Last night (Thurs. Feb, 12) the editor rang Dr Ian Spry at his Toorak home to ask whether the letters attacking Justices French, Gummow and Hayne of the High Court, and which have been whizzing around the Sydney and Melbourne bars, were actually written by him.
This is how the conversation went:
Ed: Mr Spry?
Ed: My name is Ackland. I’m a law journalist from Sydney. Someone has sent me copies of letters you have written to Justices French and Hayne. The letters indicate they were written by you.
Ed: I want to confirm that these are your letters.
Ed: I hear silence. Does that mean ‘yes’ or ‘no’?
Ed: All right. I will take the silence as confirmation they are your letters.
End of “conversation”.
Spry came second last December in a High Court struggle over the assets of a family trust.
The reasons of Justice Steven Strickland of the Family Court were upheld and Spry was ordered to pay Mrs Spry $2.2 mill.
Justices French, Gummow, Hayne and Kiefel were in the majority and Dyce Heydon was the odd person out.
Essentially, it was decided that the assets of a family trust established before marriage could be taken into account in property settlement orders under the Family Law Act.
You can read a neat summary of the issues and findings HERE and the full High Court judgment HERE.
The defeat was all too much for the retired Melbourne silk.
He blasted off letters to Hayne and French disputing their thinking and rearguing his case.
In the process Spry made some unnecessary and offensive personal observations, which we’ve removed in the interests of keeping the straw roof over our heads.
In short, he claims that personal attributes of the judges influenced their reasons.
Much of the vituperation is grounded in ancient equity feuds between the Sydney and Melbourne bars.
Spry and Gummow have crossed swords before. The former ASIO boss’ son also would have regarded Hayne as a junior upstart at the Melbourne grill.
His angst speaks for itself.
Townhouse 3, 3 Wallace Avenue,
Tookak, Victoria 3142
5 January 2009
Dear Mr. Hayne,
The judgments given in relation to my family last month were a surprise to all parties and some comments are necessary.
I was, as you know, an associate to Sir Owen Dixon, who was a courteous judge, with unchallenged integrity. The contrast with the joint judgment of Mr. Gummow and yourself is startling. Mr. Gummow has of course been inimical to me, but I expected wrongly that he would put his personal feelings aside and behave with integrity. In fact the joint judgment demonstrates a lack of integrity and, of course, a lack of intellectual probity. To hold that Strickland J. was entitled in include interests of the parties owned at earlier times was astonishing, and much of the reasoning relating to trust interests is a matter of which you should be ashamed.
I refer also to your court manner. Members of the Bar speak of you always as being notoriously offensive to a high degree. I am told that no-one complains, lest his future clients should be prejudiced by hostility on your part. Your behaviour at the hearing of our case bore out these complaints fully. Your were grossly impolite to counsel, adopted a sneering manner, made strange faces which would not be expected of a normal person, and make comments that were regrettable. You noted as a somewhat grosser supporter of Mr. Gummow (you were described to me as “listening to him with awe, as though he were a god”), taking up his ideas and asking questions that, if I may be frank, cast doubts upon your suitability as a judge.
When I was Chairman of the Bar Superannuation Fund you were a fellow trustee, and you were distinguished by a lack of useful suggestions and a desire to protect yourself at all costs, regardless of the interests of members. Clearly you saw the office merely as a step towards your advancement. In facing other barristers you were timorous to a high degree at the Bar, making safe comments in the absence of those whom you criticised… [%$#*&^@!]
Dr. I.C.F. Spry, Q.C.
* * *
Townhouse 3, 3 Wallace Avenue,
Tookak, Victoria 3142
5 January 2009
Re Spry and Kennon
Dear Mr. French,
I am writing in regard to the judgments in these matters delivered on 3 December 2008.
I note by way of background that the trial judge, who manifested substantial antipathy towards me, stated correctly that I had provided Mrs. Spry with $2.53 million and about half of this amount for each of the children directly and indirectly, and that I had retained $1.79 million for myself. The 1998 instrument merely effectuated Mrs. Spry’s repeated concessions that she and I would not receive any trust capital, which would go entirely to the children (AB 224, 226, 232, 239). The 2002 dispositions were effectuated only after Mrs. Spry indicated that she would take steps as soon as possible which would remove herself as a trust beneficiary.
