantive way was in March 2023 – recording her sixth slow delivery, of two or more years.

We’re now up to seven with Barjeba Pty Ltd v Bogg handed down on June 28, 2023 after being heard on February 7-9 and 11, 2022 – a relatively speedy turnaround of 16 months.

Admittedly it was a more complicated case about oppression regarding a shareholding and payment of dividends.

Justice Jenni dutifully and invariably explains why her judgments are late, and she didn’t let us down in the latest instance.

“It has not been possible to complete the reasons for my decision as quickly as I would have liked.”

However, the the good news is that the primary issues turned on the documents; she “had the benefit of closing submissions from counsel”; and she made “contemporaneous notes to assist in my assessment of the credibility of the witnesses”; and she re-listened to portions of the evidence.

So, all’s well.

Justice Hill also has been the subject of Justinian’s attention, not only for delays, but in another instance failing to disclose to a defendant in a defamation case, Rainey v Reynolds, that she worked at Martin Bennett’s firm which was acting for the plaintiff.