Two Wigs’ tenure at the FCFCOA has seen the early departure of numerous judges who have returned to practice to supplement their meagre judicial pension ($300,000 per annum and counting).
Not content with plying a lucrative trade of earning up to $12,000 per day as mediators and arbitrators, some intrepid souls have sought to return to the rough and tumble of appearance work, including in the courts to which they were previously appointed as judges.
Cue HH Jacoba the Brasch of Division 1 of the FCFCOA in a recent decision, which the court’s publication unit has not yet sanitised for public consumption.
On her own motion, Her Honour has disqualified herself from the hearing of proceedings in which a former judge of the court sought to appear as an advocate.
Her recusal was based on an apprehension of bias, arising from counsel being a former judge of the court.
We are unable to name the poor judicial superannuant as Brash J also made an order placing him/her/them in the judicial protection program, anonymising the order and reasons for judgment.
The Queensland Bar Rules (and those of the various associations around the country) purport to provide for the time that former judges are precluded from returning to the private side of the trough from whence they came.
Notwithstanding that this former judge had sat out his time as required by the relevant rules, this was not sufficient to dispose of the matter so far as Jacoba was concerned.
Her Honour considered that such timelines are “minimum standards only” as flagged by the Australasian Institute of Judicial Administration’s Guide to Judicial Conduct.
In this case, “the proper administration of justice” fell to be determined by HH:
[27] There is to my mind, a logical connection between a former Justice of this Court appearing before this same Court and the objective apprehension. Frankly, from the perspective of the fair-minded lay observer, cognisant of all relevant facts, they might reasonably apprehend, notwithstanding the time out provision in the Bar Rules that:
(a) The husband, for whom the former Justice acts, has, to use the vernacular, “the inside running” because of his legal representative’s status as a former Justice of this Court.
[28] Or the reasonable observer may apprehend the flip side:
(b) Will the Court favour the wife so as to avoid looking like the Court is not favouring the former Justice and thus his client?
[29] Neither apprehension assists with the appearance of justice being done.
Not content with so concluding, Her Honour proceeded to refer to the “most controversial ethical issue” identified by Appleby and Blackham in their article “The Growing Imperative to Reform Ethical Regulation of Former Judges” (2018) 67(3) ICLQ 505 – the concerns regarding retired judges returning to practice while drawing the judicial pension.
However, Her Honour considered that any further skewering of judicial superannuants on such a basis could await another day.
When confronted with the question of whether the ruling meant that the former judge could not appear before any other judge of the Court, HH demurred:
[40] The former Justice submitted that if I determined to recuse myself, that I ‘find’ a judge who will and by that, I understood him to say [I find a judge] who will hear the matter. It is not for me to undertake some extra-curial poll of the other Justices of this Court. Thus, this matter may – or may not – come up again before another judge and if it does then that will be a matter entirely for them.
Unexplained in the reasons was the role played by Her Honour’s recording of the fact that the former judge was one before whom she appeared many times before her own appointment.
Perish the thought that these circumstances give rise to the settling of old scores in the wild north?