I should note also that in the sixth edition of my work on equitable remedies I observed that “undue influence has perhaps been accorded the somewhat eccentric views of Justice Gummow”, and in the seventh edition I observed that particular comments by Messrs. Gummow and Hayne “cannot be supported on any reasonable basis”, and said that their curious attribution of Lord Diplock of a meaning that he would have found bizarre did no credit to the High Court.
During the recent hearings of my appeals Justice Gummow persistently leered triumphantly at me.
The appeals arose largely in consequence of advice that I had received from many family law quarters and senior counsel that s.79 refers (not surprisingly) to property of the parties or either of them at the time of the hearing, not at some prior time. This must be correct on ordinary principles of construction: and see the settled Family Law Court practice supported by Candish and Prath, Warne and Martin. Curiously, Messrs. Gummow and Hayne went out of their way to depart from this view: paragraph 128. They asserted that s.4(2) and s.79(1B) and (1C) required a different conclusion. However s.4(2) is merely a drafting provision in regard to the parties themselves, and does not require property to be taken into account otherwise than at the hearing; and s.79(1B) and (1C) (which merely make provision in regard to part of the courts’ general powers of adjournment: see Emmett) obviously do not necessitate the abandonment of the clear general analysis whereby only property at the time of the hearing can be taken into account. (In appropriate cases s.106(B) may here be applicable). Messrs. Gummow and Hayne were in these regards clearly in error. But Messrs. Gummow and Hayne went further. Even if Mrs. Spry had remained a beneficiary her sole property would have been a right of administration. Messrs. Gummow and Hayne held however that because the relevant power permitted appointment of the whole of the Trust fund to her absolutely, the value of the entire trust property should be treated as assets of the parties or one of them. It need hardly be said that this is contrary to basic legal principles. It is astonishing that it was enunciated by two High Court justices. The only reasonable explanation is that theses two justices wished to reach a result and cared little how they did so.
As to your own judgment, which depends on a novel concept of “property”, I note that the definition of “property” in s.41(1) expressly depends upon the ordinary, legally accepted concept of property. Your own views express a gloss that is contrary to the statute (and, I should add, also contrary to the long accepted understanding of that statute).
This raised the question, what moral right do you (and I include Messrs. Gummow and Hayne) have to change the law substantially, merely because you believe that you can “improve” it? Prior to your appointment you were an ordinary member of the Federal Court without training or experience in legislation. Mr. Hayne is notorious amongst the profession for his rudeness to counsel and for his curious comments, hardly a pre-requisite for altering legislation… [#@%$&*#[email protected]!] Again, does this assist his “legislative” judgment on family law matters. You yourself were obviously influenced by Mr. Gummow, who is thought to customarily dominate Mr. Hayne, and perhaps you had personal reasons for extending Family Court powers in favour of women and against children. In either event, does this provide a qualification or assist your “legislative” judgment on family law matters? None of you have been elected as a legislator. None of you has interacted with an electorate or has experience in legislating. You do no have committees or public servants to advise you, or access to multi-organ public opinion, but as judges you lead sequestered lives. You have no training or capacity in legislating or amending the existing law, nor do you have any moral right to do so.
The Parliament has on recent occasions considered s.79, and chose not to amend it in any relevant respects.
You have extended the Family Court’s powers so as to assist Mrs. Spry… [#&^*%@#!] If you were a legislator, some might perhaps agree with your views on the relevant statutory provisions. Others would certainly not agree. And apart for the general difficulties with your views (which you have attempted to present as statements of the existing law, whereas in fact they represent radical changes), you have caused damage to litigants who were entitled to believe that the law would be conscientiously adhered to by you.
I was associate to Sir Owen Dixon, who as well as being probably Australia’s greatest judge was a model of ethical propriety. He would have been highly dismayed both by the reasoning of the court in these matters and by the justices’ allowing personal considerations to affect their decisions.
I would add that I would not have written this letter if the opinions set out in it were merely mine. But senior members of the Bar etc. to whom I have spoken all find the majority’s conclusions and reasoning highly unsatisfactory.
Dr. I.C.F. Spry, Q.C.