Hell’s bells
Justice John Logan RFD, of the Federal Court, twice used the word “hell” in a judgment dealing with an appeal from a finding of Judge Julia Baird of the FCFC in an industrial case.
Logan commenced his reasons saying:
“This appeal … offers a small business life example of the accuracy of the aphorism, ‘The road to Hell is paved with good intentions’.”
Matthew Tancred and his partner Kellie Nagel claimed to be employees of Stuart Hallam’s business and brought proceedings in the Circuit Court alleging contraventions of the Fair Work Act.
The proceedings were instituted in May 2018. After a leisurely two years of interlocutory steps and failed mediations, a trial date was set for March 2020.
Covid derailed the date which was reset for five days commencing on November 16, 2020. There was a further one day hearing on February 19, 2021 and almost 18 months later supplementary written submissions turned up on July 27, 2022.
Another 13 months further down the track, on August 23, 2023, Judge Baird delivered a judgment in respect of liability.
Hallam appealed and in April 2024 it was redocketed to Justice Logan and heard on May 3, 2024, with judgment on July 31, 2024.
Awaiting the outcome of the appeal and pending in the Circus Court are the penalty orders to be made in respect of Baird’s findings of contraventions of the Fair Work Act.
At para 13, Logan mentioned “hell” again:
“So it is that the better part of 7 years after a parting of the ways between Mr Hallam and related entities on the one hand and Mr Tancred and Ms Nagel on the other, and over 6 years since Commonwealth judicial power was first invoked, none of the parties as yet has closure and, depending on the fate of this purported appeal, may yet not have closure. Irrespective of the fate of this appeal, that, surely, is a form of Hell for each of the parties.”
Judge Julia has already been an entrant for our Slumbering Snails award.
Certainly, the “hell” endured for the respondents, Tancred and Nagel. Logan overturned Baird’s findings that they were employees and, in the process. dismissed the pending penalty hearing.
Riparian wrongs
Sandy Groper from Perth has been sending messages down the wire about slow and botched cases.
There is no better place to start than with WA Supremo Jenni Hill and her decision on July 26, 2024 in Crossley v English [No 2] that required 18 months of cogitation.
This is a moderately speedy turnaround for Justice Jenni, compared with more than two-years-and-four months in Nguyen v Nguyen Huynh.
“The hearing of this matter took place in February 2020. It has not been possible to complete the reasons for my decision as quickly as I would have liked.”
It’s a heartening reminder that judges are able to perform essential tasks when they “would have liked’.
The same boilerplate explanation turned up in her Crossley decision:
“The hearing of this matter took place in October 2022 and January 2023. Regrettably, it has not been possible to finalise my reasons for decision as quickly as I would have liked.”
However, we’re assured she made notes and refreshed herself with the transcript.
She grappled with a dispute about dams on an upstream rural property interfering with the flow of water to a downstream property.
In a 18 months at her disposal she found an interesting quote for the opening paragraph:
“In 1995, former World Bank vice president Dr Ismail Serageldin commented that ‘[i]f the wars of this century were fought over oil, the wars of the next century will be fought over water’.”
It took 114 pages for Justice Hill to untangle the riparian rights and to dismiss the claims of the affected parties downstream, William and Patricia Crossley, and find for the dam builder upstream, Paul English.
In due course …
HH Justice Fiannaca: “regrettable”
More than two-years-and-two-months ago Justice Bruno Fiannaca conducted a periodic review of the continuing detention of a dangerous Western Australian sex offender.
It was the eighth review of Mark Unwin’s continuing detention order and at that time HH made orders affirming the offender’s ongoing detention, with reasons to be delivered “in due course”.
The requirement is that ongoing reviews under the High Risk Serious Offenders Act should take place every two years, or as soon as practical thereafter.
It seems that the next review period came around more quickly than the delivery of Bruno’s reasons, or as HH put it:
“It is regrettable that these reasons come to be published at a time after the passage of the next review period …”
The next review is scheduled “as soon as practicable” after May 2 – which was already nearly three months before the delivery on July 24 of the delayed reasons.