Chief Justice Patrick Keane

High Court Judge Michelle Gordon was part of “an appalling judgment” said S&G CEO Andrew Grech

The newly appointed High Court of Australia judge Michelle Gordon was in 2012 accused of being part of “an appalling judgment” in a case that left thousands of sick and dying people without compensation. In the US people in the same situation were awarded a total of $4.85 billion. It is estimated that the compensation in Australia should have been in the hundreds of millions of dollars, but they received nothing thanks to Justice Gordon and 2 other Federal Court judges.

The severe criticism came from Andrew Grech who is the CEO of major law firm Slater and Gordon. Criticism of judges by lawyers is rare, so for a law firm CEO to make that sort of criticism is extremely significant. It warranted investigation at the time but even more so now given that Michelle Gordon is about to become a High Court of Australia judge.

In the in US it is standard practice for judges appointed to their highest Court, the Supreme Court of the United States, to be grilled by a committee of politicians to judge their suitability before their appointment. (Click here to read more) That is also what should happen in Australia.

Justice Gordon (51) who is currently a Federal Court of Australia judge was appointed to the High Court on Tuesday (14/4/15) (she starts on the 9th June) and will replace her husband Justice Kenneth Hayne (turns 70 on the 5th June).

The 2012 attack by Andrew Grech was in relation to the Full Court judgment in the Vioxx class action and his criticism was mostly focused on the then Chief Justice Patrick Keane who is now also a High Court judge. But given it was a Full Court appeal (3 judges) the criticism related to all 3 judges which also included Justice Annabelle Bennett.

I wrote about the Vioxx matter in 2012:

Andrew Grech went on to say “Vioxx is a very good example of a reactionary Chief Justice [Patrick Keane] not applying the law in a consistent way” and “Our problem is that since about [2000], the insurance lobby and others have been very effective in convincing governments – and judges, I might say – that they had to make it harder for people to redress … their grievances. So that has filtered its way through in what I think are some very poor judicial decisions, which have been reactionary in nature.”  (Click here to read more)

“For Andrew Grech to come out and criticise the judiciary like he has is a big call. But the situation is getting beyond repair and it will not be the last time someone in his position does.” (Click here to read the full post)

Keane is already a High Court judge and now Gordon will become one in a couple of months which will give Australia 2 fools from the same dodgy judgment sitting on the bench in the High Court.

It is without a doubt that Justice Kenneth Hayne has been lobbying the government and other High Court judges on behalf of his wife to appoint her to the High Court. So the big question the voters should be asking is: Has the Australian public received the best person for the job or the person whose spouse was best positioned to lobby the government on their behalf?

ICAC V Margaret Cunneen judgment: High Court – Wednesday 15-4-15

The High Court of Australia handed down judgment in the ICAC v Margaret Cunneen matter on Wednesday and it is a prime example why the government and legal fraternity need a compliant High Court. If Margaret Cunneen was found to be corrupt then the dam wall might crack and other government employees would also have to worry. So it was important that the High Court does its part in making sure that does not happen.

The High Court decided (4 judges to 1) that the NSW Independent Commission Against Corruption (ICAC) could not investigate whether or not NSW Crown Prosecutor Margaret Cunneen had acted corruptly. The bottom line is the High Court said that trying to mislead police is not corrupt so Cunneen cannot be investigated by ICAC. To me it is the cart before the horse. It is only after ICAC have fully investigated can they determine whether corrupt conduct has occurred. (Click here to read more)

Margaret Cunneen’s credibility is down the drain

Ms Cunneen has fought long and hard to make sure that ICAC did not hold a public inquiry into whether or not she had acted corruptly and the High Court decision makes sure ICAC will never hold an inquiry. But this has left a dark cloud over Ms Cunneen’s reputation that will never go away. Cunneen would have known this would happen so whatever she was trying to avoid by having the ICAC inquiry must have been worth it.

Margaret Cunneen says it was a frivolous and vexatious complaint by her sister Carol Cunneen that caused the ICAC inquiry. If that was true then why did she not just allow the inquiry to go ahead and clear her name? Her sister Carol Cunneen denies the allegations. (Click here to read more)

I wrote a previous post on this matter last December so I won’t repeat everything. But as I wrote then Margaret Cunneen has plenty of skeletons in her closet that cast a huge shadow over her credibility besides this case. (Click here to read the article)

While we all have a legal right to silence, Margaret Cunneen is a Crown Prosecutor and the public have the right to have only Crown Prosecutors that we have full confidence in. How can we have full confidence in Margaret Cunneen when there are so many unanswered questions? She should resign ASAP because the High Court did not find Cunneen not guilty, they just helped her dodge a likely bullet to her career called an ICAC Inquiry.

What happens from here with the High Court is disappointing. But even they are more accountable than ever in some regards with more people watching and commentating. As far as ICAC is concerned the NSW government could easily and quickly change the laws granting ICAC the power sthey should already have. Then the High Court could not stick their nose in again. The NSW government could also make the laws retrospective (backdate it) which would mean we could get to the bottom of Margaret Cunneen matter.

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18 replies »

  1. Given the history of Slater and Gordon and the Labor party I would suggest that this is a political statement about her appointment. If she was from the left, nothing would have been said. I’m sure if we go back over his and your history you will hear the bones rattling

  2. Husband retires and Wife gets the job, that looks terrible from an ethical and moral stand point considering the highest court in the land has made the decision to employ her in place of her husband. Even in the High Court its jobs for the boys or I should say job for the girl.

  3. The below article is on the SMH website this morning:

    Phone taps the source of Cunneen investigation

    “Intercepted phone calls by a multi-agency task force investigating organised crime formed the basis for the Independent Commission Against Corruption’s ill-fated investigation into senior Crown Prosecutor Margaret Cunneen, SC.”

