Theodora and Miss Ginger Snatch put their heads together and recall the highs and lows of 2019 … Lawyers and the law … Reliving the stories that tickled our fancy … Entertaining judges … Law shops in the frame … Silken ones … Courts in the act … Bureau de Spank … And heaps more
We start on a melancholy note, remembering that the legal profession for much of the year was in mourning at the news of the departure from the mortal coil of Sydney solicitor, race track punter and Mr-Fix-It for organised criminals, Morgan Ryan.
Morgan made a major contribution to unravelling the life and career of Lionel Murphy, who is alleged to have approached several judges in an attempt to get Ryan off charges relating to a Korean immigration racket.
Among Lionel’s targets were NSW Chief Magistrate Clarrie Briese, Judge Paul Flannery of the District Court, and former senator (Diamond) Jim McClelland who he pressed to approach another judge, Jim Staunton.
Murphy was found not guilty at his second trial on a charge of perverting the course of justice.
As it turned out the High Court judge need not have bothered. His little mate was convicted on the conspiracy charge in 1983, sentenced to be of good behaviour for five years and fined $400. The Court of Criminal Appeal overturned the conviction because of a misdirection by Judge Paul Flannery and the new trial was no billed.
Ryan was not the only pillar of society whose activities we were privileged to document. Remember the litigant non-de-plumed as XYZ who was being sued by Jane Doe, a jilted lover of the philandering hot-shot lawyer defendant.
Doe’s claim is in nervous shock, battery, trespass to her body and for exposing her to the risk of STDs.
Doe had a two-year long relationship with XYZ, who was also active in business, a leading light in the not-for-profit sector and an all-round adornment to society.
The pair’s relationship was meant to be monogamous, the plaintiff says. She claims the defendant promised he wasn’t seeing anyone else, and on that basis, she agreed to have sex with him without protection.
But, the plaintiff submits the defendant was lying. He was in fact already married (with children) and was also concurrently seeing at least 15 other people, of various genders, including hookers.
The mystery has yet to fully unravel.
Prayers from clerics and other godly individuals were answered when Judge Roy Ellis of the NSW Dizzo overturned the conviction of Bishop Phillip Wilson.
Wilson had resigned as Roman Catholic Archbishop of Adelaide over allegations that he had covered-up the abuse by Father James Fletcher of a 10-year-old boy, at a time when both Wilson and Fletcher were attending to the flock in the Maitland-Newcastle diocese.
On appeal Judge Ellis was impressed that Wilson kept an “open mind” when he heard the allegation about Fletcher – much like the way Senator Jim Molan told the Q&A audience that he kelp an “open mind” on climate warming.
He found both Wilson and the victim to be honest witnesses but Ellis preferred Wilson’s long forgetfulness as to his knowledge of the abuse rather than the victim’s long term recollection.
An earlier decision allowed the Bishop to serve his sentence at the home of his sister, where there was a plentiful supply of tea and home-made scones.
Wilson’s case left a nasty taste in the mouths of the victims and observers of the “justice system”.
Last March, Justinian reported that Phillip Boulten SC and David Jackson QC are on Bernard Collaery’s legal squad for the bizarre national security case launched by the Commonwealth DPP and notorious AAT bench stacker, the Christian Porter.
Collaery, a former ACT attorney general, and Witness K, a former senior ASIS operative, are in the government’s frame over leaks concerning Australia’s bugging of the Timor Leste ministerial offices at the time of the negotiations for the seabed boundary and access to the Greater Sunrise natural gas deposits.
The evidence is the subject of various notices from AG Porter under the National Security Information (Civil and Criminal Proceedings) Act.
As a result, publication of parts of the prosecution’s brief of evidence are restricted and can only be read by lawyers acting in the case and by the accused in the presence of lawyers. Attorney General Porter wants Collaery’s trial to be a cloak-and-dagger affair.
The trial is scheduled for three days between April 6 and 8. Witness K has a date in the ACT Magistrates Court on March 30.
