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17 February, 2004  

John Cummins gets another five years of bankruptcy … Supreme Court of Yarraside feeling the hot, sticky breath of Sydney … Dubya’s Capital “C” Conservative judicial nominees … Queensland’s Crime and Misconduct Commission gives Daphnis de Jersey short-shrift

No doubt you will be as distressed as I to learn that “Gus” Cummins has had his bankruptcy extended for a further five years.

Max Prentice, who is Gus’ trustee, has taken this step because he says the bankrupt former silk didn’t fully disclose his interest in properties in his statement of affairs.

Max claims these interests were confirmed by little Ronnie Sackville in the Federal Court case fought against Mary Cummins last year.

See report

The extra five-year stint will stretch Cummins’ bankruptcy to eight years. However, he’s appealing against the trustee’s decision, just as Mary is appealing against Sackville’s decision of last September ordering her to transfer about $1.6 million to Prentice, being the value of assets her hubby transferred to her when he knew he was hugely behind with his tax.

Because both Cumminses are appealing Prentice might feel, with good reason, that there is a strategic advantage if Gus remains undischarged.

Fees and the beastly competition from Sydney were on the lips of all and sundry at the weekend conclave of the Council of the Law Institute of Victoria, held at gold encrusted Ballarat.

There was clear evidence, according to those with top-flight involvement in the commercial litigation caper, that the Sydney bar and the NSW Supreme Court were stealing work hand over fist from the languishing settlement by the Yarra – and something had to be done about it.

Precisely what can be done is a bit of a mystery, other than trying to steer clients to the Supreme Court of Yarraside, under the cool and efficient baton of Warren CJ.

Barry Lane tells me that Melbourne types are utterly puzzled why the market prefers the more expensive and quirkier possibilities on offer in Sin City.

However, word leaked out that the Warren Court is constrained by unusually awful resource strictures and in order to give greater certainty to litigants as to fixed dates for hearings, the listing of cases is to be scaled back. A terrible, but essential, trade-off.

Spigelman CJ’s speech at the opening of the NSW law term, with its wake-up cry on the costs front, also was widely ventilated in far off Ballarat.

The assembled big wigs from the council and the regional presidents were advised to download, read and inwardly digest the whole oration, in particular the CJ’s observation about the tyranny of the billable hour and the need to get away from time based charging.

See Spigelman in all his splendour

While Spigs’ “stopwatch” idea to control the time taken to run a case is all very well, those close to the Victorian court thought that the trolley loads of written submissions in arch-lever folders would defeat any discipline imposed on court-based litigation.

Again, the councillors were told, “something needs to be done”.

During the lunch adjournment and the drinking huddles, there was plenty of dark muttering from the Victorians that fees aren’t really all that high, are they?

The Supreme Court of Sydney is bragging about its you-beaut CourtLink system that will result in incredible slashing of costs, allegedly, by providing for on-line service of documents, filings, direction hearings and mentions.

And at the Warren Court, the judges are celebrating their access to the internet by turtle-paced, steam driven dial-up.

Channel Nine managed to get some extra mileage out of its preferred brief, Bruce McClintock, with footage of the busy beaver being used in the network’s 2004 News promo.

There’s Jim Waley saying how much he loves news and then a cut away to various “newsmakers” including Bruce swashbuckling down the boulevard wigged and gowned, a bundle of keen energy.

What a fine figure of a newsmaker he makes.

Did you catch the recent Vanity Fair story about some of the candidates the Bush regime has rolled out for federal judicial positions in the US of A?

They are such disturbing creatures they make Johnnie Howard’s “Capital C” Conservatives appear like quivering blancmanges.

The rigours of the Senate Judiciary Committee has managed to crush a couple of the administration’s nominees, the prime one being Miguel Estrada, who was nominated for the District of Columbia Court of Appeals and was earmarked to be the first ever Hispanic on the US Supreme Court.

The Democrats on the Judiciary Committee filibustered Estrada out of contention, and even some Republicans thought that was no bad thing. One such described Estrada as “kind of an asshole”, others said he was dogmatic, arrogant and nasty. More significantly he would have “turned the Constitution upside down”.

