ACT Supreme Court’s slow-coach judges … Even in retirement the suffering continues … Gone but not forgotten … Delays wreaking havoc on litigants … From Artemus Jones 

Justinian’s readers will be familiar with the long running saga of Lewis v The ACT. This was one of Refshauge J’s last judgments  – handed down, of course, after the obligatory lengthy delay. 

Mr Lewis appealed Refshauge J’s judgment to the ACT Court of Appeal, which dismissed his appeal.

Late last year, the High Court granted the long-suffering Mr Lewis special leave to appeal this decision.

Whatever the eventual outcome, hopefully the High Court will take the opportunity to roundly criticise the appalling judicial culture fostered by Refshauge and Penfold JJ – which has caused damage to numerous litigants in the ACT.

The High Court seized a similar opportunity in Aon Risk v ANU, where Justice Heydon in particular castigated various unsatisfactory aspects of the then existing ACT Supreme Court judicial culture.

Late last year also saw an uncharacteristic burst of judicial activity on behalf of Penfold J – who unlike her partner in procrastination – still has judgments to hand down.

On December 10, 2019, she handed down her judgment in R v Edwards (2019) ACTSC 346.

The sole issue in Edwards was whether the defendant – who had been charged with sexual offences, one involving a young child – was fit to plead.

The hearing took place on April 20, 2016. Penfold held that Mr Edwards was fit to plead to the charges – with written reasons to be handed down later.

Those written reasons – comprising some 26 paragraphs running to six pages – have now arrived – over three-and-a-half years later.

It is not clear what has happened in respect of Edward’s prosecution in the meantime, but he would not have been able to appeal Penfold J’s decision (if he wished to) until a written judgment was handed down.

If the prosecution has been delayed pending delivery of this judgment, the situation is even more unacceptable. A delay of this magnitude in a case such as this beggars belief, and no judicial system worthy of the name should tolerate it.

Yet the woe for some unfortunate litigants in the ACT hasn’t ended. Penfold J apparently has two further outstanding decisions to hand down. One case concluded in December 2018. 

Given the scale of the delays regularly experienced by litigants unlucky enough to have had Penfold J allocated to them as a trial judge, it would probably appear churlish to criticise her Honour for a relatively short 13-month delay. It is pretty safe to predict, however, that a judgment will not be handed down anytime soon.

The other case, however, is more disturbing. The hearing concluded in August 2014. 

Apparently, it is a complex matter, but that cannot even begin to justify a delay in excess of five years in handing down a judgment.

A further potential legal problem awaits the hapless litigants in this case, no matter who wins. Excessive delay – of itself – may constitute a ground of appeal, and can vitiate a judgment independently of the quality of the judicial reasoning contained in it.

No litigant should be placed in such an unfair position.

Other Australian jurisdictions have, from time to time, had to deal with similar problems with individual judges. They have done so with varying degrees of effectiveness. 

The relevant authorities in the ACT have failed to deal with the Refshauge/Penfold situation – which has been unacceptable for years.

It is no answer to say that the problem no longer exists because the current ACT Supreme Court judges are a much better bunch – which undoubtedly they are.

Unfortunately, the legal framework and the institutional inertia, which allowed the problems created by “the torpor twins” and continue unchecked for years, are still firmly in place. Until that changes, litigants will continue to suffer for some time yet.