David Hunt remembered
Monday, July 29, 2019
Justinian in Judges, Supreme Court NSW

Former NSW defamation judge and chief judge at common law dies at age 84 ... The List with Socratic case management ... Defamation exotica ... Refinement of pleadings, perhaps over-refinement ... Prodigious worker ... International criminal law ... UN criminal tribunals for Yugoslavia and Rwanda ... A league of his own ... Tributes from Graham Hryce, David Rolph, Justice Mark Ierace and Judge Judith Gibson 

 

Justice Hunt in the NSW Supreme Court in the 1980s 

Graham Hryce 

David Hunt died recently aged 84. He was the doyen of defamation lawyers.

As a barrister, Hunt’s intellect and capacity for work were prodigious.  

He acted for large media organisations, and also many plaintiffs – especially in the ACT in the 1970s, where he was instructed by Peter Hohnen and often appeared with Tom Hughes QC.

Hunt prepared detailed written submissions for cases – when this was not common practice – and regularly worked through the night. His knowledge of the law was without equal.

As a barrister, he enjoyed considerable success – although he was often bested by Clive Evatt Senior. 

Clive Junior, now deceased, used to claim he was downed in acts of revenge in numerous cases after Hunt became a judge. Notwithstanding, Clive Junior held him in high regard.  

Hunt took judicial office at a very young age. He became the defamation list judge in the NSW Supreme Court in the 1970s. In that role, he revolutionised the law of defamation, and his authoritative, well-reasoned judgments are still cited regularly today.

Hunt was appointed Chief Judge at Common Law and sat on the Court of Appeal. 

He also presided over criminal trials – most notably in the Ivan Milat trial.

Unfortunately, judges these days rarely measure up to judges of the past like David Hunt. 

Intellectually they fall demonstrably short, and in terms of dedication they are simply not in the same league. 

Vale David Hunt J.  

Grahan Hryce was a solicitor in Sydney and Canberra with an extensive defamation practice

 

Professor David Rolph 

David Hunt has a good claim to be the person who has made the largest single contribution to Australian defamation case law. 

David Hunt with his wife Margaret (SMH)Early days: David Hunt with his wife Margaret (SMH)

His output from more than two decades sitting in defamation cases in the Supreme Court of New South Wales is vast. 

Leafing through the pages of the New South Wales Law Reports from the time of his appointment, one is struck by the sheer number of Hunt’s decisions were reported. 

These are usually first instance decisions, often on the pleading points characteristic of defamation litigation. Many of those decisions still remain important and are frequently cited, on fundamental propositions of defamation law or the basis for the principled development of defamation law. 

Some prominent examples include: Hunt’s distillation of the characteristics of the “ordinary, reasonable reader” in Farquhar v Bottom [1980] 2 NSWLR 380 and Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; his treatment of the concept and the pleading of republication in Sims v Wran [1984] 1 NSWLR 317; his principled consideration of the thorny issue of when can a plaintiff rely upon subsequent publications to prove identification in Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85; and his exposition on the proper operation of the defence of contextual truth in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36.

Not every case that Hunt heard and determined would be decided in the same way today. Times do change. For instance, it may be that saying a professional footballer is fat and slow, without more, may be capable of being defamatory. 

His decision in McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 should be revisited. And not every practice should necessarily be followed. Under the Defamation Act 1974 (NSW), Hunt refined – perhaps over-refined – the art of defamation pleading.

Reading Hunt’s defamation judgments, one could not help but be impressed by the breadth and depth of his knowledge of defamation law. 

His judgments are full of wonderful morsels of defamation exotica. My personal favourite is still the reference in his judgment in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 – the case involving posters on bus shelters alleging the plaintiff was a Nazi war criminal – to a case reported only in The Times newspaper in 1954 about whether the trustees of a cemetery were liable for a defamatory imputation conveyed by a headstone.

On any analysis, in the area of defamation law, David Hunt leaves a formidable legacy, which will be felt for decades to come.

David Rolph is a professor at Sydney Law School 

 

Justice Mark Ierace 

Former Yugoslav president Slobodan Milosevic on his way into the UN War Crimes Tribunal in The HagueFormer Yugoslav president Slobodan Milosevic on his way into the UN War Crimes Tribunal in The Hague

David Hunt AO QC was elected by the UN General assembly as a judge of the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) in 1998. 

He followed Sir Ninian Stephen, who retired the year before, having served as a judge on the tribunal since its inception in 1993. 

Judge Hunt’s election coincided with a significant increase in the tribunal’s caseload. By then, over a hundred individuals had been indicted, many of whom had been arrested and transferred to The Hague. 

On May 24, 1999, at the height of the Kosovo armed conflict, Judge Hunt confirmed an indictment against then-President Slobodan Milosevic of the Federal Republic of Yugoslavia and the Republic of Serbia and issued a warrant for his arrest, on charges of Crimes against Humanity. 

The charges related to the killing of over 400 Kosovo Albanian citizens and the alleged forced deportation of another 740,000. 

The confirmation of an indictment in the ICTY was akin to the committal process in Australian criminal procedure, involving the finding of a prima facie case against the accused.

In February 2000, he was appointed the Presiding Judge of one of the three trial courts. In 2001, he was re-elected by the UN General Assembly, receiving the second-highest vote of 25 candidates for 14 positions. 

He was then assigned to the Appeals Chamber for both ICTY and the United Nations International Criminal Tribunal for Rwanda, which investigated and prosecuted those suspected of responsibility for the Rwanda genocide in 1994, ranking third in seniority after the President and Vice-President of the Appeals Chamber and Tribunals. 