Earlier last year sources told us there were sightings of John Pascoe, former chief justice at the Family Court at the court’s premises in Sydney.
Even though he had retired, he still had access to court resources, maybe as a grace and favour arrangement from his old chums in the Liberal Party. Other former Family Court chief justices are miffed that they missed the free post-retirement court facilities.
Judge Salvatore Vasta took the laurels as judicial headline grabber of the year, surpassing Sandy Street by a country mile.
For the record, we have some morsels on Sandy from last year, here and here.
Sal must like seeing his name in the daily blatts because there was rarely, if ever, a dull stretch without compelling news about his judicial method.
The most recent was Sal’s dismissal of a case brought by a self-represented litigant against the Commonwealth Bank, which had refused to extend her loan – resulting in serious financial difficulties.
Susan Dennis applied for a loan because she was without income while she looked after her ill pooch, an English setter named Hobson.
There was Sal’s trademark admonition when the litigant tried to talk:
We saw the same thing in Gambaro v Mobycom Mobile in an unfair dismissal case:
In a protection visa case he said that people shouldn’t be coming to court if “they don’t know whether they will succeed or not”. Lawyers throughout the land might be surprised to hear that.
In the Jorgensen case he sent an employer to the clink and fined him $85,000 for underpaying staff.
This had to be reversed by the Full Federal Court, which found that the Circus Court judge was “openly hostile … disparaging … sarcastic … aggressive … unfair … [and] frequently cut Mr Jorgensen off while he was endeavouring to explain critical aspects of his case”. The judge’s questions “would have been objectionable if asked by counsel”.
In Stradford v Stradford, a family law case, Sal sent the husband to jail for 12 months for failing to produce financial records. An appeal bench of the Family Court rescued the poor fellow after he done six weeks in maximum security on suicide watch.
In another case he ordered that the child of a same-sex couple should be baptised as a Catholic – even though no such order had been sought by the parties. The judge went on to tell one of the women that she would go to jail for five years if she disobey his orders about living arrangements.
The appeal bench said this showed that Vasta had a “complete misunderstanding of the provisions” of the Family Law Act.
There are other infractions, too numerous to mention.
All of this makes it quite extraordinary that attorney general Porter considered Vasta for appointment to the Family Court and that Two Wigs Willy made him acting chief judge of the Circus Court and national case management judge – a treat for someone who can’t manage his own cases.
Sal’s letter to his fellow judges explains his difficulties and his unhappiness at being birched by those higher up the food chain.
Vasta is undertaking therapy, administered by agents of Two Wigs Willy.
In unconnected Circus Court news, NSW Law Society President, Uncle Doug Humphries, delivered a stellar judicial job application speech – up there with Dyce Heydon’s application to the High Court at a Quadrant banquet.
Representing the Law Society, the LIV and the Law Council at a Family Court welcome for Two Wigs Willy and Robert McClelland, Humphries commenced his oration:
“Your Honours bring an enthusiasm and energy to a legal system that is in need of significant reform. This is a great foil to the negative nature of the general, but particularly current, debate in family law …
[snip]
Your Honours have not been afraid to take chances and be bold in the face of negativity, from some areas, to change, and media criticism, you were not perturbed. The results, which we have heard about, are there to see.
[Some structural problems, perhaps, with that sentence, but nonetheless a brilliant sentiment.]
The two of you will made a formidable team, one needed in these times of change.”
Low and behold, soon after Uncle Doug was appointed a judge of the Circus Court.
In other judicial news, we reported an endearing story about Justice Kate McMillan of the Yarraside Supremes, who handed over a key to a gate she kept locked on a laneway adjacent to her property in South Yarra.
Peter Cox, one of the neighbours, had properties in an adjoining street. He said there was an easement that was supposed to give him access for stormwater runoff, underground sewerage and maintenance.
