Canberra’s judgments of perfection … Prize giving … God help us … Blood oath … Witnessing stat decs 101
JUSTICE Richard Refshauge from the ACT Supremes has hung up his wig after nine years of judging.
There was a fine send-off in the May issue of the ACT Bar Bulletin, extolling many of Roughshagger’s virtues, but ignoring the Galapagos tortoise in the room.
“I believe his main memory as far as the law is concerned will be in his many landmark judgments. Whatever topic or area of law he wrote a judgment on, every counsel knew that his judgment would be well researched and always accurate. His Honour worked incredibly hard and was a perfectionist.”
There was silence about the perfectionism that kept litigants in agonised suspense for years.
His last recorded judgment on the ACT Supreme Court website was heard on October 8, 2015, with judgment delivered on May 10, 2017.
HH did express some remorse:
“It was heard by me on that day. Regrettably, I then contributed to the delay. In part, that was because I was incapacitated for some months in late 2015 and early 2016 and, by the time I returned to duty, the pressures of the business of the court delayed completion of these reasons.
So far as I was responsible for this further delay, I express my regret and apologise to the parties.”
It was by no means the slowest judgment of perfection. He heard a tenancy dispute on April 1-2, 2009 and delivered judgment on June 26, 2013.
Four-and-a-bit years to decide that a public housing tenant shouldn’t be turfed out of his home.
It took 219 paragraphs, involved an avalanche of citations and traversed the legal landscape from tenancy law, administrative law, rights of appeal and certiorari.
The ACT bar complained to the local attorney general in 2012 about Roughsgagger’s untimely judgment delivery and he referred to that in his farewell speech, saying it had a “devastating” personal impact on him.
There are several outstanding judgments at the time of his departure and those are also a matter of “great personal regret”. He plans to complete them asap.
Columnist Artemus Jones late last year in Justinian wrote:
“Over last 15 years the ACT jurisdiction has declined dramatically. It is now a parochial jurisdiction characterised by poor quality judgments delivered after interminable delays (amounting in some cases to years). Justice Heydon aptly described the decline in Aon Risk v The ANU when he referred to the ‘drowsy procrastination’ of the ACT courts.
Litigants have been the primary victims of this decline.”
The prize for the most eccentrically named law firm must go to Jesus’ Advocacy International of 3 Spring Street, Sydney (“virtual office”) – a franchise of Christie’s Advocacy International.
Robert Christie is the principal and he says his commitment is to provide legal services “in the spirit of the Lord Jesus Christ; and to withstand its provision in any other spirit”.
The firm realises that not everyone seeking its services will be “fully matured people of faith”, but that service will be given with “patient suffering, but also warning”!
“Jesus’ Advocacy International will exercise loving kindness, judgment and righteousness.” It is possible that “distasteful injustice” might still occur, even if JAI is involved.
Languages spoken at the firm are English, Amharic, Fijian, Russian and Ukrainian.
Fortunately, Mr Christie has produced a video which explains what he’s on about:
Justice Lucy McCallum of the NSW Supremes also deserves a prize, for her deft handling of a habeas corpus application that came before her last month from another godly person.
Not all judges handle nutty applications with such aplomb. Essentially, HH was faced with whether it is reasonably arguable that the possession of cannabis is an offence known to law, or whether the criminal law can prohibit conduct approved by God – the cannabis plants actually having been supplied by God.
The application was brought on behalf of Adrian Ashley of the House of Cooper who was represented by Keith Charles of the House of Haffey (not a lawyer).
The petitioner Charles objected when the judge called him “Mr Charles”, claiming that “Mister” is a military title and he is not in the military.
Adrian was apparently being held by the coppers and had been arrested for conduct that is incapable of amounting to an offence.
He was charged after being found in possession of cannabis, but the petitioner cited Genesis 1:29 of the King James Bible, 1611:
“And God said, Behold, I have given you every herb bearing seed, which is upon the face of the earth, and every tree, in which is the fruit of a tree yielding seed; to you it shall be for meat.”
In other words, God is supplying cannabis for nutritional rather than recreational purposes.
His belief is that the King James Bible of 1611 is the supreme law and the applicant is not bound by or accepts the benefits and privileges of any foreign state – although, as the judge points out:
“It was not explained how, consistently with that position, he can invoke the jurisdiction of this court.”
McCallum said habeas corpus was not available in this situation and urged him to look at the Bail Act.
“Any such application is likely to be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.”
It’s amazing that lawyers are still getting into strife over stat decs. Poor old Garry Huggett of Jindabyne in the snow country has had to wear a finding of professional misconduct because he forgot about s.34 of the Oaths Act.
He was acting for a Sydney couple, David and June Forbes, who wanted to subdivide their land at Crackenback and needed a replacement certificate of title.
I, Garry John Huggett, a solicitor certify the following matters concerning the making of this statutory declaration by the person who made it:
Along with his letter and the two stat decs he enclosed a pen and and post-it note with a handwritten message:
“Pls sign the stat dec in the market places. I will witness your signature when you return them & complete all the balance details. Please send the same pen back.”
Steve Forbes, the landowners’ son, lived at Crackenback and was handling the subdivision for his parents.
Huggett, 64, was employed by Last & Maxwell of Cooma, working at their Jindabyne office. He graduated in law in 1984 at the age of 31 but was only admitted to practice in October 2005.
Four days after sending the letter and instructions to the Forbeses in Sydney he resigned from Last & Maxwell and along with two others from the same firm opened a new law shop called Alpine Law.
The signed stat decs having gone back to Last & Maxwell, he was reported to the Bureau de Spank in February last year.
Huggett contended that he should only be found guilty of unsatisfactory professional conduct, that he should not be ordered to pay costs or a fine and he opposed being sent off for ethics classes.
He came up with various explanations, including that he expected Steve Forbes to take the documents to his parents and drive them to a handy JP.
He explained he was under pressure – he was busy settling up his new law shop and Steve wanted to get cracking with the subdivision.
NSW CAT said it found the solicitor’s evidence unsatisfactory.
He should have included in a covering latter instructions as to how the documents were to be signed and witnessed.
“He did not satisfy us that he had a conscientious commitment to strict observance of witnessing obligations at the time of these events.”
These are “grave matters” resulting in orders for professional reeducation in ethics, a fine of $2,500, costs, a reprimand and a finding of professional misconduct.
This is what happens when there’s too much fresh, mountain air.