Federal Court judge Tony North accuses counsel of discourtesy ... Melbourne silk Ross Gillies to the rescue ... Extenuated argy-bargy ... You're on my docket ... Judicial preciousness? ... Silly leave application? ... Transcript heaven ... Kate Lilly reports
North: decision to appeal reflects badly on counselNERVES were edgy during a standoff last month between Justice Tony North and barrister Ross Gillies QC at the Victorian branch of the Federal Court.
North took issue with the conduct of two barristers representing a respondent, DP World Melbourne, who sought leave to appeal an interlocutory order from the judge.
Representing barristers Michael Wheelahan QC and Richard Dalton, Gillies argued HH had no right to cast aspersion on their right to appeal and no basis on which to criticise their professional conduct.
Background
In January 2014, DP terminated the employment of Mark Johnston - a straddle driver and Maritime Union of Australia delegate.
The MUA alleged Johnston was fired because of his activities as a union delegate, making the dismissal unlawful under the Fair Work Act.
DP maintained Johnston was fired as a result of alleged misconduct during an internal investigation - specifically, the harassment of a female employee.
In February, Justice North granted an interlocutory application for Johnston's temporary reinstatement at DP until the case was heard. However, HH warned:
"It must be stressed that DP or any other interested person can return to the court at any time and present an argument that Mr Johnston's reinstatement has in fact resulted in harassment, intimidation or bullying. If that is established, the court will have no hesitation in discharging the order."
Subsequently, DP sought leave to appeal the application before Justice John Middleton.
In March, several DP employees were targeted with threatening graffiti.
In April, DP returned to North and had the reinstatement order discharged.
At that hearing, North made lengthy comments on the matter before Middleton, saying it was "outrageous conduct in the circumstances" for DP's lawyers to seek an appeal instead of immediately taking the evidence back to him, as he had offered.
He said:
"This is nonsense, it reflects badly on counsel, it reflects badly on your instructors, it reflects badly on your client."
And later:
"If you had faith in the material, why, in the name of creation, didn't you come back to me and put it?"
Transcript
North J delivered a judgment in favour of DP on April 4. Before formulating the order, Gillies was heard on the matter of HH's complaints against DP's lawyers.
GILLIES: Your Honour might note the following transcript references to your Honour's criticisms. There are approximately under this head - there are 15 references which your Honour makes to the failure to come back to your Honour, if I could so call it. We don't regard it as a failure, but that's the language your Honour would endorse, perhaps I should put it neutrally, the decision not to return to you Honour ... Your Honour says at line 31:
'I mean, quite apart from my personal irritation about the course you've taken, the course being special leave to appeal, which I think is really an absurdity, frankly I understand that counsel for the applicant wasn't called on by Middleton J. I mean it's just nonsensical and extremely undermining to the administration of justice that silly special leave applications are brought just because it happens that DP World is cross with my decision.'
And your Honour observed correctly that litigants often go away cross:
'Everyone is entitled to make an application for leave to appeal if there are grounds, but where I've said plainly come back as quick as a flash and you will be heard if there is a problem then I can see no justification for the steps that your client has taken, unless, as I say, it reflects upon the material that you had about the circumstances. And that is what concerns me today, because why – why go on this unreasonable and silly course if you had grounds?' ...
GILLIES: We've got a concern that unless we give a satisfactory response to your Honour there's another sword of Damocles, namely, that your Honour will go public.
HH: No, but look, I have to. I mean ---
GILLIES: All right. Well ---
HH: --- I have criticised professional people. If that is – if I maintain a view that what they did was as I've said, then I speak through judgments of the court. I can't just go around expressing views in a transcript and allowing them to be sort of unreasoned, responded to. You know, I mean, we do this all the time, Mr Gillies. You know we hear a case ---
GILLIES: Yes.
HH: --- we hear an argument, and then we hear the other side, and then we write a judgment and all I was ---
GILLIES: But this is extraneous, your Honour.
HH: Sorry?
GILLIES: This is extraneous. This is irrelevant to your Honour's task of deciding this case.
HH: Well, except that, you know, we do have a strong proprietary interest in how the administration of justice works.
GILLIES: [That] may be so but any criticism you make of the legal professional in this particular application, the one your Honour has just given judgment on, is a different creature. It's a different case to that which your Honour decided. I know it's the same parties and it's the same forum, but it's not within your Honour's judicial power to speak pejoratively about the conduct of people ---
HH: Well I'm not ---
GILLIES: --- in another case.
North maintained the appeal was discourteous, given his express invitation for DP to return to him ...
HH: Of course I accept probably more than anybody else at the bar that there is a right to take a difficult appeal and to challenge the judiciary and to challenge decisions. I mean, the practice at the bar was based on that in those years, you know. But that's not this case. This case is where, in a line ball, I say, 'Look I am really - I don't know which side of the line this falls on, so put him back, because he's going to suffer consequences if he doesn't, but any problem, come back to the court'.
