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Court in the Act
13 May, 2005  
Was Hunt's demolition of Dowd unfair?

David Hunt, doing a stint on the NSW appeal court, tore strips off poor John Dowd for being a bit slow and muddled in a recent judgment. But really and truly, was the delay so “inordinate” as to constitute “operative” delay and a retrial?

imageFrom Ginger Snatch
Judges’ Associate

On my floor in the Supreme Court building one of life’s small terrors is to be trapped back late with a mountain of transcribing (aka scissoring and pasting). Inevitably a cabal of judges, who well and truly have taken the edge of their day with a particularly plain sav blanc, will insist that I join them for the dread long haul.

“What do you think of Hunt’s judgement about Dowd?” I’m asked before I can get my face into the vino. It was more of a challenge than a question. Of course, it had been the talk of the place for weeks, and just as I’m working out which way the wind is blowing on this issue one lardy member of the fraternity barges in: “It’s a bloody disgrace. So typical of Hunt being bitchy.”

Clearly, the little assembly was angrily in Dowdie’s corner and right at that moment it’s where I wanted to be too.

John Dowd had retired last August, shortly after the full weight of his pension kicked in.

Thin Roger Giles and John Bryson agreeing with Acting Justice David Hunty-Wunty, fresh from the UN’s Yugoslav War Crimes Tribunal in The Hague, brought down their findings last month in Monie v The Commonwealth of Australia.

This was the case in which a farmer, Peter Monie, sued for damages because the Commonwealth Employment Service sent along a farm worker who ended up shooting and injuring him. His wife and son sued for nervous shock. The shooter had 43 priors for dishonesty, violence and other difficulties with the law. He’s eligible for parole later this year.

A new trial of all the issues in Monie v The Commonwealth was ordered after a finding that Dowdie’s 17-month judgment-writing gestation period was “inordinate” and that there had been a “substantial miscarriage of justice”.

Hunty added with a flourish that the delay was “destructive to the quality of the judgment and:

“No confidence can be placed on the judge’s findings of fact or rulings of law in relation to at least two principal ways in which the plaintiff’s case on liability was put ”

They were the duty of care issue (Dowd found there wasn’t one owed by the CES) and a conversation between the CES and Monie’s son about the criteria for the job on the farm (Dowd criticised the witness’ credit and rejected his evidence that the conversation took place).

One of the factors relied on by the trial judge was that the shooter told son Monie that he’d been in strife with the law and was not long out of the nick. This information, the judge said, broke the chain of causation. Further the judge was not satisfied that the CES knew of the worker’s convictions.

What was so upsetting in the witching hours of judges’ chambers is that, quite apart from its vehemence, Hunt’s attack seemed personally directed. An assault of that force simply should not have been delivered publicly.

Maybe the appeal bench thought that since Gentle John had shuffled off to retirement there was no harm giving him a big whack – certainly they didn’t have to look him in the face again.

Hunty-Wunty and Dowdie were not exactly unfamiliar with each other, having served side by side as NSW Law Reform Commissioners on the sentencing reference.

However, I can assure you that the taste left in the mouths of serving judges is unpleasant. There are mumblings about undermining respect for the judiciary and who might be next for this sort of ad hominem bollocking from above.

imageHunt (seen here) said this was a case of “operative delay” and went through all the principles that applied. Thin Roger quoted from his recently delivered thinking in Krivoshev v RSPCA where he said that there are “difficulties” in determining that the passage of time amounts to operative delay. Hunt was quick to point out that Giles’ remarks were obiter.

Many judgments take up to nine months after hearing, and on that basis the “delay” in Monie more accurately might be put at eight months. Actually it can be whittled back further when you consider that four months after judgment was reserved at the end of June 2002 further written submissions were made.

In December the plaintiffs started to get agitated about “delay” i.e. two months after final written submissions.

For two bits of the period in which judgment was reserved the trial judge was on hols. He didn’t resume work till mid-2003.

None of which is to say that Dowdie wasn’t renown as a bit of a slow coach and deadline misser.

In private I pored over the offending appeal judgment to see whether Hunt had applied Yugoslav techniques to his criticism.

Is the delay “inordinate”? If we accept that six months is not unusual for a reserved Supreme Court judgment that gives us a “delay” of 11 months, minus a further four months for written submissions, which takes the delay down to seven months, minus a month for leave producing an “actual delay” of six months arguably outside the “operable” category. Yet Hunt repeatedly said the delay was 17-months.

Dowdie ended up like the panicked student trying to get over a mental block about a late essay, promising to produce and finding it harder and harder as the awful deadlines loomed.

Some sages insist that it is just as open to a fresh trial judge to reach the same conclusion, even with reasons crafted according to Hoyle.

Anyway take a look at Hunt’s painstaking deconstruction of the time line and then YOU be the judge:

“36. Dowd J reserved his judgment on 28 June 2002. Further submissions were filed on 2 August, and again on 22 October following a recent decision in the High Court which was relevant to the claims for nervous shock. According to unchallenged evidence admitted on the hearing of the appeal, the plaintiffs started in December 2002 to express concern to their solicitor, Mr Kozera, in relation to the non-delivery of judgment. Mr Kozera, following the usual procedure in such circumstances, first wrote to the Chief Judge at Common Law on 12 May 2003, asking whether some indication could be given as to when judgment would be given. As Dowd J was on leave until 10 June, Mr Kozera was informed that inquiries would be left until his return.