    “With the High Court ruling on Wednesday that the ICAC did not have the power to investigate Ms Cunneen, a senior law enforcement source indicated that the Cunneen material would now be referred to another agency, likely to be the NSW police, for further consideration.”

    and: “It is not known the extent of the intercepted material which was passed on to the ICAC but publicly available information indicates that some of ICAC’s holdings relate to a car crash which happened at 6.30pm on May 31 last year.”

    Read more:

    Looks like Cunneen is in a lot of trouble.

    • I think Cunneen is in massive trouble. With this likely evidence against her & her boyfriend she has been basically caught red handed. She must resign right now.

  4. Margaret Cunneen must resign as the crown prosecutor immediately. For her to appeal to the high court and to not have her case called by the ICAC shows she has plenty to hide over this drink-driving thing. Basically she is not fit to be the crown prosecutor at all. Her reputation has been trashed. She obviously thinks that she’s above the law. Hypocritical of her when she’s the crown prosecutor prosecuting criminals.

  5. Firstly the Australian High Court should NOT be treated as the Family Business, how the hell can a High Court Judges wife (Michelle Gordon) get appointed to replace him (Kenneth Hayne), show me another country in the western world where this has happened….as they say “If it Walks like a Duck and Quacks like a Duck, its a DUCK’…!!

    Perhaps Judges should at least be Elected by votes, rather than appointed and then we would have the chance to get rid of them every 4 years or so….!!

    Secondly if a Senior Crown Prosecutor (Margaret Cunneen) is caught on tape doing what she is alleged to have done, why isn’t she at the very least … been placed immediately placed under suspension, until the matter has been fully investigated and she is either charged or cleared… !!

  6. Shane, there was a substantial conflict of interest when Grech issued that statement. S&G acted for Petersen and were set to run a class action against Merck and they got their fingers badly burnt.

    “In a statement to the Australian Stock Exchange yesterday, Slater & Gordon said the case was the most significant investment on its books in a single piece of litigation.
    The company said its maximum adverse exposure to the case was $9.8 million.”

    And why did the Court of Appeal find in favour of Merck –

    ‘A conclusion that Mr Peterson would not have had his heart attack but for the consumption of Vioxx … was a matter of conjecture rather than reasonable inference on the balance of probabilities,” the appeal judges said.
    Slater & Gordon, which took on the case against Merck in a three-month trial in 2009, yesterday said it was considering a possible High Court appeal by Mr Peterson and examining the rights of other heart attack victims in light of the judgment.
    Slater & Gordon executive director Ken Fowlie said the appeal judges had not been satisfied that Vioxx was the cause ”in a relevant legal sense” of Mr Peterson’s heart attack.

    The appeal judges upheld Justice Jessup’s ruling that it was only in 2004, that ”the state of scientific knowledge was such as to enable the discovery that the consumption of Vioxx increased the risk of heart attacks”.

    As for Justice Michelle Gordon, her appointment attracted these comments from those in her profession “outstanding, extraordinary good appointment, leading jurist, leading tax judge, meritorious”. Depending who was her competition for the appointment, she’s come out on top.,

      • The Court of Appeal judges had to consider the evidence presented in respect of Mr Petersen’s health problems at the time of his stroke and the medications he was taking – nothing more nothing less. The evidence to prove Vioxx was responsible was not there “in a relevant legal sense”.

        And why did Merck settle in the US – well it is all about money and their corporate survival with their shareholders also wanting to sue for lost billions in income. It was cheaper to go down the path of settlement to cut future losses –

        “The first Vioxx state trial returned a $235 million verdict for a Texas family after the jury deliberated for two days. While some of the award was later overturned, it was a still a big victory for the plaintiffs. At the same time, the federal MDL trials also revealed stories of personal tragedy after taking the drug. The first federal case to go to trial was the family of a 53-year-old Florida man who died of a heart attack one month after taking the drug. He took Vioxx for back pain and was in good health otherwise. While the man’s family initially won the case, it was later wholly overturned. Even though Merck won 11 of the 16 MDL test trials, which are used as a litmus test for future trial outcomes, the company decided to settle with all the claimants without admitting fault.

        The company’s shareholders were angling to sue as well, saying they lost billions because Merck deceitfully marketed Vioxx. While the eventual settlement agreement only allowed for $12 million in legal fees, Merck agreed to changes within the corporation. That included hiring a chief medical officer to monitor product marketing and safety.

        To resolve the consumer claims quickly and quietly, Merck set up a $4.85 billion settlement fund and paid nearly 35,000 complaints. The varied financial settlements to injured patients allowed for compensation in accord with injuries. Of the original 59,365 claims, about 25,000 resulted in no payment. The remaining claimants received a sliding-scale settlement based on individual injuries. Of the 20,591 heart-attack claims, which included 2,878 deaths, payments ranged from $18,000 to $1.79 million. For the 12,447 valid stroke claims, including 590 related deaths, settlements ranged from $5,000 to $820,000.”

      • You seem to have a vested interest in the matter. You do not settle for $4.85 billion “without admitting fault” because a settlement that size is in effect admitting fault.

  7. Hating to sound flippant but I have now found a way to avoid an RBT. Just feign chest pains. Thanks Margaret. These prosecutors are up with all the tricks.

  8. You might be able to write a good story on this case. Justice Gordon presided over the Court case today Burge v CBA. I sat through the entire hearing. Poor Susie Burge has not only been rail roaded by the CBA but now by Justice Gordon today who refused to allow Susie’s legal team leave to appeal to the full bench of the High Court.

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