McMillan’s locked gate was the problem and it took Justice Malcolm Blue from the Torrens Supremes, after some time and trouble, to make consent orders about rights of access and handing over the key to Kate’s locked gate.
Federal Court Justice Nye Perram apologised for accidentally sending an upsetting email to a litigant. These things can happen.
The applicant in a disability pension case wanted any judgment about the case to be suppressed. There was quite a few emails going back and forth between the litigant and the Nye’s chambers.
Unfortunately, it also went to the applicant.
Justice Hormones Harrison in NSW had to grapple with an application from a family values adherent wanting the judge to disqualify himself from one of the interminable Burns v Gaynor cases on the ground of apprehended bias.
Bernard Gaynor is a conservative supporter of Catholic values who discovered that the judge’s tipstaff had made gay-friendly posts, including on Facebook a review of a production of Peter Pansexual at the University of Sydney. The associate wrote:
“One of the show’s real strengths was its diverse, nuanced portrayal of the many shades of sexuality. While there were, of course, the requisite gags starring dildos and twinks, the show roamed far beyond stereotypes and sequin jokes and even came perilously close to salient social commentary in parts.”
In his affidavit, Gaynor argued:
“I believe that the evidence shows that [Harrison J’s tipstaff] has participated in homosexual activism and been a member of homosexual activist organisations and also attended and supported the Sydney Gay and Lesbian Mardi Gras …”
Justice Harrison responded: “In my limited experience, cases are decided by judges, not their staff.”
Justice Richard Refshauge took advantage of his retirement to catch-up on the backlog of his cases, but unfortunately the same could not be said of Hilary Penfold, who retired as a Molonglo Supreme Court judge in March 2018.
In April, Artemus Jones reported Penfold was still sitting on six outstanding judgments. Some of these cases were heard years ago – one dates back to 2014 and two to 2015.
At the time of Artemus’ story, Hilary had recently engaged in an uncharacteristic burst of judgment writing.
On February 15, she handed down her decision in Atherden v Caldipp (2019) ACTSC 29 – a run of the mill personal injury case in which liability had been admitted. It had been heard in January 2017, some two years previously.
It was predicted that at this rate Penfold’s backlog could well be cleared within a couple of years.
2019 saw a high degree of stress among judges of the Family Court, although Justice Peter Murphy managed to release a large amount of anxiety when he spoke at his farewell from the court.
It was an incendiary oration with barbed comments about political appointments and courts as the “playthings of governments”.
Certain unnamed judges were described as “gutless” while Two Wigs Willy and John Pascoe “should hang their heads in shame”.
For good measure the government’s family law reforms were a “farce”. You can lead the fireworks here. Enjoy.
Charles Waterstreet was debarred in NSW because of his taxation problems and bankruptcy. It seems that all the other things for which Waterstreet was infamous were not identified as ground for expulsion – e.g. showing videos of his penis to a young woman who applied to be his assistant; giving a book containing his nude photo to another intern; showing sex toys and subjecting other applicants to sleazy comments and innuendo; and promoting the products of a watch merchant in his wig and gown.
That was just a sample.
In Melbourne, Alan Sandbach was finally put off the track for “tax related conduct”, namely unlawful deductions which were said to involve “artifice, fraud or sham”. Sandbach also appointed retired barrister David Munro the sole director of his tax avoidance vehicle, Campus Martius Pty Ltd.
Munro’s daughter said that her father had dementia and had no cognitive capacity to carry out a director’s duties.
Lord Eldon at the Brisbane Bar ‘n’ Grill was spotted in a shimmering acid-green robe as he wound his way to the retirement ceremony of Judge David Andrews (son of Dormer).
He explained to our reporter on-the-spot:
“Strictly, the privileges of being a QC – I cannot say whether this applies to SCs as well – include the right to wear a silk gown in any colour except red, which is reserved for Supreme Court judges, or purple, reserved for District and County Court judges …
I have decided that we have mourned enough for Queen Anne – even more so, if it was actually Charles II – so I usually wear a navy blue gown.”
