Yarraside briefs … Sam Hay’s weekly bulletins … DPP Judd v Nettle … A standoff beyond words … Agonising judgment delay in visa case … Theodora reports 

His weekly missive to the troops is a marvel of energy and granular detail. Sam would go to the opening of an envelope if he had the chance. Honestly, I don’t know how he does it. 

I was struck by a couple of recent issues, great and small, that he raised for members’ contemplation. 

In the middle of last month he gave a few details of the quarterly chinwag with the Law Institute.  

Apparently, the agenda was short. After the usual discussion about recovery of costs, the chat moved to the overlap “that can sometimes occur in welcome speeches”. 

“Sometimes” is a nice way of putting it. My field agents report groans as attendees at welcome ceremonies shift from cheek to cheek as the Bar, the LIV, the Attorney General, the Law Council, the ABA bring forth the same grovelling emollients.

The thigh-slappers about the judge’s time at school on detention for sticking a pencil inside another boy’s finger bun; the capacity to run on sand at 5am for about 25 kilometres before heading for another ball-busting day in court; the famous dinner hosted at the Hawthorne spread when the cat stole the grilled flathead; great victories for the most undeserving clients.

By now the gathering is either in tears or asleep. 

Sam is quite right. Synchronicity is needed for the speeches at swearing ins and other formal gatherings of the tribe. Maybe cut them down to one speech from the profession, no more that seven minutes and delivered with humour by someone with theatricality and passion.  

More recently, I found this bit from President Hay buried towards the end of his message – just before the reminder for members to renew their tickets.  

The president was concerned about the Bar taking a stance on the dispute between DPP Kerri Judd and special investigator Geoffrey Nettle. 

This concerned the unwillingness of the prosecutor to bring charges against police who had lied on oath and attempted to pervert the course of justice arising from the Lawyer X human resource drama. 

The costs of the royal commission, the Office of the Special Investigator and associated legal representation approached $125 million over four years – and by way of getting a few heads on poles there’s nothing to show for it. 

Stephen Charles, a member of the Bar’s royal family, opined that he was “appalled” that Judd had not acted. It would be better for a jury to decide, rather than the DPP. 

Former chief crown prosecutor Gavin Silbert was quoted saying: 

“[Nicola] Gobbo offered to plead guilty and give evidence now. What more do you need than that?”

Still Judd didn’t budge, and Sam doesn’t think the bar can say anything about this volcanic distraction to the otherwise seamless running of the legal profession. It’s better for the nether regions to get chaffed on the barbed-wire fence. 

“Members will have seen media coverage concerning a special report tabled in the State Parliament by the Hon Geoffrey Nettle AC KC, who was appointed to the Office of the Special Investigator, and a response to that special report prepared by Kerri Judd KC, Director of Public Prosecutions. 

Both Mr Nettle and Ms Judd are respected members of our Bar performing important public functions. As often happens in the legal profession, two people have come to different views about what are clearly complicated and highly charged issues of significant public interest. 

It would not be appropriate, nor is it even possible given the quantity and confidential nature of the relevant underlying material referred to in the special report, for the Bar to render a view about the respective positions that have been adopted. 

What I can say is that I have no doubt that Mr Nettle and Ms Judd have performed their functions, and formed their judgments, in an impartial, objective, and dispassionate way …” Blah, blah, blah. 

This calls for another poll so that members can decide whether the bar can “render a view” on the relevance of this high level disagreement about the public interest, criminal justice and the rule of law. 

Justice Kathleen Farrell in the FCA last month delivered her reasons in BEQ19 v Minister for Immigration, etcetera. 

It was a relatively straight forward migration case. The applicant was a Pakistani who was seeking a review of a decision by Judge Salvatore Vasta in the Circus Court to refuse him a protection visa.

Sal had dismissed an application for judicial review of an AAT finding affirming a decision of the minister’s delegate. It was decided that things were safe and sound back home for BEQ19, so there was no need for him to stay here.  

BEQ19 had a student visa which had been cancelled before unsuccessfully applying for his protection visa. 

The time all this took brings to mind Dicey Heydon’s remark in Aon Risk Services v ANU – a phrase that appeared on t-shirts: 

“The torpid languor of one hand washes the drowsy procrastination of the other.”  

Salvatore dispensed with his reasons ex tempore on May 15, 2020. The hearing before Farrell was on March 25, 2021 with further submissions from the parties filed in April 2021. 

Judgment was delivered on June 20, 2023 – over two years later, for what is an uncomplicated migration case.

This is not far behind Justice Melissa Perry’s FCA record of two years and nine months in the mighty Nudie Juice v Tax Office stoush. This was lovingly outlined by Cardinal Pelly in the Financial Review. 

At least the Nudie case was marginally more complicated than wrestling with a protection visa. 

Prior to the court Farrell had a career at Freehills and ASIC, with interests in mergers and acquisitions, equity capital market transactions and corporate regulation.

BEQ19 v Minister for Immigration …