Slow boat up the Molonglo
Judges • Tuesday, December 18, 2012 ACT barristers complains about Justice Refshauge ... Reserved judgments piling-up ... Canberra practitioners livid at the delays ... Replacement CJ in contention ... Massive amount of weekend typing and RSI?
The torpid languor of one hand washing the drowsy procrastination of the other
CONVULSIONS have gripped the Molonglo Supremes as the local bar 'n' grill complains to Toy Town attorney general Simon Corbell about the lengthy delays affecting Justice Richard Refshauge's judgments.
Justinian has referred to this problem on numerous occasions. See:
After endless grumbling about delays the bar has finally mustered its reserves of strength and sent in an official complaint.
The local law society has reserved its position, waiting to see if things improve.
The bar's long-overdue formal grumble is likely to result in some tick-tacking between the AG and the outgoing CJ Terry Higgins, who has heard this complaint umpteen times before.
Corbell's other option is to call for a judicial commission, which can examine whether the judge is so slow as to render him unfit for office.
The latest outcry surfaced last week when Roughshagger completed a finding in favour of a former public servant suing the Commonwealth for withholding his super.
The case, along with five other similar ones, was heard by Roughshagger in 2009 and 2010 before reserving judgment.
Because of his client's ailing health with advanced prostrate cancer, solicitor Richard Faulks asked the court for an expedited decision for his client.
The judge came back on Thursday (Dec. 6) to say there would be judgment for the plaintiff but, "I'm still struggling with the quantum at the moment".
"I'm sorry it can't be more than that, it's just that the pressure of work means I haven't been able to do that.
It's unfortunate and it's a stepped approach, but it's the best I can do at the moment."
It's a familiar refrain. In Leighton v Blundell, HH handed down a judgment on August 31 last year, after he had been reserved for about 30-months.
"I sincerely regret that the busyness of the court has delayed the delivery of judgment and these reasons in this matter. Nevertheless, I have read carefully the entire transcript and the exhibits tendered at the trial as well as my contemporaneous notes. These have resulted in a good recall of the proceedings and of the witnesses giving evidence, notwithstanding the passage of time."
Again, in March last year, there was a similar footnote from the judge in his reasons for judgment in QBE Insurance v Insurance Australia:
"It is extremely regrettable that the busy workload of the court has delayed the delivery of judgment and these reasons for longer than is desirable. Nevertheless, I have carefully read the whole of the transcript and the exhibits that were tendered at the hearing as well as perusing my contemporaneous notes. I found that I had a good recall of the proceedings and the demeanour of Mr Rice as he gave evidence, notwithstanding the passage of time."
The Canberra Times reported this week that Refshauge's civil caseload includes more than 20 decisions reserved for 18 months.
A letter in The Canberra Times on December 14 from local lawyer Jennifer Saunders pointed to a criminal case in which an accused held in custody is still waiting for a verdict, even though his trial was conducted by judge alone in 2011.
The verdict was further adjourned this week when the man's lawyers sought bail.
"A judicial appointment is a serious and much-honoured appointment. Accordingly, the community pays handsomely to have the best people for the job. When is the attorney general going to tap dilatory judges on the shoulder and say, 'The emperor's got no clothes'?"
The letter didn't spell it out, but it's also understood to be referring to Refshauge.
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Chief Justice Terence Higgins: senile next April
HIGGINS CJ has been calling for the appointment for a fifth full-time judge to help get to grips with the work.
The Chief Justice becomes statutorily senile in April next year and the ACT government has been advertising for a replacement.
It has been assumed that former chief magistrate John Burns, who became a judge in July last year, would replace Higgins because he came to the court with an ability to write judgments in under two years.
He seems to be the preferred candidate over HH Hilary Penfold. Roughshagger would have to be out of contention, regardless of any ambition he might hold for the gilded slot.
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YOU'LL remember Dyse Heydon's remark about the Molonglo Supremes in Aon Risk Services v Australian National University.
"A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another."
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THE ACT still has the common law for civil claims, and this constitutes much of the court's work.
Most of the cases are specced by the lawyers, however the delays are so severe that they are waiting three or more years for their money from insurance companies and longer if there is an appeal.
The clients are even worse off and, as we've seen, some are at death's door and there's still no sign of the damages to be awarded.
So it's a haven for insurance companies who have the leverage to offer settlements at up to 50 percent discount off the going tariff.
It's a case of take the measly money or stand in the court queue.
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Refshauge: secretary claimed injury from overwork HH Justice Roughshagger is by no means a bad judge, nor is he necessarily lazy. It's just that he has trouble spitting out his work in a timely fashion. Now he's too far behind to catch-up quickly.
An indication that he's not idle can be drawn from an earlier period, when he was a partner at the local law shop Macphillamy Cummins & Gibson. As a solicitor, he indirectly made an important contribution to the law of the entire nation, see French v Phipson Nominees (Full Fed Ct, 1988).
French was Margaret French, a secretary at the firm. Phipson Nominees was Macphillamy's service company.
Margaret sued claiming she suffered from repetitive strain injury, which was an exciting new frontier of litigation in the 1980s.
Her claim was that she had excruciating working hours, sometimes even toiling for Roughshagger at the office on weekends.
For some reason there was a rift in the partnership over the litigation.
Some partners were puzzled that there was so much typing to be done, specially on weekends.
In any event, the firm lost at first instance. It hired Jeff Sher to come up from Melbourne to do the appeal in the Full Feds.
The service company won the second time around and it is thought that the judgment effectively put an end to the RSI industry.
Bravo Roughshagger.
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