He is careful to wear his glittering acid green robe sparingly, “since the golden hue does tend to project a sense of Lord Eldon-like self-importance”.
The year recorded much anxiety about the quest for royal plumage. We discovered that in the last five years there have been 85 silken Yarraside appointments, of which 71 designated themselves QC (84 percent) while only 14 stayed with the more organic title of senior counsel (16 percent).
Here’s the breakdown from 2015 to 2018. Calculations for the conversion rate from SC to QC for 2019-2020 are underway.
Meanwhile, along the banks of the Torrens, senior counsel frantically traded in their old SCs for shiny new QC baubles. After being duchessed and lobbied by the local briefs, attorney general Vickie Chapman decided to reinstate the royal orb for SA silkies.
Supreme Court judges, led by CJ Chris Kourakis, were pretty livid about the whole display of insecurity and vanity, as his letter to Chapman made clear.
Kourakis also said that the court would not be “coopted” into facilitating QC appointments.
Tasmanian barristers also wanted to shake off their senior counsel robes in favour of more theatrical raiment.
An email survey went to 74 members, of which 55 percent, or 41, practise primarily in Van Diemen’s Land.
However, only 36 members responded to the poll, of whom 30 ply their trade locally. About 80 percent of the respondents were in favour of adopting the royal ornamentation – but only for those who had first been appointed SCs under the Supreme Court’s existing protocol.
DLA Piper bravely tried to implement an scheme whereby the shop didn’t have to pay barristers it briefed until the client coughed up the money.
Michael Wyles and Rodrigo Pintos-Lopez of the Yarraside bar ‘n’ grill discovered this scheme, to their amazement, when they asked for their fees relating to work in separate matters.
Wyles was chasing $370,000, but would have accepted $273,975 plus interest for work he did on an insolvency matter involving a US Chapter 7 bankruptcy trustee.
Pintos-Lopez was chasing $97,554 from DLA Piper.
Wyles said that had he known the firm needed to be paid by the client first, then he would have made other arrangements.
Investigative reporters from the Nine newspapers and Huffington Post, were chuffed after two brothers at the helm of global oil and gas “consultancy” Unaoil pleaded guilty in a Texas court to corruption charges.
And chuffed they should be, after being subjected to a campaign seeking to discredit their work by the company’s law firm Kennedys, hired PR operatives, and rival hacks at The Australian.
According to documents sent to Nick McKenzie at The Age, Unaoil had bribed officials, rigged tender committees and even placed prime ministers on retainer. Apparently, these illegal dealings went on for 17 years across nine countries, mostly in the Middle East, for clients that included Leighton Holdings.
The cache of emails and corporate files were leaked by someone close to Unaoil, whose identity has never been disclosed.
Rebecca Giles at Kennedys wrote to Peter Bartlett at Minters, The Age’s lawyers, saying her client was “seriously considering the options available to it, including with respect to commencing proceedings against your client for damages and potentially engaging law enforcement authorities to investigate any assistance given by third parties to those involved in the extortion of our client”.
Ms Giles went into print in an article of her own for The Australian, which questioned Fairfax’s methods, including the steps they took to verify the documents. The article left no doubt that Unaoil believed the journalists were “an instrument in blackmail”.
And all the while Cyrus and Saman Ahsani from Unaoil had no where else to hide except admit they were ccrrupt. So much for “reputational risk”.
John (Vlad) Atanaskovic’s law shop did not escape attention at various points throughout the year, particularly after it was discovered that employed solicitor Brodie Clarke had made off with about $7 million from the firm’s heavyweight client Bruce Gordon of WIN TV.
Gordon wanted his money back and Antagonistic wanted fees he claimed were owing, including fees for investigating Clarke’s fraud.
Vlad was awarded fees of $928,982, and in the process he received a serious hammering by Justice David Hammerschlag, who questioned his evidence and criticised his supervision of the fraudulent employed lawyer Brodie Clarke.