The funny thing is that in the US it is the conservative jurists who are the activists. Take Priscilla Owen who was elected to the Texas Supreme Court after a campaign organised by Bush’s strategic adviser, Karl (“Turd Blossom”) Rove. The administration now want her on the federal appeal court, and why wouldn’t they? She’s hugely anti-abortion, pro big business, anti-personal injury plaintiffs and she just loves the oil and gas industry.

One of her decisions which went against a boy shockingly injured by a faulty Ford car was so late in being delivered and such a hash job that that the Texas Supreme Court felt obliged to issue an apology.

Priscilla is also stuck in the system by the Democrats’ filibuster and so may have to make do with being Chief Justice of Texas, as a consolation prize.

None of these contenders get close to being as interesting as California justice Janice Rogers Brown. Bush and his gang have nominated her to the DC Circuit. One Democrat describes her as a Republican dream, ” the love child of Ayn Rand and Lyndon LaRoche” and she’s black.

She hates affirmative action, government, compassionate meddling and anyone who lacks of self-reliance and grit.

Elements of her character suggest that she could be a black Roddy Meagher. In one speech she declared:

“Where government moves in, community retreats, civil society disintegrates and our ability to control our own destinies atrophies. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.”

Like Owen she believes that the upward thrusting pistons of capitalism should be unfettered. She even expressed admiration for a 1905 decision of the Supreme Court which threw out a New York statute limiting the working hours of bakers.

Ata girl.

The investigation by the Queensland Crime and Misconduct Commission into the Hanson and Ettridge case turned out to be a wondrous waste of time and trouble.

It washed-up all as absolutely expected. No one had rorted the justice system, there was no political pressure, no denial of due process and the verdicts, sentencing and subsequent setting aside of the convictions by the Court of Appeal were all in accordance with the law.

A second report, due later this year, will concentrate on the adequacy of the Queensland DPP’s resources. Again, there won’t be any surprises as the anticipated conclusion will be that the Office of the DPP needs more money, more people, better computers, etc.

The investigation by the CMC was brought about by a resolution of the Bananaland Parliament and a reference from “Media Tart” Beattie.

That process was prompted by comments in the Court of Appeal judgment on the criminal case by Chief Justice Daphnis de Jersey to the effect that: while the experience of the appellants was painful it was all part of due process; had the appellants been represented by experienced counsel “the relevance of all the evidence would more likely have been addressed with appropriate precision”; and there is a need for a “properly resources, highly talented, top level team of prosecutors within or available to available to the Office of the Director of Public Prosecutions”.

The CMC did not sustain Daphnis’ remark that all the relevant evidence would have been more precisely addressed if only experienced counsel had been engaged. Au contraire, it said:

“In the commission’s view, Ms Hanson’s lawyer (solicitor Chris Nyst) did his level best for his client. Some lawyers might have defended Ms Hanson more ably, and some less ably. The commission does not believe it can usefully make any other observations on this matter. As for Mr Ettridge, he represented himself, showing abilities of an unusually high level for a lay advocate.”

Many of the same documents going to evidence about people being members of the party, as opposed to being members of a Hanson support group, were before the court in both the civil and the criminal trials.

It was these documents that the Court of Appeal said showed there were contracts giving rise to membership of the party (whatever may have been the contrary intentions of Hanson, Ettridge and Oldfield).

The CMC had no explanation for their relevance being overlooked in the earlier proceedings, other than to say:

“One must suspect that the mass of other written and oral evidence with which the court was confronted in these cases detracted from the impact the critical documents might have had.”

Maybe that was also why Daphnis didn’t refer to their relevance when he sat on the appeal of Justice Atkinson’s original findings that One Nation had been fraudulently registered as a political party in Queensland.

Curiously neither Pauline nor her solicitor made submissions to the CMC inquiry, nor did Bronwyn Bishop who insisted that Hanson and Ettridge were “political prisoners”.

Ettridge made a submission including affidavits from various One Nation conspiracy theorists that the criminal case was being driven by the politicians. Like most of the One Nation conspiracies, they were a pile of nonsense.

Now it appears that some of what Daphnis was on about was in the same category.