It's a Dizzy world

Judges' associate Ginger Snatch hangs out in the Blue Mountains with a whole pile of Dizzo judges ... NSW Court of Appeal lashes poor wretches lower down the stare decisis food chain for poor quality reasoning ... In Queensland a costs assessor fails to "inspire confidence" … From Justinian's Archive, April 17, 2007 

Keith Mason: star turn in the mountains 

NSW Dizzo judges have returned to work with lots of mountain air in their heads after three days of solid conferencing at Leura. 

Three days! What on earth is there to talk about for three days? Usually the annual Dizzo knees-up involves two-days of jawboning, but I hear this time the government was keen for the judges to get a extra powerful earful of instruction about sex crimes, so the attorney general's people stumped up the money for the extra day. 

The long-suffering Judicial Commission funded the other two days. 

Of the 12 sessions at the Peppers Fairmont golf-spa and idyll, five were dedicated specifically to presentations on the sexual offences front - procedure, directions in sex assault cases, treatment of complainants, evidence, and sentencing options. 

By the end of the gig judges were up to pussy's bow with info about how to handle sex crimes. Maybe there should have been a session on sex sentencing to keep happy the shock-jocks and the yellow press. 

There were some long judicial faces. Why should the attorney general's hench-people set the instructional agenda for judges? 

Around the urn and plates of assorted creams there were dark mutterings about "political meddling". 

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The star turn at the Dizzo mountain corroboree was the President of the Supremes, Keef Mason.  

His job was to dab some healing balm on wounds inflicted by the Court of Appeal on certain Dizzo judges, and to remind them of the importance of providing reasons with their reasons. 

In Whalan v Kogarah Municipal Council and The Nominal Defendant v Kostic the appeal court started both judgments in the same way: 

"This is yet another appeal from the District Court that must succeed by reason of the manifest inadequacy of the trial judge's reasons. The authorities that govern judges' duties to give reasons are, or should be, permanently engraved in the minds of all judicial officers. 

"These duties are designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party. 

"Judges should be as familiar with these duties as they are with the route they travel each day to work. Unhappily, however, some still get lost." 

In Whalan, Kevin Coorey DCJ got a flea in his ear for concluding that the plaintiff suffered from a range of illness before the accident she sued on, and yet the evidence for that conclusion was wanting, or as the appeal people said, "tenuous and unsatisfactory". 

Coorey's conclusion that the plaintiff had previously suffered from ailments that she claimed arose as a result of walking into a bar that protruded from a council bus shelter significantly affected her damages. 

The appeal judges (Mason, Ipp and Tobias) said that Ms Whalan did not make the concessions about prior illnesses that Coorey asserted she made. On at least one occasion the judge's finding was contradicted by the transcript and he did not provide sufficient reasons for not believing the plaintiff. 

"The judge's finding that Ms Whalan conceded that, before the accident, she suffered from these symptoms is not only unexplained it is simply wrong. This is an important error as it goes to the heart of Ms Whalan's case ... 

"All in all, the judge's reasons did not engage with the case presented by Ms Whalan. The omission on the part of his Honour to deal with so much material evidence denied 'both the fact and the appearance of justice having been done' ...  

"The criticism of the judge contained in this judgment may be thought to be severe, but the inadequacy of reasons is not an infrequent issue in this court with respect to appeals from the District Court." 

Another troublesome bus shelter in Kogarah

And so it was that six days later the appellate brigade (Ipp, Hodgson and Campbell, with the Ippster doing all the running) was pumping out much the same message in the Kostic judgment - this time with James Black DCJ in the line of fire. 

The trial judge was accused of "making little effort to embark on the road required to discharge the judicial obligation to give reasons according to law". 

He gave undue weight to testimony from Kostic's husband and a friend about the causal connection between the plaintiff's back injury and a car accident. 

The Ippster said that an impression of a truthful demeanour was not enough to negate medical opinion. There was evidence from two doctors who testified against a casual connection between the car accident and the back pain, but this central issue occupied less than a page in Black's reasons. 

The parallels with Whalan were rubbed in. 

In both cases the assessment of damages was remitted back for rehearing as new trials. Costs went to Whalan except that her solicitors (Owen Hodge Lawyers) had to bear the expense of the blue book because the medical reports were not properly indexed. And it was not Kostic's fault that the judge lost his way to work, so she got a Suitors' Fund certificate. 

While the criticism "may be thought to be severe" in both cases, there is still room to argue that these Dizzo judges came up with damages on the strength of the cases as they saw them. It was the explanations that fell into a hole. 

Let's pray that these admonitions are not a recipe for longer, more tedious expositions from trial judges as they elaborately dress up their "reasons". 

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The incredibly well-connected Judge Susan Gibb seems to have been stuck doing civil at the Dizzo for an absolute age. 

A regular check of the daily NSW court lists shows that she has not tied a criminal case for ages. 

Could this be because of allegations about her strange quirk of insisting Crown prosecutors give their names and address when appearing in her court? 

It is also understood that Judge Susan, in an overly friendly gesture, gave a criminal jury her first name before the commencement of a trial. 

Oh to be in crime, where you don't have to churn out fully reasoned judgments. 

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McGill: a thorough birching for costs registrar

From Brisvegas comes a spanking by the Queensland District Court of senior deputy registrar (costs) Bob Houghton. Again poor quality reasons were at the heart of the vice. 

Judge John McGill was required to review a costs assessment undertaken by Uncle Bob in the tortured case of Hennessey Glass and Aluminium v Watpac Australia. 

McGill was not a happy Vegemite: 

"In conducting this review, I have applied the authorities which warn against too ready interference in the decisions of registrars conducting costs assessments ... 

"[B]ut even applying that approach it seems to me that there is a great deal in the reasons of the registrar which was wrong, or involved a wrong principle, or which produced a result which was just manifestly unreasonable. 

"Indeed, more than once I have noted that, in relation to some particular aspect of his reasons, I considered that those reasons actually reflect badly on the registrar. 

"His reasons on this reconsideration do not inspire in me the sort of confidence which traditionally courts have displayed for the work performed by taxing officers." 

Ouch.