Ohh, that judgment … ACT Law Society asks, “where are the reasons?” … Judge scrambles out of retirement to deliver another door-stopper … Profuse apologies for the loose ends … Sexual assault by law lecturer means he’s not fit and proper … In London fresh findings about drunken sex and professional misconduct 

Wonderful to see Richard Refshauge, who retired from the ACT Supremes in May 2017, back in action with another well-polished, delayed judgment. 

The case, for those who dare to tread, is Commonwealth of Australia v Davis Samuel Pty Ltd & Ors (No 12).  

The background story is that the Commonwealth took proceedings to recover funds that had been misappropriated following the origination of various business units that operated with the Department of Administrative Services.  

Hundreds of authorities and 2,400 paragraphs later, Refghauge found a number of the defendants liable to repay the Commonwealth. That was in August 2013. 

Other orders about an equitable charge over one of the defendant’s properties were made on November 21, 2014. 

There were hearing dates in the case that stretched from February 2013 to May 2016, an appeal that was rejected in June 2016 and another application to set aside the judgment that was turned down in January 2017. 

And here were are on November 20, 2020 with a further set of reasons and an explanation from his retired honour after the local Law Society started asking questions: 

I can only offer that my retirement on 11 May 2017, accompanied by a regrettable number of judgments then outstanding and a murder trial in the last months before my retirement meant that this decision was never completed. 

It was only this year when the ACT Law Society sought advice as to when it was to be delivered that I looked at the question of whether there was an outstanding decision. Despite being able to maintain that it had been resolved by the final orders, it seemed that the appropriate response was to complete a judgment as I have now done.” 

And later at 147-151, under the reading “Delay”, Roughshagger offered a familiar refrain: 

“I regret the delay in delivering this decision. When I rejected the application to set aside judgment (Commonwealth of Australia v Davis Samuel Pty Ltd (No 11)), I assumed that this was the end of the matter, since it had brought the consent orders to an end, as I have found above.

It was not until the Law Society of the ACT approached the court that I understood that this was not an assumption shared by the parties. As is clear from these reasons, the ultimate result is that the final judgment did, in fact, have this effect. It seemed that the best approach, however, was to address the issues and show the reasoning leading to that result and I have done so. 

Since there was no oral evidence, but only printed evidence and written submissions and since I had copies of the relevant transcripts of the hearings, I have carefully read the evidence, the submissions and the transcript in preparing this judgment. 

These resulted in a good recall of the proceedings and the case as presented to me. 

The delay is unfortunate and regrettable and I apologise for it. No oral or written evidence was admitted at any time during these extended proceedings of any adverse effect on the interests of any party. Accordingly, I do not think that it has, in this event, adversely affected the interests of justice for any party. I certainly hope that I am right in this conclusion.” 

Hoyle lectured in business law at the University of Canberra and was the subject of complaints from five international students – all female. 

On April 5, 2017 a jury found him guilty on eight counts of unlawful sexual activity, including two counts of rape. 

He got four years in the slammer, with a non-parole period of two-and-a-half years. 

An appeal against convictions and sentences was dismissed in September 2018. 

Hoyle used his authority to make the victims feel compromised and vulnerable. 

For instance, he showed one student pornographic images from websites and alleged that this was material she had looked at while doing an assignment. 

On another occasion he accused a student of plagiarism and then puller her towards him so that she believed he wanted to kiss her. 

With another student, also accused of plagiarism, he suggested that she could “do something” to make the accusation go away. He then proceeded to touch her on the breast. 

A few days later he continued to press the same student about what she wanted to do to prevent the plagiarism allegation being taken further – only to touch her breast and put his hand under her skirt and touch her underwear. 

At another meeting the same day with the same student she pulled down her stockings and digitally penetrated her. There were further assaults with that young student – kissing her on the lips and trying to put his tongue in her mouth. He took all his clothes off and and had intercourse with her, being reckless as to consent. 

He told another student he didn’t want her to fail and then asked for a kiss, touching her on the breast in the process. 

All this happened on the university’s premises. The ACT full court, with Gay Murrell CJ, John Burns and Michael Elkaim, said: 

“The assaults were an attempt to obtain sexual gratification from the students by taking advantage of their vulnerability as holders of temporary visas.” 

They went on to say that a criminal conviction “does not necessarily affect the status of being a fit and proper person to practise law”. 

However, someone who commits sexual offences against students could not be seen as fit and proper – whichever way you look at it. 

Hoyle’s lengthy and distinguished academic career counted for nought. 

Ryan Beckwith, a former insolvency partner at Freshfields Bruckhaus Deringer in London, overturned a decision of the Solicitors Disciplinary Tribunal which slapped him with a £235,000 fine and costs for having sex with an “intoxicated” younger colleague. 

The finding of professional misconduct occurred during the highly charged atmosphere of the #MeToo movement and in the middle of a parliamentary inquiry into workplace sexual harassment. 

Beckwith’s offending was not of the same nature or proportion as Hoyle’s. He claimed the encounter was consensual and there was no criminality involved, yet the Solicitors Regulatory Tribunal found he failed to act with integrity and to uphold public confidence in the legal profession. 

He knew that the young associate was “heavily intoxicated and that her judgment and decision-making ability was impaired”. 

The QB division of the High Court, Dame Victoria Sharp and Justice Jonathan Swift, came to Beckwith’s rescue. 

“What the appellant did affected his own reputation; but there is a qualitative distinction between conduct of that order and conduct that affects either his own reputation as a provider of legal services or the reputation of his profession.” 

Essentially the judges found that drunken sex with junior colleagues is a private matter and does not constitute professional misconduct. 

It’s good to have English judges clear up these grey areas.