A couple of shockers from the WA Supremes where “one hand washes the drowsy procrastination of the other” (per Dicey Heydon in Aon Risk Services Australia v Australian National University).
Justice Fiona Seaward took two years to cough up interlocutory reasons in a property and money dispute, partly concerning a caveat on a property at Wedge Street, Port Hedland.
Things kicked off in 2021 with hearings in June 2024 and again on September 13, 2024. Here we are in September 2026 with the judgment hot off the press, and as HH explained the resolution of four interlocutory applications “unfortunately [has] taken longer than I originally intended”.
The convoluted drama went on for 354 paragraphs plus schedules with the result that a fresh caveat over the property was granted; some paragraphs of the statement of claim were struck out with leave to replead; and a new person was joined as a defendant.
Early this year Justice Seaward was rewarded with a promotion to the WACA.
Unhappy families
Rabbi Justice Marcus Solomon took 18 months to unscramble the property and estate omelettes concerning about eight people from the Capper family with claims and counterclaims about the ownership and disposition of farming and other assets.
Not everyone left the scene of battle with their arms and legs intact.
HH put it best in para 2, and thereafter we knew that we were in for a heavy ride:
“As is common in such cases, the dispute arises from things that were said, perceptions that emerged, and expectations that evolved over the course of many years of intergenerational family dynamics. As those perceptions and expectations developed, interests diverged and positions hardened. Familial bonds were sadly torn. I have found that, like many of these cases, no one in the family has set about to plot with dishonesty. Each family member is sincerely convinced that their position is fair and truthful. It is left to the court to wade through currents of historic records and memories and make findings on the balance of probabilities – that is, the most probable version of events. It is an imperfect and, by definition, less than certain exercise. It is regrettably not an exercise that is likely to bring resolution or harmony to a ruptured family. However, the task and function of the court is to make findings as best it can and apply the law to those findings. The repair of fractured human relationships, in matters such as these, is well beyond the court’s remit and function.Those matters must be left to others, most especially the family members themselves.”
The plaintiff appears to have suffered some serious wounds: claims in estoppel, contract and damages dismissed. Counterclaims by the defendants for account of profits up to the date of death were dismissed while counterclaims for estate’s entitlements based on 50% share from the date of death were granted.
Other relief was reserved … on it goes.
No doubt plenty of heavy lifting was required by HH, but we’re not convinced it needed a year and a half.
Christmas treat
Welcome back Judge Antoni Lucev from the Perth Registry of the Circuit Court.
Judge Lucev, a former Freehills partner, has made regular appearances in Justinian’s delays docket – see here, and here, and here, and here, and here, and here, and here is a full-throated skewing he got from the Full Feds.
His most recent effort in Charmaine Homes v Australian Carers Pty Ltd (No 4) took an industrial stretch of two-and-a-half years – two years plus is nothing unusual for Antoni.
The Fair Work case had a solitary day of hearing on March 7, 2024, with judgment and orders made on September 7, 2026.
The applicant is a lady in Adelaide who worked as a carer. HH must have thought the matter was sufficiently important to write a judgment of 271 pages, 1044 paragraphs, and 512 footnotes.
For this magnum opus, he cited 118 legal authorities and 42 sections of the Fair Work Act along with 13 other pieces of legislation.
And what happened? He found that the respondent failed to provide Ms Homes with a Fair Work Information Statement, failed to display a roster for the applicant’s ordinary working hours, and failed to record in payslips her entitlements to travel allowance, overtime, and annual leave loading.
One can only hope the two-and-a-half-year wait was worth it for the carer and her lawyers.
But it’s not over yet. Lucev has scheduled a penalty hearing on the day before Christmas Eve – via video link between the Perth and Adelaide registries.
Registry staff must be delighted at the timing.
It seems HH prefers to schedule things as close to Christmas as possible. After a hearing on February 24, 2023, he took nearly two years to strike out some paragraphs in a statement of claim and granted leave to replead.
He delivered his reasons on Christmas Eve, 2024.
The court advised us in June 2025 that Judge Lucev was making “concerted strides” to get on top of his workload.
Homes v Australian Carers Pty Ltd (No 4)
Black mark
Judge Linda Black from the WA Dizzo is back in our pages. This time the WA CA came down on her for mucking up the sentencing of Sin Yeen Kua.
Ms Kua pleaded guilty to charges relating to forgery and dodgy activities to secure home indemnity insurance certificates for work to be done by a construction company in which her partner Darian Bolton had an interest.
Judge Black sentenced her to three years and ten months’ immediate imprisonment.
Kua’s offending was committed under the influence of Bolton, and their relationship was “characterised by ’emotional manipulation, coercive control, isolation, emotional dependency, and episodes of physical violence’.”
Some of the charges against Bolton were discontinued as a result of Kua pleading guilty. She made personal restitution for the losses that were the subject of the fraud charges and “there was little more that [she] could have done to demonstrate her genuine remorse”.
The evidence of moral culpability was not challenged by the State.
Hanging Judge Black blundered by incorporating the prosecutor’s statement of material facts into her reasons, which led to factual errors in her sentencing.
Quinlan CJ said:
“On a number of occasions, this Court has stated that, save in a simple case in which the statement of material facts is very straightforward, a sentencing judge should state the salient features of the offending that provide the factual basis for the penalty and, in particular, that it is not sufficient to ‘incorporate the facts’ in sentencing remarks by reference to the facts read by the prosecutor.
Notwithstanding those statements of principle, evidently the latter practice continues.”
Also on the appeal were two foreign judges sitting as part of a judicial exchange program – Helen Bowskill, the CJ of Queensland, and Mark Livesey, president of the SA Court of Appeal, who has featured in recent dramas that played out in the Adelaide fishwraps.
Bowskill and Livesey found that Black erred in law by failing to properly address the question of a suspended sentence, instead imposing a sentence that was “plainly unjust”.
The appellant was resentenced to two years’ imprisonment suspended for 12 months.
It was only in June that Justinian had the unhappy duty to mention that Judge Black was birched by the Court of Appeal, which ordered a retrial after she refused an accused’s application for an adjournment due to an acute case of food poisoning, gastro and persistent vomiting – so much so that the court ran out of vomit bags.