By Blake O’Connor and Ugur Nedim
A controversial NSW District Court judge has been sternly rebuked by many, including his fellow judges, for reading a judgement aloud in court over a three and a half day period, rather than simply handing it down in writing.
The judge’s actions have cost the parties and taxpayers many thousands of dollars, while contributing to the already-crippling backlog of cases in the NSW District Court system, which is delaying justice and costing taxpayers around $60 million per year.
Earlier this year, Judge Garry Neilson presided over a six day negligence hearing in Wagga Wagga District Court. The case involved a dispute over liability for injuries sustained by Mr Anthony Hobbs, who was thrown off a horse while riding in a street in north Wagga Wagga.
Mr Hobbs claimed the driver of a vehicle, Holly Lee Fairall, was responsible for the incident because she was travelling at between 60 and 70km/h in a 50km/h zone and – although she was on the opposite side of the road – she breached her duty of care by failing to move to the left of the street when passing the horse.
Judge Neilson reserved his judgement after hearing all of the evidence and submissions, and called the parties to Sydney (where he was sitting) eleven days later. But rather than simply provide a copy of his written judgement to the parties, he read it aloud over 17 hours, or three and a half days in court.
The judge ultimately decided in favour of the horse rider, finding that Ms Fairall’s actions caused the horse to be startled and throw Mr Hobbs to the ground. The parties were not aware of the result until three days into the judgement.
Criticism from the bench
The decision was appealed to the NSW Court of Appeal (NSWCA), which was highly critical of Judge Neilson’s conduct. Justice Leeming of the NSWCA remarked:
“It is difficult to see how the efficient disposal of the business of the court and the efficient use of available judicial and administrative resources are promoted by oral delivery of reasons over four days… there is a public cost in taking that course, in that a courtroom and court officers and court reporters are made unavailable for the hearing of other cases… It was not until the third day that the plaintiff learned whether they won or lost”.
A controversial judge
This is not the first time Judge Nielson has attracted controversy.
In 2014, the judge was referred to the Judicial Commission of NSW for allegedly inferring that homosexuality could be compared to incest and paedophilia in so far as the former is no longer considered “unnatural” or “taboo”, and the latter may also be considered morally acceptable in due course. Among other things, the judge remarked:
“A jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now available, not having [a] sexual partner”.
He remarked that the “only reason” incest remains taboo is the high risk of genetic abnormalities, adding that “… even that falls away to an extent [because] there is such ease of contraception and readily access to abortion”.
The Judicial Commission recommended the judge no longer preside over sexual offences.