Trial Judge’s “Unwillingness” to Discharge Judicial Function

In Smart Education Program Pty Ltd (In Liquidation) & Ors v CLGC Australia Pty Ltd & Ors [2023] FCA 826 (21 July 2023), Jackman J of the Federal Court – following the trial judge, Farrell J, announcing retirement but that she would not deliver a judgment then outstanding for two years – made the following observations pertaining to that unusual scenario, and the impact of it upon the court’s ability to give a costs certificate in consequence:

[1]  These proceedings were heard by Farrell J on 12, 13, 14, 15, 16 and 19 October 2020, 20 November 2020, and 9 and 23 December 2020, a period of nine days. The references in that sentence to “2020” are not a misprint. Farrell J began the trial by complaining about the timeliness with which the evidence had come to her: T4.5–6. During the trial, Farrell J was understandably keen to keep the hearing on schedule: T193.43–194.12. Her Honour was particularly censorious of the plaintiffs’ key witness, the third plaintiff, for making the Court wait, and reminded him of his duties to the Court, and that “punctuality is expected. It costs a lot for all of these people to sit around waiting for you” (for which the third plaintiff apologised): T199.32–46. That was all relatively unexceptional, and, for the most part, appropriate. Regrettably, Farrell J has not delivered judgment. The delay in giving judgment is all the more glaring in light of the fact that Farrell J made freezing orders against the first and second defendants on 27 September 2017, which were subsequently varied but remain in place.

[2]  Despite the period of two and a half years without giving judgment, Farrell J has indicated that in view of her impending resignation from the Court, which the Governor-General has accepted and which is to be effective on 1 August 2023, she will not be giving reasons for judgment or making any orders in the proceedings. The Chief Justice has re-allocated the proceedings to me for that purpose. The evidence comprises about twenty affidavits, about ten volumes of documents and almost six hundred pages of transcript. I have read and analysed that material, and have done so bearing in mind that, unlike Farrell J, I have not had the advantage of having seen and heard the witnesses in person.

[3]  On 30 June 2023, the Chief Justice wrote to the parties advising them of the re-allocation, and suggested that they may wish to raise with me the making of orders and the granting of a certificate under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth). That section provides relevantly in s 10(2):

Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

Subsection 10(4) provides that such a certificate states that in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.

[4]  I have communicated to the parties my view that any application for the grant of such a certificate would be problematic in the present case. I now give my reasons for that conclusion. Her Honour has resigned her office, but the resignation will not be effective until 1 August 2023. As far as the evidence indicates, Farrell J has not suffered a protracted illness or otherwise become unable to continue with, or to give judgment in, the proceedings. I am not aware of any medical evidence to that effect. There was a reference by Farrell J during the hearing on 16 October 2020 to a doctor’s appointment at 8.30am on 19 October 2020, but the transcript indicates that no impediment arose for the continuation of the trial that day (T372.9–373.11), or on subsequent days. The problem does not appear from the evidence to be one of inability, to which s 10(2) is directed, except perhaps in a euphemistic sense of “inability”. Rather, the problem seems to be one of unwillingness to discharge the judicial function of giving judgment in the proceedings. If it is not possible to make findings upon which the grant of a certificate under s 10 depends, no party can receive costs under the section: Foody v Horewood [2000] FCA 37; (2000) 96 FCR 386 at [4] (Finkelstein J).

[5]  The reallocation of the matter to me was made on 30 June 2023, the day after I was asked whether I would accept the reallocation. I have sought to prepare this judgment as expeditiously as possible, given the delays which the parties have patiently borne to date. It is a task which I have undertaken in the time available to me after dealing with what was already a full load of matters for hearing and judgment. While Farrell J is not one to rush to judgment, the evidence does not indicate any acceptable reason why her Honour could not have given judgment by 1 August 2023, even if her Honour did not begin the task until 30 June 2023.

[6]  There is a further reason why s 10(2) is not applicable, in that the proceedings have not been rendered “abortive”. I am able to give judgment disposing of the claims made in the proceedings, being the only remaining step to be taken in the proceedings. I have noted in these reasons the issues which I have not been able to resolve satisfactorily in the absence of having seen and heard the evidence being given. However, as my reasons demonstrate, the resolution of those issues was not necessary in order to resolve the claims which have been made.

[7]  Even if I had been of the view that s 10(2) was applicable, I would not have exercised the discretion in favour of granting a costs certificate. The parties have fought a lengthy forensic battle, and deserve to have judgment delivered. No further financial demands will be placed on the Commonwealth if the Court exercises its functions in that way.

[8]  The Chief Justice has apologised in correspondence to the parties and their legal representatives on behalf of the Court for this situation. I wish to add my own apology for what has transpired.

…

(emphasis added)

A link to the case can be found here.