GILLIES: I understand that, your Honour.
HH: It's in those circumstances where then to go off and appeal is ---
GILLIES: Well, if your Honour says, 'Go off', they're entitled to go off and appeal. That's their right.
HH: Yes. Well ---
GILLIES: Go off doesn't mean go off and do something illegal. It means they exercise their statutory right of appeal.
HH: In a way that was discourteous.
GILLIES: But - not in a way. They served a notice. That's what happens. It's not serving a note with 'Take that, Justice North' written across the front of it. They exercise their right in a proper manner. And your Honour, as the trial judge, as I say, by making these criticisms is not only acting ultra vires, but is intruding into the appellate function. That's why we have a separate court to appeal to - or in this case, a statutory court of appeal. That's why it is. And we say that your Honour's conduct is completely erosive to the freedom of that right to appeal and entirely inappropriate that you be critical of legal advisors conscientiously advising their clients ...
HH: What I think you have to contend with - where you're resisting an apology, Mr Gillies, is what you have to contend with is the possibility that I remain of the view that this is a discourteous approach. And you might disagree with that. But at the moment you haven't persuaded me that that view is wrong.
In turn, Gillies attacked the constitutional validity of Justice North's criticisms ...
GILLIES: Jurisprudentially, your Honour, in deciding this case today is hearing a different case to the one which your Honour decided before and went on to appeal. The moment your Honour decided that case before and gave - and made the order, reinstating the workers with the explanatory note and it went on appeal your Honour was functus officio on that point.
Thereafter it was a matter for Middleton J to gauge the strength of the appeal. It was not your Honour. Your Honour had no right. Middleton J had a statutory function to decide the appeal. If he thought it was of no merit, if he thought that it was vexatious, if he thought that it was rude having regard to your Honour's efforts to please everyone and your Honour's carefully fashioned judgment, if he thought that, that was his job and not your Honour's. Your Honour is not the umpire of that dispute ...
HH: It remained with me in my docket.
GILLIES: It might be on your docket as a matter of court administration, but your Honour is being critical of not misconduct which was before your Honour today and the day before yesterday. Your Honour is being critical of what happened in respect of the matter in which your Honour is functus officio, and in respect of which was the domain of the appeal justice. Your Honour could have been hearing any case today and the day before yesterday. Your Honour, it's just a coincidental platform that your Honour happened to have the same parties before your Honour on a different application.
HH: But in my docket.
GILLIES: Yes. In your docket, but hierarchically as a matter of jurisprudence that's a different case.
[snip]
GILLIES: Your Honour has got a constitutional obligation to properly exercise judicial power. And we say that your Honour, in seeking to criticise in a highly critical manner members of the profession and attack on reputation is a serious as it gets. And would be enough common ground, we say that your Honour is going beyond your constitutional power because your Honour, once there is an appeal, has got no right to be critical. It's not something that is happening on your Honour's patch. It - your Honour might be hurt and upset that your Honour's efforts to please everyone have not been recognised. And we understand that as a human characteristic.
HH: That's not the basis.
Towards the end of the day Gilles changed tack, aware that this was going nowhere and HH was not going to back down ...
GILLIES: We wish to reiterate that we've got a fervent desire to have a cordial resolution of this situation. We do ask your Honour to take into account the fact that my clients, like your Honour, are highly reputable people and that, in humankind, it's possible for intelligent and very reputable people to have different views on topics – definitionally, on the meaning of 'discourtesy'. We accept that, definitionally, your Honour genuinely and sincerely believes there has been a discourtesy. We would ask your Honour to accept, as a threshold point, that my clients genuinely and sincerely believe it has not.
If decent and intelligent people genuinely disagree, there should be a solution and not a solution whereby someone is punished reputationally, which is far worse than any fine as your Honour understands - far worse than a conviction. It's the worse possible thing that could happen to a practitioner. In that situation it's my respectful submission that each side to this dilemma should have it within themselves to accept the other's view and to part, whilst no satisfied – it's a difficult situation - but to part friends in the sense that there should be no inhibition from my clients ever appearing in front of your Honour.
HH: Of course not.
In the end, there was sweetness and light ...
HH: ... Thank you, Mr Gillies, your intervention and particularly the way in which the afternoon has progressed underscore the confidence I've had in the Victorian Bar and the way we go about things. It's a great strength that tucked down in the South Eastern corner of Australia there is actually a highly developed sense of etiquette between the bench and the bar. And I think what has happened today, although in the context of real robustness at various times, has been a reaffirmation of the strength of that relationship between the bench and the bar on a proper basis.
GILLIES: Yes. Thank you, your Honour. And I know that your Honour would always endorse robustness at the bar table as a medium of solving problems that confront your Honour.
HH: Yes, very good.
Thank you umpire, thank you linesmen, thank you ball boys.
See: transcript