“Atanaskovic was an unsatisfactory witness whose evidence I do not accept where it conflicted in a material way with that of Lancaster [WIN’s financial officer] … and, in any event, where it is not is supported by objective contemporaneous material.”
After a 13-day trial, the Hammer bravely slogged out a 113-page judgment. Then, days before his magnum opus was due to be delivered, the parties settled on the fraud question, leaving the unpaid fees as the only issue to resolve.
Law firms, as we know, are nests of discrimination, bullying, and harassment. Piper Alderman was caught up in a kitchen sink drama when partners wanted to sack one of their own, Lexia Wilson from the property practice.
Lexia unsuccessfully tried to get an injunction to prevent her termination. There were allegations that she bullied other lawyers and in turn she alleged that Piper’s managing partner Tony Britten-Jones bullied her.
Her lawyer sent Piper correspondence such as this:
“Mr Britten-Jones has, by his actions and omissions, engaged in a course of unlawful, unreasonable, offensive, bemeaning [sic], belittling, victimising, intimidating, threatening and other inappropriate conduct.”
The last we heard, Lexia had lodged a complaint about her treatment with the Human Rights Commission.
There was the mysterious story of Elizabeth Espinosa’s bottom being fondled at a Law Council of Australia function.
Elizabeth, at the time, was president of the Law Society of NSW and a member of the LCA council.
She tweeted this in March …
Am still gobsmacked, but #metoo just last night at a work function – a professional colleague put his hand on my arse. I physically removed his hand and said ‘Don’t put your hand there.’
— Elizabeth Espinosa (@Elizabe35713553) March 23, 2019
After inquiries and mediations, it was ultimately announced in July that Konrad de Kerloy, a Herbert Smith Freehills partner in Perth, had resigned as president-elect of the Law Council of Australia and from its executive committee.
And also here in our story, AAT selections with Liberal gold star ratings.
The audacious scale of infesting the tribunal with loyalists inclined to the government’s bidding, particularly on asylum and immigration cases, is one of the most important political corruption stories of the era.
Innovative methods of fee collection were also uncovered in a year that saw some glittering professional discipline cases.
Sydney barrister Dymphna Hawkins got a light spanking in circumstances where she had taken on an appeal for Trevor Griffiths who was serving a life sentence in Queensland for double murder.
According to Trevor’s father, Harry, who had been footing the legal bills, Hawkins telephoned him unexpectedly one day in February 2015, saying she and a solicitor were in Brisbane and were willing to visit Trevor in prison.
But, unless they were both paid $5000, she said, they would cancel the visit and fly back to Sydney.
NCAT thought that pressuring Harry into paying $5000 for the jail visit went beyond proper fee collection. In relation to other fees the panel said:
“It was also improper to charge $30,000 for reading and research, since Ms Hawkins had no instructions to do so and hadn’t yet seen the fresh evidence, meaning the work was of little value.”
Hawkins was reprimanded for her unsatisfactory conduct and was ordered to pay Harry a 75 percent refund of $22,500 within 21 days.
Sydney barrister Geoffrey McDonald of 9 Windeyer got a good old wet-lettucing from the Bureau de Spank after NCAT gave elaborate consideration to a disturbing email he sent to his former clients.
Geoff was chasing fees from the Colevski brothers who ran a tyre franchise. They were also acquaintances of a fellow called John Gasovski who was murdered in an execution-style killing – the result of a bungled drug deal.
Most unfortunate. McDonald’s birching was duly delivered. He had to apologise for the implied “death threat” – which NCAT thought was an “unorthodox remedy” for fee recovery.
It’s not the first time McDonald has been birched. In a previous life, he was a partner at accountancy firm Hall Chadwick, and was suspended for two years from the roll of liquidators by ASIC after an unfortunate conflict of interest came to light.
Wet lettuce leaves everywhere.
• • •
We could go on and on and on. But enough, already.