Solicitors and women surging onto the bench in Western Australia … Old timers incandescent … Claims of inadequate trial experience for Supreme Court appointment … Male silks overlooked … Groper reports 

In particular, the elevation of Judge Natalie Whitby from the District Court has got up the hairy nostrils of some of the bar’s out of joint noses. 

It can’t escape attention that Natalie is the wife of Hon Reece Whitby, Minister for Environment, Climate Action, Racing and Gaming, current colleague of the Attorney General John Quigley. 

She’s a good pal of the chief justice’s wife and both the Premier and the AG were clinking glasses at her 50th birthday party. 

These connections are the order of the day in a fairly close knit legal community. 

The grumble is that for a berth on the Supreme Court she has not had trial experience as counsel. In making the announcement, Attorney General Quigley did point to her previous role as an “instructing solicitor” at Freehills. 

She was a Supreme Court Registrar for 11 years before going to the Dizzo in 2021, where the record shows her Honour had 13 published judgments to her name: 

Hardened briefs claim the connections outweigh expertise. 

In Groper’s constant quest for fairness and balance, it should be said that no-one is pointing to any missteps by HH in her role as registrar or a District Court judge. 

In fact, not all of the work of the Supreme Court is contested trial work. There’s a fair amount of rubber stamping of corporate schemes of arrangement, making orders relating to dangerous offenders, etcetera. 

Just the sort of things a registrar is accustomed to handling. 

Maybe, the indignation more closely relates to the fact that Natalie is a woman and a former solicitor. 

One of our sources, bitterly remarked under cover of anonymity: 

“One is entitled to ask why the AG keeps appointing such lightweights (with connections to the AG and/or the chief justice and/or his wife) to the court, rather than experienced silks who would be able to get through the court’s workload.” 

Some may have noticed that it’s not always the case that silks make fantastic judges and there are examples of non-silks who are perfectly good at the judging lark. 

In WA solicitor Paul Tottle, founder of the commercial law shop Tottle Partners, went to the Supreme Court in 2015 and there has been no accusation that he’s been a “lightweight”. 

Last year Tottle upheld the media’s right to protect pre-publication legal advice. The documents were sought by a property developer in an defamation action against WA Today – advice that previously had been relied on as part of the publisher’s defence. 

In a massive kick in the ribs to the media, the Court of Appeal this month overturned Tottle’s findings and handed the legal advice and audio recording over to the property tycoon. See Gazette of Law & Journalism. 

Stephen Lemonis is the other new Supreme Court appointment – also a solicitor who went to the District Court with a record in commercial litigation, corporate crime and insolvency. 

No grizzles about his appointment. 

No doubt about it, Supreme Court justices Larissa Strk and Jenni Hill – both former solicitors – have let down the side with delays. 

In Strk’s case she was birched by the Court of Appeal for taking about a year to resolve the extent of supplementary discovery she had ordered, and in another case for denying procedural fairness to a litigant in person. Justice Strk previously spent five years as the court’s principal registrar.  

Justinian has also reported six cases where WA’s Justice Jenni Hill spent in excess of two years to deliver her judgments. 

See Hill tops item in Fresh hell; Delays, fees and rubbish removal; and Morpheus arises. 

Hill also didn’t directly disclose from the bench that she had been a solicitor and partner in Martin Bennett’s law shop when the firm was acting for the plaintiff in one of Lloyd Rayney’s defamation sprees. 

Another source, who doesn’t want to be quoted for fear of losing his career, thinks there is not a lot of depth left at the WA bar. Some senior silks don’t want to go to the bench, and while several female SCs have taken judicial appointments they didn’t hang around long enough to become “leading SCs”. 

Several judges are to retire in the next 12-18 months, so more opportunities for the bar are on the horizon, Quigley willing. 

One suggestion floating around is that chief justice Peter Quinlan is being positioned for appointment to the High Court. 

Susan Kiefel retires next January and Stephen Gageler will probably become CJ with Quinlan peering across the Nullabor in the hope of taking Gageler’s slot as a puisne judge on high. 

High Court justices James Edelman and Michelle Gordon are Sandgropers, so one more may be too much. 

The WA Court of appeal in 2019 issued a judgment about sentencing in Evans v The State of Western Australia. 

The court was critical of the conduct of a male District Court judge who had been a silk and appointed to the bench by WA AG The Christian Porter. 

The judge has now retired but he was a leading silk his day and just the sort of chap members of the bar think should be judges. 

Buss P, Mazza and Mitchell JJA observed that in the conduct of the Evans trial the judge overrode the trial counsel: 

“She was frequently interrupted by the trial judge, who on a number of occasions stated his conclusion on the issue being addressed without hearing what counsel had to say … 

“The consequence of the manner in which the hearing was conducted was that it was felt necessary for the appellant to brief Mr Elliott (who also appeared on the appeal) as substitute counsel at the adjourned sentencing hearings …” 

The appeal judges noted a “disparity in the manner in which the trial judge treated Mr Elliott and the prosecutor, on the one hand, and his treatment of the appellant’s trial counsel, on the other hand”. 

“In our respectful opinion, the appellant’s trial counsel was entitled to receive more courtesy and respect than she received from his Honour at the hearing on 2 November 2019.”