After Dickens parodied how justice delayed is justice denied, there followed, in the mid 19th century, a series of groundbreaking legal reforms.
In a searing speech on Thursday evening, Federal Court of Australia judge Ian Jackman did not go so far as Dickens, who called judges “the most pestilent of hoary sinners” for their delays and clandestine ways.
Still, the Federal Court judge’s landmark address about the rule of law lifts the veil on the conduct of judges – including judges on the Federal Court. Though we do not need major law reforms on par with those from the Dickens era, reform within our modern courts is clearly needed. And that reform is within the wit of every Australian judge: to deliver their judgments in a timely fashion.
“The egregious delays by some judges in delivering reserved judgments represent a real and growing threat to the rule of law in Australia,” Jackman said on Thursday night to the Rule of Law Institute in a speech that explores what the rule of law means and why our blood boils when it is not followed – especially when those undermining the rule of law are meant to be the protectors of this most fundamental principle.
If Jackman’s rebuke of judicial delays causes the complexions of some senior Australian judges to flush with shame, then the judge will have done citizens and the courts a great service.
The rule of law includes many things, says Jackman, including laws being tolerably clear and certain, laws being prospective, not retrospective, and laws being stable so people can plan their lives.
Why timely justice matters
The rule of law also includes ensuring that citizens have access to justice. That means more than just being able to put one’s case to a judge. The rule of law means receiving a judge’s decision in a timely manner.
“Judicial delay in giving judgments constitutes a serious violation of the rule of law’s requirement for the effective and timely administration of justice by those whom the community trusts to be the rule of law’s most committed guardians,” Jackman said. “Sadly, the greatest single source of unreasonable delay in legal proceedings is typically not delay by lawyers or their clients but by judges themselves.”
The Federal Court judge mustered up images of flushing cheeks, pounding hearts and rising blood pressure as he explained that “the rule of law is to civilised society what air is to breathing”.
“Its existence is generally assumed, but its absence can be immensely destructive,” Jackman said.
The go-slow club
For some judges on the Federal Court, there is nowhere to hide because Jackman named fellow judges who have taken about 2½ years or more to deliver their decisions. Not up there with the time span of Dickens’s Jarndyce v Jarndyce, but that abomination was fictional.
Federal Court members of the nonfiction 2½-year club include Justice Kathleen Farrell who, Jackman says, “did not write a judgment at all in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd … after reserving judgment for 2½ years, and simply walked away into the contented sunset of retirement on a full judicial pension and left it for someone else to be allocated the task of doing the work.
“Even if that other judge had not been me, I would still be just as ashamed for the institution of the Federal Court.”
Justice Bernard Murphy is in the 3½-year club – and with two mentions. He handed down judgment 3½ years after hearing Southernwood v Brambles Ltd. In another case, 3½ years after the last day of hearing in November 2022, there is still no sign of a judgment.
Justice John Nicholas took two years and 9½ months to deliver judgment after an eight-day trial in Toolgen Inc v Fisher.
Justice Scott Goodman took two years and five months to deliver judgment after a 16-day trial in ASIC v Nuix Ltd. Jackman says “His Honour did have the good grace to apologise for the delay”.
Justice Lindsay Foster took just over three years to deliver judgment after a four-day trial in Masters v Lombe (in his capacity as liquidator of Babcock & Brown Ltd in liq) – although as Jackman notes, “illness may have been an extenuating circumstance”.
Justice Katrina Banks-Smith took just over two years and four months to deliver judgment after a 10-day hearing in Ezy-Fit Engineering Group Pty Ltd v Microm Nominees.
While Banks-Smith was ruminating over her judgment in that case, she was also a member of the Federal Court’s judicial education committee.
On Wednesday, Inquirer asked the Federal Court what its judicial education committee did. What, for example, does it teach judges? It was a simple question – asked three times – to a taxpayer-funded institution that exists to serve the public. Every time the court said unless we stated our “angle” it would not provide information about the role and work of the committee.
Was the Federal Court suggesting it would provide information about a public institution only if the court approved of the “angle”?
The next day, a spokesperson for the court ’fessed up, telling us the judicial education committee is responsible for designing programs for the court’s judges conferences. That wasn’t so hard, was it?
