NSW Court of Appeal protects offensive barrister … Identity kept under wraps for 20 years … Resignations and redundancies at the bar association, the law society and the AAT … Judge denounces boring dinner parties … Political hacks seeking credit for judicial appointment … Theodora reports 

The bar had appealed NCAT’s finding that nothing much should happen to EFA after an alcohol fuelled dinner for barristers’ clerks during which he staggered over to assistant clerk, “H”, and invited her to perform fallatio on his member. 

Also present was a male friend of “EFA’s”, described as “A”. 

“H” complained and the bar council took it up, alleging that he had pushed her head down and towards his crotch while making the offensive invitation. 

After examination of the video tapes both NCAT and the court of appeal thought that there was no pushing of H’s head. Instead, it was found he placed his left hand on the back of her head while telling her to “suck my dick”. 

The appeal judges thought that EFA had suffered enough. His insurance premiums had increased by more than $60,000, so there was no need for a fine; his behaviour was “an isolated instance of departure from accepted societal and professional norms of conduct”; there was no requirement for counselling; and the psychiatric evidence was such that he would be extremely miserable if his identity was made public. 

The appeal court stuck with the finding of unsatisfactory conduct and rejected EFA’s contention that he had never said “suck my dick”. The immediate distress of “H” was such that it was “an accurate reflection of what was said to her”. 

Bathurst, Leeming and Simpson also made play of the fact that media outlets had reported that he had pushed “H’s” head towards his genital area, whereas NCAT had not found that to be the case. It appears that no further spanking was required because this reporting must have been upsetting enough for the anonymous “EFA”. 

Justinian was cited [at para 187] as an offender in this respect:

“More moderate publications still misstated the findings of the Tribunal. For example, Justinian (which we understand to be an online publication directed specifically to the legal profession) said: 

That was preceded by: 

In their rush to get the judgment out for Christmas, their Hons must have overlooked this quote from the tribunal in our report: 

“As he approached the table, EFA gestured to A, sticking up the middle finger of his right hand. A raised his hands to cover his face, his right hand behind his left hand. He then moved his left hand to reveal that the middle finger of his right hand was raised toward EFA. 

“This interaction occurred with H located between A and EFA, and she could see the interaction between them.

“EFA moved towards A, who was still seated, and took hold of A’s head. EFA moved A’s head forwards and back from EFA’s crotch several times. H was looking at A when this began, and then she looked away and then looked back. 

“When EFA released A’s head, A was smiling and looking up at EFA. H was also looking up at EFA. 

“EFA, still behind and to the right of H, touched H’s head with his left hand and lightly pushed it forward, over the table, whilst saying something. 

“H’s head moved forward and down, slightly, and then H moved her head back quickly. She had a shocked look on her face, with her mouth open in an ‘O’. She did not speak at that point.”

It’s OK because this bit of bovva-boy carry-on involved pushing “A’s” head toward’s “EFA’s” crutch in front of “H”, asking the assistant clerk to suck his dick, while at some point having his hand on the back of her head. 

The message was pretty clear, but there’s not much problem with that at all, according to their Hons – all while the bar is attempting to douse the swaggering boyo culture. 

The other element the court got skew-whiff is the idea this was an isolated incident – it never happened before and it will never happen again. 

Yet, it was also described as a “ritualised greeting”. If its a ritual it’s well known and understood for what it is and EFA would be familiar with it. 

The court ordered “EFA’s identity to be kept secret for 20 years. Two decades – it’s not too long to wait before open justice prevails. 

Meanwhile, we hear that redundancies are on offer at the NSW bar association – a sign that Covid has sliced members’s incomes and therefore bar revenue. 

We’re also hearing reports that that another young female member of the Law Society’s staff has resigned with a non-disclosure deed. 

We’ll have more news about the Law Society in Phillip Street when the curtain goes up on the new law term. 

She has fans who credit her with navigating the perceived entitlements of many of the over-paid and under-performing part-time members and managing the hard pressed public servants who ran the registries. 

Leathem came in for a torrid time at estimates from Senator Kim Carr (Lab. Vic.) and the new Bronwyn Bishop in the red chamber, Senator Sarah Henderson (Lib. Vic.). 

Leathem told the senate committee that it would bring the AAT into disrepute if she revealed details of members’ work and payments. 

She was right about that. 

She had been under pressure from part-time members of the migration and refugee division to keep secret details of their under-performance and over-payment. 

Fifteen part-time AAT members, including Liberal Party hangers-on, were paid when they did no work between July 2018 and June 2021. 

Part-time members are now required to use timesheets in an attempt to quantify more accurately what they are doing and the time they spend on cases. 

Leverhulme, our man in the Old Dart, forwarded a letter published the other day in The Times … 

Tasmanian barrister Shaun McElwaine SC has been appointed to the Federal Court. 

Including these political hacks in the announcement of a judicial appointment is weird, unnecessary and, as expected from this regime, cheap. It’s intended to create the false impression that they all had a hand in the appointment.   

Justice McElwaine would be squirming.