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4 July, 2008  
Botched ADT appointment

There was a last minute scramble to rectify a gaping deficiency in Justice Wayne Haylen’s appointment as a deputy president of the NSW Administrative Decisions Tribunal. So that the judge could hear disciplinary cases against lawyers, he had to be rescued with an emergency judicial elevation. Revised version

Why, all of a sudden and out of the blue, has Labor mate Justice Wayne Haylen, from the NSW Industrial Court/Commission, been appointed an acting judge of the Supreme Court?

imageWhat is going on?

The answer is umbilically tied to Attorney General Happy Hatzistergos’ recent appointment of Haylen as a part-time Deputy President of the Administrative Decisions Tribunal.

(Pic of Wayne with his famous Dad, Les Haylen MP.)

Haylen’s term of office at the ADT runs from June 9 and expires on June 8, 2011. He replaces acting Dizzo judge Angela Karpin as head of the legal services division of the tribunal, i.e. the Bureau de Spank.

In fact, he’s already sat on at least one legal disciplinary case.

Some smarty-pants went and looked up the law, viz: Administrative Decisions Tribunal Act, 1997, schedule 2, part 3, division 3, cl. 4, and made the awful discovery that for ADT deputy presidents to hear most categories of complaints about lawyers they had to be judges of either the Dizzo or Supreme Courts.

Wayne was neither. He’s a judge of the Industrial Court of NSW and a Deputy President of the Industrial Relations Commission.

Hence his hurried appointment on July 3 as an acting Supreme Court judge. Strangely, his term is to run to November 30, 2008 – what has the Bar ‘n’ Grill got to say about such a devastatingly short-term judgeship?

Angela Karpin and Michael Chesterman have not been reappointed as acting Dizzo judges so it is questionable whether they can continue to sit as deputy presidents of the ADT.

Karpin may have to be reappointed as an acting District Court judge in order to be able to complete her outstanding judgments.

The solicitor general is likely to be dragged in to advise on this uncertain situation.

The ungainliness doesn’t end there. By sitting on the disciplinary case under the Legal Profession Act while Haylen was out of jurisdiction there was an express danger that the whole thing would have to be reheard.

All hands went to the pump to save the situation. The acting Supremo elevation was smartly approved by the Governor in council, and the parties to the case were asked whether, in view his new and magical ex post facto legitimacy, Haylen could deliver judgment based on the transcripts of evidence.


imageThere was also a bit of a stir when the new deputy ADT prez said he wanted to work from his own premises at the IR commission. In fact, that is where he will hear legal disciplinary cases.

This misadventure in judicial selection runs counter to Happy’s (pic) declaration in March about a reformed system of appointing judges:

“Greater transparency and diversity in appointments to the judiciary and senior offices in the justice system is a hallmark of good governance. That is why I have instituted a process of reform where vacancies for positions such as district court judges, magistrates, tribunal members, public defenders and crown prosecutors are advertised. The process is open and fair. Anyone with the relevant experience can apply.”

The attorney’s PR people assure us that he did “consult” with the bar and the law society about Haylen’s appointment. But no one saw the ad.

Even though Wayne is a Labor mate he’s also a good lawyer and judge. Being at the IR commission he’s also an underemployed judge. Now he can be a little busier being an industrial judge, an acting Supreme Court judge and a deputy president of the ADT – all at the same time.

One of Justice Haylen’s claims to fame is that on June 21, 1966 he, and another young Laborite, Barry Robinson, wrestled the poet Peter Kocan to the ground outside the Mosman town hall after Arthur (Cocky) Calwell had been shot in the chin.

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