Whereas many of the judges elected to the tribunals had primarily academic backgrounds with little or no judicial experience, Judge Hunt came after 22 years as a justice of the NSW Supreme Court, including seven years as Chief Judge at Common Law. 

He brought sorely-needed rigour to the tribunals’ procedures, raising the bar of expected standards of practice of prosecutors and defence counsel alike, earning him considerable respect. 

He was also respected for his vigorous adherence to principle, in a jurisdiction that, by its nature, is often subject to intense pressures. More than once he handed down a dissenting judgment as a judge of the appeals chamber that was scathing of his fellow judges’ majority decisions on a range of evidentiary and procedural issues, invariably insisting upon the overriding importance of a fair trial according to the tribunals’ statutes and customary international law. 

Judge Hunt retired as a judge of the tribunal in November 2003. His contribution to the jurisprudence of international criminal law, which is still in its fledgling stage, was significant. 

His investiture as an Officer of the Order of Australia in 2000 included an acknowledgement of his service in the areas of international law in the defence of human rights. 

Mark Ierace was a senior trial attorney for the Office of the Prosecutor of the UN ICTY between 2000 and 2004. He is now a justice of the Supreme Court of NSW 

 

Judge Judith Gibson

The national and international contributions to criminal and defamation law made by His Excellency the Hon David Anthony Hunt AO, who died on July 19, 2019, are widely acknowledged and respected. 

However, he made contributions in other areas of the law which are just as important and which deserve equal recognition. 

Jane Mathews: Hunt suggested she should succeed him as defamation list judgeJane Mathews: Hunt suggested she should succeed him as defamation list judge

The most important of these, in my view, is the revolutionary case management approach he brought to the Supreme Court Defamation List between 1979 and 1991.

David Hunt’s appointment to the Supreme Court coincided with publication of the Hon Michael Kirby AO’s “sobering picture” of defamation statistics, demonstrating delay on a Dickensian scale. 

Delay was not merely a feature of defamation litigation; as late as 1996 a despairing Judge Tony Garling published a paper acknowledging that endemic delays, sometime for up to 10–15 years, were still occurring (see para.6 Warwick Hill Pty Ltd trading as Warwick Hill Lawyers v Lovell). To today’s readers, the statistics in these reports are horrifying.

One of the problems was acknowledged, in a more than usually gloomy government report, to be the “reluctance or lack of power of judges” to take a more active role in pre-trial proceedings.

“Reluctance” was not a word in David Hunt’s vocabulary. He pioneered many of the case management methods in use today. 

In 1979, when specialist lists were non-existent, he introduced the Defamation List, which quickly put an end to the pernicious practice of “stop writs” identified by Michael Kirby. 

As Practice Notes were rarely used and still more rarely amended, he simply handed out a list of requirements described as an “Announcement”, designed to put an end to last-minute adjournment and amendment applications. 

It says a lot for his personal management skills that practitioners actually complied. 

In the pre-internet age, when access to unreported judgments from some courts “would seem to depend largely on chance” (see Valentine v Eid ((1991) 27 NSWLR 615 at 621 per Groves J), he set up a mailing list to circulate his judgments. 

And these were only some of his case management techniques.

The result was a body of consistent and concise Australian judgments, cited and followed in both Australian and overseas common law jurisdictions, and a lively List where Socratic debate was the order of the day. 

David Hunt’s case management methods were studied and admired in jurisdictions outside Australia. At the 2017 Media Law Conference, Mr Justice Warby discussed the “recent and important innovation in our High Court”, namely the Media and Communications List, noting that “active judicial case-management had become the received wisdom in Australia”, as it had more recently in the UK following the Woolf reforms. 

Warby J notes the reservations expressed by Allsop CJ of the Federal Court about the potential for judicial overreach, but clearly prefers the Hunt “hands-on” approach. I also attended this conference, and that was certainly my impression of the UK approach in our post-lecture discussions.

David Hunt’s case management methods were decades ahead of their time, but they are still challenged by more conservative thinkers today. As recently as 2015, Kiefel CJ, in her Honour’s introduction to Professor D.K. Rolph’s landmark tome, noted that some defamation experts and judges believed specialist lists (rather than online publication) were the catalyst for the complexities of defamation law. 

I hope that these views undergo reconsideration in the future. Judges today are under enormous pressure to understand and deal with a rapidly changing technology and need to adapt case management to deal with these new changes, rather than look to the past. 

Although in many ways a “black letter law” judge in the traditional model, David Hunt always saw the long term future of the principles under discussion. 

David Hunt’s modernity of approach was not limited to his activities as a judge. In 1991, at a time when women judges were still a rarity, when asked to nominate his replacement as Defamation List Judge (after he became Chief Judge at Common Law), he nominated Justice Jane Mathews. His scrupulous fairness of approach and quiet encouragement to women lawyers assisted the careers of many, including myself.  

This support applied to judges as well as to the profession. On more than one occasion, when Justice Mathews was considering a novel point during an argument in the List, she would say “I’ll get back to you on that, I have to consult the Oracle”. He also gave advice to me about the Court of Appeal that I shall never forget. 

 

love you dad. You were a great dad.
15.02.35 - 19.07.19 pic.twitter.com/9gfFSspxo6

— Pauline Pantsdown (@PPantsdown) July 19, 2019

 

His Excellency’s longstanding pride in the career of his remarkably talented son Simon (aka “Pauline Pantsdown”) was also an important part of his life, as were the services of Susan Kennedy, his associate for most of his judicial career. 

Judge Judith Gibson is the District Court of NSW’s defamation judge


First published in Justinian's sister publication, Gazette of Law & Journalism


See Simon Hunt’s obituary of his father in The Sydney Morning Herald 

 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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