The court also told us that under section 15(1AA) of the Federal Court Act, Chief Justice Debra Mortimer must ensure that arrangements are in place to provide judges with appropriate access to judicial education. Here is a suggestion: Jackman’s speech should be mandatory reading for every judge.
Banks-Smith is also a member of the National Judicial College of Australia, chaired by ACT Chief Justice Lucy McCallum. This body’s stated role is delivering judicial education, including “judge-craft skills, social context and judicial attitudes and values”.
The judicial college should spend less time on the faff of social context and judicial attitudes and values – and teach the basics. Though it offers a course on “the art and craft of judgment writing” there is clearly a need for judges to better understand their role in upholding the rule of law, starting with the very simple rule that justice delayed is justice denied.
If the threshold of Jackman’s list of judicial dawdlers was lowered to two years, or even 18 months, Thursday night’s audience would probably not have made it home before midnight.
And consider these examples: Federal Court Justice Michael Wigney delivered judgment in April 2018 on a side issue – called an interlocutory application – 16 months after a short hearing in late 2016. Federal Court Justice Patrick O’Sullivan took over a year to deliver a judgment about security of costs on August 11, 2023 – after a one-day hearing in August 2022 in Forest Carbon Methodology Pty Ltd v Schultz.
There is no evidence either judge was deciding a difficult matter of constitutional law.
In his speech, Jackman takes aim at the Federal Court’s 2024-25 Annual Report for claiming “the court continues to perform at a high standard”.
It says 83 per cent of the 1704 judgments were delivered within three months of being reserved and 91 per cent delivered within six months.
This means, says Jackman, that in 153 cases decided during that period, the parties waited more than six months for judgment “and the reader is given no information about delays of one, two or three years, or longer”.
“I therefore dissociate myself from the court’s self-congratulation,” he said.
The high cost of delays
Perhaps judges forget the high cost of their delays to litigants. Jackman hasn’t. He says: “Apart from the cost in terms of time, money and energy, and the strain that litigation places on the parties, career and business progression are often put on hold and opportunities may be forgone. Sometimes assets are frozen or other interlocutory injunctions are in place pending the final decision.”
Jackman is not critical of practising lawyers for not raising this problem. Their job is to appear before judges, making criticism of judges impossible. Jackman says the media does a “good job of exposing the problem, but their well-justified criticism is typically (and unfairly) dismissed as based on an inadequate understanding of the judicial task”. Who then will hold the protectors of the rule of law to account for their failures?
Jackman says given there is no federal judicial commission, “that really only leaves judges themselves to expose the problem and encourage public scrutiny”.
“Public scrutiny is one of the best antidotes to complacency, and complacency almost always leads to failure,” he says.
It is possible that Jackman’s public comments reflect a profound disappointment that the Federal Court has not done more to keep its house in order.
He says he “may well be in a small minority of current judges on this issue”. But he takes solace in the words of Sir Robert Menzies, who said, during one of his 1942 Forgotten People broadcasts, “if, in the history of the last 100 years, everybody had been compelled to subscribe to what the majority thought, there would have been no progress in the world and we should have become merely a community of dumb and driven cattle”.
We are all too familiar with Australian judges falling for the cheap smell of their own self-importance, wading into politics because they believe their flavour of politics is so virtuous it deserves a public airing. Theirs is a fool’s paradise. Their antics expose them as judges who have gravely misunderstood their role.
Jackman made headlines this week for a refreshingly different reason. He did what every judge should do: explain to us what the rule of law is, why it is important, and the role of judges. The great shame is that even some form of this speech was not given by the Chief Justice of the Federal Court.
The Federal Court judge drew on medieval night-time trysts in Shakespeare’s Measure for Measure to explain how the Bard’s dark comedy about the moral virtue of the rule of law demonstrates that “the just administration of the law is impossible if judges and others who create, administer and enforce the law do not believe in what we now refer to as the rule of law, and live up to that belief in their actual conduct”.
“No one likes a judge or legislator who behaves as if he or she is above the law,” he said. “At the institutional level, trust and confidence in our institutions of government should not simply be demanded; it should be earned.”
Every judge in the country should read Jackman’s speech very carefully, then ask themselves how they, the protectors of the legal system, serve the rule of law.
Janet AlbrechtsenColumnist