37. On 7 July, the judges associate informed Mr Kozera that judgment would be delivered on 15 July. On the day before judgment was to be delivered, the associate informed counsel for the plaintiffs that judgment would be delayed until 22 July. On the day before judgment was then to be delivered, Mr Kozera was again informed that the matter would not be listed. On 29 July, Mr Kozera was informed by the associate that judgment would be given on 5 August. On the day before judgment was then to be delivered, the associate informed Mr Kozera that judgment would not be given until 12 August. On 8 August, Mr Kozera was informed that judgment would not be delivered on 12 August. On 29 August, the judge spoke to counsel for the plaintiffs, apologised and said that judgment would be finished the following week. It was not given.

38. On 26 September, Mr Kozera wrote again to the Chief Judge at Common Law setting out the history to date with a request for his assistance in having judgment given. The Chief Judges associate replied, noting that Dowd J had informed the Chief Judge that he expected to deliver judgment during the week concluding 17 October. This was almost two months after it had been promised. Still no judgment was given. The failure was reported by Mr Kozera to the Chief Judge on 17 October. Advice was sought by Mr Kozera as to whether he was following the correct procedure. The Chief Judges associate replied on 21 October, after the Chief Judge had spoken to Dowd J, stating that the Chief Judge had been assured by the judge that judgment would be delivered by 29 October. In response to Mr Kozeras inquiry concerning the procedure followed, the associate said:

‘Justice Wood is sorry that there is little more that he can do to compel any judge to hand down a decision, although, as you are no doubt aware, it is always open for a complaint to be made to the Judicial Commission.’

39. No judgment was given by 29 October. On that date the associate to the Chief Judge informed Mr Kozera that Dowd J had been unable to give judgment by reason of his commitment to certain criminal proceedings. The judge was about to take two weeks leave, after which he had been given further additional time to write judgments. He had assured the Chief Judge that he would give his attention to this matter then.

40. On 6 November, Mr Kozera wrote to the Chief Justice, asking whether there was anything further that he could do. Mr Kozera explained that he and his clients were reluctant to make any formal complaint to the Judicial Commission, being under the impression that such a complaint may abort a lengthy trial without any decision having been handed down.

41. On 19 November, having that day just returned from an absence overseas, the Chief Justice informed Mr Kozera that Dowd J had told him that judgment would be delivered on 26 November. The Chief Justice added:

‘I realise that you have been given dates for delivery of judgment on earlier occasions. I expect that on this occasion you will not be disappointed.’

42. On 25 November, the judges associate informed counsel for the plaintiffs that judgment would be delivered on 28 November rather than 26 November. On the day before judgment was then to be delivered, the judges associate informed counsel for the plaintiffs that the judge was ‘putting finishing touches to his judgment’, which would now be delivered ‘sometime from 3 December’. On 2 December, the judges associate informed counsel for the plaintiffs that judgment would be delivered on 4 December at 9.30 am. On the following day, the time for the judgment to be delivered was delayed until 2.00 pm. Judgment was in fact delivered at 2.30 pm on that day. As emphasised by the appellants, this was more than seventeen months after judgment had been reserved, and there was every indication that it had been written in haste and under pressure.”

Hunt ordered a new trial on all the issues, a decision supported by Thin Roger and Bryson.

The fulminations were not far behind. David Rofe, for the plaintiffs, told the tissues that Dowd should be called “to account”. Precisely what form this should take was not stated. Rofe insisted that he’s never seen anything like it in 50 years at the Grill.

The Weekend Australian, one of the Dirty Digger’s sheets, banged on and on in a preposterous self-basting editorial:

“Invariably it’s left to the media to reveal judicial failing Yet media scrutiny of judicial behaviour is vital because the judiciary is doing a poor job of scrutinising its own. If more judges were as critical as Hunt, the media might be less inclined to pick up the slack.”

Spare us, please.

Kirby denounces analogies, metaphors and similes

Room for just one more thing.

Did you catch Michael Kirby’s spraylet in the recent High Court decision of Commissioner of Tax v Linter Textiles Aust (in liq)? (Smiler, McHuge, Gummo, Kirbster, Payne, The Tub and Dice Man).

It was a riveting case about carry forward losses in which the High Court reversed an ancient principle and found that when a company goes into liquidation it remains the beneficial owner of its property.

Kirby dissented with this shaft in the direction of the majority:

“The introduction of analogies, taken from the law of trusts, which occasions the attempt, in the joint reasons in this court, to distinguish this settled line of authority on this aspect of revenue law in the United Kingdom, is, with respect, a forensic red-herring. It appears to have been introduced into these proceedings in a not unfamiliar reaction to keep the Australian waters of equity and trust law unsullied by foreign and supposedly deleterious intrusions, even where (as here) the intrusions originated in the country from which the law of equity and trusts itself derives. I have no sympathy for such parochial inflexibilities.

“Only an elaborate reasoning, founded on metaphors, similes and analogical references (and based on a somewhat parochial antipodean inflexibility concerning the law of trusts), could persuade this court to impose, on similar Australian statutory language, a construction opposite to that which has been followed for one and a quarter centuries in the United Kingdom.”

I’d just thought I’d share that with you.

xx Ginger