Full court of the Tas Supremes lays into Duncan Kerr ... Where was the case law? ... Unmeritorious applications ... Needless grounds of appeal ... Time wasting ... Costs punishment ... Map of Tasmania
HH Duncan Kerr (left): wants to get rid of unnecessary rigidities
THOSE Taswegian Supremos sure know how to be beastly to a fellow Apple Islander, to wit HH Duncan Colquhoun Kerr, Federal Court judge and President of the Administrative Appeals Tribunal.
In 2011 Professor Kerr SC was a humble barrister plying his trade at the Van Diemen's Land bar 'n' grill.
He acted for Moira Partridge in her appeal from Justice Disco Dave Porter's assessment of damages in her personal injury case against the Hobart City Council and others.
Appeal bench, Crawford, Blow and Wood, upheld the appeal and slipped Moira an extra $73,000.
In the process they passed the odd caustic comment about some of HH Justice Prof. Kerr's submissions:
"Counsel seemed to overlook all of the case law as to the principles that must be applied by an appellate court in an appeal involving challenges to findings of fact made by a trial judge."
When it came to the decision on costs earlier this month, the appeal judges were even less respectful.
Justice Blow: clip on the ear for Dunk
Blowers, for the court, chastised Kerr for wasting time with a "totally unmeritorious application" for leave to adduce actuarial evidence.
A request, which if allowed, would have had the full court listen to an affidavit that included a 70-page annexure of statistical information.
"Substantial costs were needlessly incurred as a result of the appellant pursuing grounds of appeal that had little or no merit, and wasting time in other ways at the hearing of the appeal."
The successful argument about social security benefits was presented by junior counsel in a little under an hour.
The entire appeal ran for three days. In fact, Blowers wondered whether it was necessary to have a senior counsel at all.
"The hearing of the appeal did not proceed ideally by any means. The first couple of hours were wasted because of a totally unmeritorious application by senior counsel for the appellant for leave to adduce actuarial evidence in relation to the Consumer Price Index. The appellant pursued many grounds of appeal that involved totally unmeritorious challenges to the learned trial judge's findings of fact ...
Time was also taken up as a result of counsel for the appellant making submissions in opposition to applications by the respondents to amend their notices of cross-appeal, when there was no risk that the appellant would suffer any prejudice if leave to amend were granted."
Ouch.
In the circumstances, Justice Blow thought that solicitor/client costs were not appropriate.
He ordered the respondents to pay to the appellant 25 percent of her costs of the appeal, and all the costs of their respective cross-appeals, on a party/party basis.
The full court gave the respondents indemnity certificates, so the appeal costs fund has to stump up the money.
What makes it all the more poignant is that HH Justice Kerr is keenly aware of the need to reduce delays and costs.
In his application for the position of president of the AAT, he said this:
"I favour working within AAT to ensure that any unnecessary rigidities and adversarial processes that may have crept into the way the tribunal operates are reduced or removed ... The work of the AAT is designed to produce through fair processes the best and preferable decision that a sound administrator ought to have arrived at with the least delay in cost."
See also Ticking all the bruisers boxes