Are the barbarians at the gates of the merged Federal Circuit and Family Court of Australia?
FCA CJ Debbie Mortimer’s recently withdrawn submission to the statutory review into Two-Wigs Willy Alstergren’s Circus Court may have been just the latest attempt to shed light on the dysfunction that Two-Wigs and his trusty side-kick David Pringle have assiduously been attempting to paper over for years now.
Having missed out on his aspiration to be appointed CJ of the FCA (much to the relief of the FCA judges), the word on Collins Street is that Two-Wigs is now concerned that the Rhoades-Dessau review will recommend the inevitable – that there ought be separate heads of jurisdiction for the separate Circus Courts that are Division 1 and Division 2 and that the appellate jurisdiction ought be vested in the Federal Court of Australia.
The Very Rev. Christian Porter and Two-Wigs were vociferous in justifying the “dual appointment” to lead the Circus Courts as one for a limited period of time in order to facilitate the introduction of a single-point of entry and common Rules.
As those tasks were completed in 2021, there is no longer any (rational) basis for Willy Alstergren’s multi-wigged arrangement. Indeed to the contrary.
Releasing him from his onerous dual responsibilities would lead to a host of benefits, including allowing the chief justice more time to actually sit as a judge and hear and determine cases, a task that has substantially eluded him.
Indeed, the Attorney General could consider relieving Two-Wigs of the responsibilities of leading Division 1 in order that he could focus on management of Divison 2 of the Court – after all financial provision remains for the appointment of a separate CJ of either court.
Under the dual appointment and for reasons that can only be speculated about, the Circus Courts have stumbled from tent pole to tent pole, with the resulting rumblings and problems being the subject of a concerted campaign of obfuscation and media announcements akin to the approach adopted by the Catholic Church – but no real or effective action.
Sustained problems are addressed by recourse to the tried and true methods of:
• Relieving added responsibilities from errant Judges, with somewhat successful attempts having been made to remove responsibility for arbitrations and complex cases from the Right Honourable Justice Dr Josh Wilson who, much to the chagrin of the court’s appellate division does not recognise any authority but the High Court or himself.
A listing before the doctor cannot pass without a polemic on the view of the appellate division and the provision of a judgment prepared by HH articulating the principles to be authoritatively applied in his court. Whether there is any correlation in the number of Victorian cases being filed in the Sydney Registry and the risk of encountering Dr Josh is not revealed by the court’s copious statistics.
• The “re-assignment of judges” with Judge Sandy Street having been moved from his accident-prone federal law responsibilities to inflict his version of justice on hapless family law litigants and Judge Dillon Morley being exiled to Parramatta where it is hoped that his customary two year delay in the delivery of judgments will be less noticeable; and
• The removal of any ability to identify, using online resources and judgments, the Division 2 judges who may causes pesky publicity problems – including being overturned on appeal and delivering (long) delayed judgments.
Then there’s the “handballing” of cases back and forth between the courts, a practice that Two-Wigs and his PR team have insisted no longer occurs.
It remains a frequent occurrence – particularly amongst the work averse Judges populating the Eastern seaboard.
Indeed Peter Campton J of Division 1 in August 2024 did not hold back in birching an (unidentifiable) Division 2 Judge in Borja & Charmchi [2024] FedCFamC1F 553 on a long-awaited final hearing.
Notwithstanding Two-Wig’s media onslaught that such delays no longer exist in his kingdom, the proceedings were commenced in Division 2 in July 2021 and in January 2023 was finally listed for a hearing to commence before a Division 2 Judge in July 2023 some two years later – the time estimate routinely adopted by the profession notwithstanding the continued manipulation of statistics in support of contrary assertions.
On the second day of the final hearing, the Division 2 Judge transferred the proceedings to Division 1 asserting that it exhibited a series of “complexities” that had apparently remained undetected for the two-and-a-half years that the judge had (no doubt assiduously) managed the proceedings in their docket and would take four days to hear.
Campton J, running at full forward for the Swans, unloaded:
“The matter was determined in this forum by way of the parties relying on their affidavit evidence filed in Division 2 supplemented by short updating material … The appearance time spent in this court hearing the trial was just over two days …
The assessment made during the trial in Division 2 as to the proceeding being complex was inaccurate. The assessment as to the volume and content of evidence was significantly overstated.
A trial judge in another court who is asked by the parties or either of them to transfer a matter should critically evaluate the information upon which such application is grounded. That judge will be best placed to undertake such an evaluation where he or she has actively case managed the proceeding. I cannot see that either active case management or critical evaluation occurred because either would have made the transferinexplicable.
As presently drafted, the Federal Circuit and Family Court of Australia Act 2021 (Cth) allows for transfer from Division 2 to this court at the discretion of a trial judge absent scaffold or oversight. This is not the position in other courts. That discretion needs to be exercised carefully and cautiously because – as was seen here – the transfer has the very real consequence of serious delay for the parties.”
The apparent Collins Street fracas between the erstwhile Commonwealth AG and Two-Wigs cannot assist the situation, with Two-Wigs no doubt keen to polish the proverbial in an attempt to avoid any undue attention being paid to his crumbling kingdom.
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Ginger: exercising his second amendment rights
At least that frosty relationship may be the reason that the Circus Court has been spared the much-rumoured appointment of the former NSW Law Society Prez, and junior solicitor, Brett ‘Ginger’ McGrath.
Ginger, who has returned as a mediator to the legal powerhouse that is the Campbelltown firm of Marsdens, has not been shy on publishing the alleged promise of an appointment to Division 1 of the court following his Law Society servitude.
Said to be one of the many ornaments formerly occupying the grandiosely styled position of “Senior Judicial Registrar” in the Circus Court and whom Two-Wigs promised would be promoted to the big lights of the main tent, Ginger made a recent appearance to spruik his wares at a ceremonial sitting of the court but has otherwise been continuing his Covid-inspired adventures in Trump land, pursuing his love of the 2nd amendment and the Florida-based incumbent.
