There is a matter in the ACT Supreme Court that has been awaiting judgement 4 1/2 years after the hearing. The details of the case are not important as it turns out the judge responsible, Justice Refshauge, has some 20 matters that have been awaiting his judgement for 18 months or longer and we all know the saying “Justice delayed is justice denied.”

Justice Refshauge has since been stood down from hearing further cases for six months until he hands down judgements in the 20 matters. This is extremely scandalous and Justice Refshauge should be sacked. The 4 1/2 year wait for a judgement in one matter would have to be an Australian record but is not something the ACT judicial fraternity should be proud of.

Background

In December 2012 it was reported that the ACT Bar Association wrote to the ACT Attorney-General Simon Corbell with a formal complaint against Justice Refshauge and his failure to hand down judgements in numerous matters.

“Barristers fed up with lengthy delays in the handing down of reserved judgments have taken the extraordinary step of making a formal complaint about a Canberra judge.”

“The ACT Bar Association’s complaint to Attorney-General Simon Corbell leaves the minister with just two options – dismiss it or order a judicial commission.” (Click here to read more)

On January the 18th 2013 the ACT Attorney-General Simon Corbell dismissed the complaint against Justice Refshauge and instead had requested that Chief Justice Terence Higgins “give the judge a reprieve from court work until his reserved judgments were delivered.” (Click here to read more)

Then on the 4th February it was reported “ACT Supreme Court Justice Richard Refshauge will be excused his duties for the second time in 12-months to allow him to deal with a backlog of cases awaiting judgment.”

“Attorney-General Simon Corbell will announce on Monday that retired judge John Nield will return to the territory as acting judge while Justice Refshauge takes an undisclosed amount of time away from the bench to deliver judgments on outstanding cases.” (Click here to read more)

Justice Refshauge’s handiwork (or lack of) has been putting a lot of strain on barristers, lawyers and more importantly litigants who are awaiting his judgements.

Delays have a huge impact on people’s lives. Everything from innocent people waiting in jail for judgement to people having their assets frozen for years until the judgement is handed down and lives being put on hold.

The ACT Supreme Court in Canberra is quickly becoming a national disgrace. Justice Refshauge has in effect been stood down from hearing new matters for 6 months because of his dereliction of duty.

14 year wait for justice and a 4 1/2 year wait for judgement – the great judicial shame

I only came across the Justice Refshauge scandal when the Bill Forge matter was brought to my attention this week. I spoke to Bill a couple of times and to put it mildly he not a happy man as you would expect.

The federal government took action against a company in 1999 of which Mr Forge is a shareholder because “The federal government alleged the company was at fault after $8 million of taxpayers’ funds was deposited into their bank accounts by an unauthorised transfer in 1998.”

“Shareholders beat the charges by arguing government negligence caused the transaction, but many investors had assets frozen.”

“They fought back with a $4.3 billion counter-claim, to recoup earnings they alleged they lost when the lawsuit prevented them from introducing a “lottery style” capital raising plan to Australian financial markets.” (Click here to read more)

Bill Forge and others have had their assets frozen by the Commonwealth since 1999. Justice Refshauge heard the case in 2008 for some 40 hearing days and reserved his judgement in October 2008. The assets being frozen have caused many people hardship. Bill said his marriage had broken down because of the matter and the Commonwealth has put a freeze on the settlement money of over $100,000 with his ex-wife. Bill said his ex-wife badly needs the money for a hip replacement. This is just one example of the impact delayed judgements can have on people’s lives.

Bill Forge told me he has been complaining about Justice Refshauge for the last two years and has had no luck. He has been promised a number of times that the judgement would be forthcoming and that Justice Refshauge had a month off last year to hand down the judgement which he failed to deliver. Mr Forge said the ACT Attorney-General Simon Corbell has been aware of the matter for at least two years and has done nothing and without the Bar Association complaint probably nothing still would have been done.

ACT Bar Association

I spoke to the CEO of the ACT Bar Association, Svetlana Todoroski, during the week and she said that even though complaint was dismissed it was a favourable result given Refshauge has been stood down to write the judgements in the outstanding matters. She would say little else. I said to Ms Todoroski that if Refshauge had not handed down the judgements in the outstanding matters at the end of the six months all it would have done is delay the inevitable and that he would have to resign or be sacked. She would not comment.

I said to Ms Todoroski that it had been two months and Justice Refshauge had not handed down any judgements and she suggested he had in some minor matters, but would not confirm this. She said some of the matters that he had to hand down judgements in were complex matters suggesting that he would take a while.

I did a quick check and did find one matter that Justice Refshauge handed down on the 13th February 2013 SCC No 237 of 2011 THE QUEEN V TIMOTHY GRAY How long that matter was awaiting judgment I do not know, but it has already come under attack from the Canberra website The Riot Act who say ” Justice Refshauge has shared his wisdom”  and “Is that something you’d like the Legislative Assembly to look at clearing up?” (Click here to read) This does not instill a lot of confidence for the rest of the coming judgements from Refshauge.

ACT Liberal Party

The Canberra Liberals reaction to the possible judicial commission to investigate Justice Refshauge was that it would be inappropriate. Zed Seselja is the shadow Attorney-General for the ACT and said back in December 2012 “I think the fact that we’re at a point where the Attorney-General has to choose between a judicial commission or to dismiss the complaint is unfortunate,”

”And I think it’s somewhat of the Attorney-General’s own making; these complaints have been around in an informal way for some time. He would have been aware of those.

”I think the first question he needs to answer is, when did he first became aware of these types of complaints and what did he seek to do about it?” (Click here to read more)

Mr Seselja does make valid points in that ACT Attorney-General Simon Corbell should have acted earlier. Remember Bill Forge told me that the Simon Corbell was aware of Justice Refshauge’s failure to hand down a judgment in his matter some two years ago. If Simon Corbell had of acted then, the question of the need for a judicial commission into Refshauge might never have arisen or if it did the matter would probably have been solved a long time ago.

I disagree with Mr Seselja and believe that a judicial commission should have been set up to investigate Justice Refshauge as it has got to the point of enough is enough. A judicial commission would be a better option to put the blow torch on Refshauge to hand down his judgements or sack him. He was already given time last year and failed then. So I believe the six months now quite possibly will only delay the inevitable resignation or termination of Justice Refshauge from his judicial position.

It is right that the people who have matters awaiting judgement would be back to square one and have the added cost of a new trial. But the tax payer should pay those costs and a new judge could probably hear the matters and hand down a judgement in a time frame not much longer than the six months Refshauge has to hand down the judgements. And there is no certainty that Refshauge will meet that time frame. It is also time the message was sent right through the judicial system loud and clear to all judicial officers: You will be held to account!

Other judicial officers with delayed judgements

It is worth looking at a couple of other judicial officers who had issues with delayed judgements.

Justice Foster

Justice Foster was appointed a judge of the Federal Court of Australia in June 2008 and started work as a judge in September 2008. Only 14 months later in October 2009 questions started to be raised about his lack of decisions in reserved judgments.

“When the subject of his reserved judgments was first raised with the court earlier this month, Foster had struck only one blow since joining the bench in September last year.”

“Things have improved, but there are still more than 10 judgments outstanding in this category.” (Click here to read more)

The point I want to make with Justice Foster is that matters, less than 12 months old and without a judgement, was an issue worth reporting and giving Justice Foster a hurry up which is understandable. Compare that to Justice Refshauge who has 20 matters that have been awaiting a judgement for over 18 months. Why didn’t the ACT Attorney-General Simon Corbell act earlier? And where is the national media coverage?