10 July 2009
Dear Mr French,
I refer to my letter dated 5 January 2009.
That letter was widely publicized and discussed amongst the legal profession and at universities. I have been spoken to by many senior members of the profession who congratulated me, and indicated that for the sake of their clients such a letter could not have been written by them. (A former Crown law officer said that my letter was extremely good, but “the trouble was it was correct.”) As far as I am aware, the decision of your court is regarded both by members of the profession and by academics as clearly wrong, which of course it was.
For the record the following observations may be made, which identify a number of the errors made by your court.
1. Mrs. Moylan [the former Mrs Spry] ceased to be a beneficiary when the divorce became absolute in February 2003. The Family Law Act sets out a statutory scheme. Nowhere in it is the court given power to treat a divorced person as still married. The attempts by Justices Gummow and Hayne to establish the contrary were clearly made in bad faith: section 4 is irrelevant, as are cases on s.85A – type provisions which those justices must have known could not apply to s.79. The context is one where Justice Gummow was leering and smirking at me, which is highly improper for a judge. His behaviour bore out criticisms that I had earlier made of him in my writings on equity.
2. Justices Gummow and Hayne asserted that the value of Mrs, Moylan’s right to be considered (although she was only one out of many discretionary beneficiaries) was equal to the total value of the trust assets. There is no basis in the Act for this remarkable conclusion, which is contrary to long-established principles of the law of trusts, whereby discretionary beneficiaries are regarded (correctly) as having interests of merely nominal value.
3. Justices Gummow and Hayne suggested that I could approach the court to seek to have my liabilities diminished by the amount of the payment that they suggested should be made by me out of trust assets. This remarkable proposition is clearly contrary to the basic and well-established rule (see for example Vatcher v. Paull  AC 372) that a trustee must not apply trust assets for benefitting himself.
4. In any event, the trust could not make any distribution to Mrs. Moylan, who ceased to be a beneficiary in 2003.
5. Further, any such distribution, even if it could be otherwise effected by a court, would be beyond the court’s powers, since it would not be a “consequential” order based on the trial judge’s order.
6. A particularly disgraceful aspect of the Justice Gummow and Hayne judgment is that they repeated with approval erroneous assertions of the trial judge as to the four children. The trial judge asserted erroneously that the children could have prevented the legal proceedings. Of course, the children could not in any way have done so. They were merely some of a number of discretionary beneficiaries. They were not trustees, and they did not control any of the trusts. (Further, there was no legal reason why their claims as beneficiaries should be ignored. They were entitled – more that Mrs. Moylan, who had ceased to be a beneficiary – to be the objects of trustee discretion, as the Trust instrument indicated.)
7. It had not been suggested in any of the proceedings below that Mrs. Moylan was able to be regarded as a trust beneficiary. Indeed, the opposite had been impliedly conceded by very experienced family law practitioners and judges. It was improper for Justice Gummow to seek to have this matter reopened, in order to prejudice my children and myself. In any event, the reasoning in the Gummow-Hayne judgment was wrong, for reasons noted here.
8. The discretion of the trial judge had on any view mis-carried, since it was made on the wrong assumption (recognised indeed by your court as incorrect) that I could apply trust assets for my own benefit. His order was on any view inappropriate.
9. The legislature has chosen not to amend the Act to effect such essentially legislative changes as you and Justice Gummow and Hayne acted upon. As a judge, you are obliged to give force to the law, not to amend it in accordance with your partly-informed views. Justice Hayne abandoned his wife and children, and Justice Gummon has, I am informed an unusual personal life. Why indeed should such people be entitled to assume the legislature’s role of modifying family law statutes as the legislature sees fit?
10. Justice Kiefel’s construction of s.85A has been described to me as “idiosyncratic”. Certainly it is fundamentally opposed to both Australian and English authorities. Like other judges, Justice Kiefel is not able to make up law as she chooses.
The most disturbing matter about the appeals in this case is, apart from the fact that very numerous errors of law were committed, that in their various ways a number of judges deliberately disregarded their judicial oaths to apply the law. Their appointment did not give them carte blanche to apply such rules as they personally wished. They swore to apply the law, and their decisions were in obvious disregard of their oaths. It is hard to know of any more serious dereliction.
The dereliction has taken place under your chief justiceship. You were of course appointed, not on merit, but because you were a Western Australian when there was political agitation for a Western Australian appointee. You have let yourself be manipulated by Justice Gummow. The view of the profession is that the High Court is not now in terms of ability, the leading Australian court, as it should be, but that position is now occupied by the Court of Appeal in New South Wales. In particular, the carelessness and dishonesty of most of the High Court justices, under you, is a shameful spectacle.
Dr. I.C.F. Spry, Q.C.