Friday, July 11, 2008


Quick runaround in legal circles to stay on the spot

Richard Ackland, smh

July 11, 2008

What must life be like for poor Morris Iemma? Does he want to stay put in bed in the morning for fear of some fresh horror unfolding?

Have all those special political skills learnt at the bosom of Graham Richardson deserted him? Wasn't being Premier meant to be loads of fun? Bob Askin got away with so much; why can't Iemma? It seems we should be feeling more sorry than gleeful when vaulting ambition is overreached. Certainly, it appears the hapless lot running the state can't take a trick. Here's a vignette about a minor matter that nonetheless reflects the general vibe of dysfunctionality.

The NSW Attorney-General, John Hatzistergos, recently announced the appointment of Wayne Haylen, a judge of the Industrial Court of NSW, to a position of part-time deputy president of the Administrative Decisions Tribunal, and head of the tribunal's legal services division.

Haylen comes from a distinctive Labor pedigree. His father was the newspaperman, playwright and federal politician Les Haylen. Wayne is, by all accounts, a capable lawyer and judge and, importantly, being from the industrial jurisdiction he doesn't have an awful lot on his judicial plate.

The tribunal has a vast and sprawling workload, hearing appeals against administrative decisions affecting just about anything, from oyster leases to sexual discrimination.

The acting District Court judge Angela Karpin had been head of the division that looked after complaints against lawyers, and she had served as a deputy president of the tribunal for one three-year terms.

It seemed a good match - Haylen could now hear complaints about lawyers and still preside over cases down at the Industrial Court and the Industrial Relations Commission. He didn't particularly even want to sit up at the tribunal's premises and so he heard his first legal discipline case at the Industrial Commission.

The trouble with the law is that there's invariably a smarty-pants, if not lurking in the wings, on centre stage. Someone looked up the law and discovered that under schedule two, part three, division three, etc, etc, of the Administrative Decisions Tribunal Act, NSW, 1997, to preside over cases involving applications to discipline lawyers you had to have a status even more exalted than that of an industrial judge. You had at least to be an acting District or Supreme Court judge.
Horror. Did that mean that the disciplinary case, already heard by Haylen, had to start again?

Happily, a Band-Aid was produced from somewhere in the Attorney-General's bottom draw, and Haylen was appointed an acting Supreme Court judge - for an unusually short period, July 3 to November 30.

One cannot imagine the Chief Justice, James Spigelman, being overjoyed that people are appointed to his court as part of a political rescue operation.

Now that Haylen magically had been legitimised, the parties to the case he heard were asked to accept that he could still deliver judgment based on material he had heard while unqualified to hear it. The parties, apparently, have said that he can deliver judgment, not on what he heard or saw in evidence before him, but on the transcripts of the proceedings.

However, just as it appeared everything might be saved, it was discovered that Angela Karpin had some unfinished judgments, but having not been reappointed as an acting District Court judge it appeared problematic that she, too, would be out of jurisdiction in the completion of her written decisions.

The Crown Solicitor was called in and advised that she could complete the judgments without the necessary judicial jurisdiction. A second opinion said she would need to be reappointed to the court. On Wednesday morning the Governor of NSW approved Karpin's appointment as an acting judge of the District Court, about a month after the Government had decided not to reappoint her.

From a retrospectively patched-up botched appointment, the Government lurched to save a mistimed judicial "sacking". Perhaps it is uncharitable to rekindle the Attorney-General's brave assurances about judicial appointments that he gave to the Herald in March:

"Greater transparency and diversity in appointments to the judiciary and senior offices in the justice system is a hallmark of good governance. That is why I have instituted a process of reform where vacancies for positions such as District Court judges, magistrates, tribunal members, public defenders and crown prosecutors are advertised. The process is open and fair. Anyone with the relevant experience can apply."

Trouble was that in the dazzle of transparency and openness only Haylen was invited to apply for the tribunal job.

Haylen, it should be recalled, was fined $20 in July 1966 for failing to produce a certificate of registration under the National Service Act. Bravely he told the court the certificate was not in existence because he had burnt it. Even more famously, in June that year he and another citizen, Barry Robinson, tackled the poet Peter Kocan to the ground outside Mosman town hall after Arthur Calwell had been shot in the chin.