Jayne Jagot … A humble non-silk … She reached for the stars … A serious case of the smarts … Identified by Mark Dreyfus at least seven years ago … Significant judgments … High Court test in Chelmsford looming … Rarely without trousers … Theodora reports
At least that was a change from the spluttering and groans that accompanied the Coalition’s most recent elevations of Simon Steward and Jacqueline Gleeson.
Jagot had been overlooked by Coalition attorneys in favour of “reliable” people. When Mark Dreyfus, Labor’s attorney general, tested the waters the consistent recommendation from big wigs across the land was that Jayne Jagot should fill the vacancy.
Needless to say, on this occasion the opinions of wing-nuts from the IPA and the Griffith Society counted for nought.
She was already on Dreyfus’ radar when in 2015, sitting as the Administrative Appeal Tribunal, Jagot overturned a decision by a delegate of George Brandis which refused the then shadow attorney general access to Bookshelves’ diaries.
The refusal was on the ground that the time involved would “substantially and unreasonably” interfere with the performance of the AG’s functions.
As might be expected with anything coming from Brandis, this was complete nonsense and a misreading of the Freedom of Information Act.
Jagot set the decision aside and she was upheld on appeal, with Dreyfus representing himself and Brandis chalking up $50,000 in costs for the Commonwealth.
Dreyfus requested a week-by-week printout of Brandis’ diary, in order to establish that the AG had not properly consulted people in the community legal sector before the then treasurer Sloppy Joe Hockey announced swingeing budget cuts.
Media law aficionados point to the sound judgment Jagot delivered in November 2020 after eight weeks of evidence and submissions in the Chelmsford doctors case.
Doctors John Herron and John Gill were involved in the practise of Deep Sleep therapy at the Chelmsford Private Hospital in the 1960s and 1970s, which was the subject of a Royal Commission investigation in 1989 and 1990, conducted by retired judge John Slattery.
The royal commissioner found that the treatments at the hospital resulted in the deaths of at least 24 patients.
It was the scientologists who blew the whistle on what was going on at Chelmsford. Jagot found that the defamatory claims that could be made out were substantially true, and there was a defence of statutory qualified privilege.
She said that Herron and Gill were “fixated on a single objective [to] rewrite history and vindicate their conduct despite the overwhelming evidence to the contrary and the lack of any cogent evidence to support them”.
If Jagot was to be faulted on anything, it was her earlier decision to allow the trial to go ahead – dealing with events 60 years prior, where witnesses had died and memories dimmed.
It was only a matter of time before Justices Rares, Wigney and Lee, who were not on anyone’s High Court short or long list, were given the opportunity to get out their baseball bats and, one again, give responsible journalism a good whack.
By now Herron, who had been deregistered as a doctor, had died but Rares, transferring himself into his version of the “ordinary reasonable reader”, found that all the disputed imputations concerning the two doctors were conveyed. Wigney and Lee agreed.
The full court dived into the dark rabbit holes of defamation tricks, with contentions about the use of evidence from the royal commission and from dead doctors.
There was the usual hoary nonsense about qualified privilege, with the author held to be unreasonable because he didn’t ask Gill and Herron for comments – and this in a case where their side of the story was comprehensibly considered in a stonking great royal commission.
A retrial was ordered. And now the full court’s handiwork is on its way to the High Court.
Jagot is from humble origins and without tickets on herself. “Modest and shy” are adjectives frequently used to describe her. Anna Katzmann, then president of the NSW bar, said to Jagot that she guards her privacy “so tightly that even your closest friends don’t know who you are”.
She had not taken silk which in her case was an impossibility, having spent only four years at the bar before going to the NSW Land and Environment Court. In any event, being smart doesn’t require silk.
Her parents migrated to Australia from England in 1968. At her Federal Court swearing-in she said:
“Australia did not let my parents down … their good judgement was my good fortune. Through its public school and university systems Australia offered opportunities that I believe would otherwise have been inaccessible to me.”
In 1991 she joined Mallesons as a solicitor and six years later was made a partner. When she left five years later to join the bar, one of her colleagues expressed the hope that “if you must leave, then the least you can do is leave us your brain in a jar”.
Now she leaves the Federal Court, which will be poorer for her absence. At the age of 57, stretching before her are 13 years at the Saloon.
At Jagot’s Federal Court swearing in, Anna Katzmann regaled the troops with various amusements, including this one:
“Your Honour’s early practice at the bar was not all plain sailing, however. During your first venture into circuit work, your Honour managed to lose your trousers somewhere between Sydney and Bathurst.
Witnesses in an un-named town in regional New South Wales reported seeing an anxious visitor loitering outside the door of a frock shop on a Monday morning, then bursting in the door at 9.00am.
Of course, a frock shop was a most unlikely place for a woman like your Honour who has never been seen in a frock.
The attire on display was perhaps more appropriate for a Country Women’s Association afternoon tea than an appearance in court and grey suits were in short supply.
Your Honour is reported to have grabbed the only dark suit available, although it was rather ill-fitting and had to be taken in with pins. So it was that your Honour appeared that morning at court doing a passable imitation of a voodoo doll.
Capitalising on Malcolm Fraser’s memorable embarrassment in Memphis in 1986, Roy and HG created ‘the Memphis trouser half hour’. Perhaps we can now look forward to ‘the Bathurst trouser sessions’.”
At a press conference on September 29, attorney general Mark Dreyfus was interrogated by a media hack, with an Adelaide background, who wanted to know why no-one from South Australia has ever been appointed to the High Court. “Why is that state ignored?”
Dreyfus replied that the current appointment was made on merit.
The next merit appointment will be in January 2023 when it is anticipated that Stephen Gageler will be the new chief justice.
Jayne Jagot’s timeline in the law: