Incendiary retorts
Anne Bampton: slabs of transcript includedFrom Torrenside’s Supreme Court comes drink-drive justice Anne Bampton ticking off counsel in a defamation appeal for “plaguing the proceedings with a tinder box of difficulties”.
Peter Quinn from Murray Chambers appeared for Mr Patel (a pseudonym) who was defending an appeal against a magistrate’s decision brought by Ms Singh (a pseudonym).
Bampton opened with this:
“Presiding over a trial, particularly a defamation trial, involving an unrepresented party, let alone two unrepresented and highly excitable parties prone to interject, one also fraught with health issues, is no easy feat.
Add to this the party with health issues participating in the trial via an audio-visual link which frequently malfunctioned and an opposing counsel whose cross-examination of the self-represented parties is replete with incendiary retorts of ‘be quiet’, stop making a ‘speech’, and ‘no one’s listening’, plaguing the proceedings with a tinder box of difficulties.”
Singh had alleged that Patel sexually assaulted her at her home in May 2014. She said he had sent text messages asking whether her “highly intoxicated” husband was asleep and demanding to come around “because he wanted to hug me”.
According to Bampton’s judgment:
“Ms Singh said Mr Patel came to her unit, ‘could hardly stand up straight as he was so drunk’ and ‘started to bash the door, asking … [Ms Singh] to let him inside’. She said ‘[I was] scared as to what my neighbours may think, I unlock the door and let him inside our house. As soon as I unlock the door, he pushed himself over me and started to hug and grope me.”
Her friend Ms Chopra assisted Singh with the wording of a statement about the incident, which she published on a WhatsApp video.
A further statement was provided to the police, but in July 2019 the charges against Patel were dismissed for want of prosecution.
Patel brought the defamation proceedings in the magistrates court, where Ms Singh pleaded justification and contextual truth. Magistrate Michael Fortheringham dismissed the defences, saying that the defendant was actuated by malice, even though this had not been pleaded by the plaintiff.
Damages of $50,000 were awarded against Singh and Chopra jointly, with another $25,000 in aggravated damages against Ms Singh.
Peter Quinn: be quietThe appeal succeeded with Bampton finding there had been a lack of procedural fairness throughout the trial; that the magistrate erred in rejecting the justification defences; and that the scope of the publication was not made out.
The magistrate intervened in an attempt to contain outbursts from Singh and Chopra and to stop Patel’s counsel Peter Quinn from yelling.
Singh and Copra were represented by a lawyer at a pre-trial conference and at directions hearings. Other than that it seems they represented themselves at the trial. Ms Singe submitted that the magistrate should have assisted her during the proceedings.
Bampton said that throughout the proceedings Quinn:
“… repeatedly and facetiously characterised the evidence of Ms Singh and Ms Chopra as speeches. He told them to be quiet, that they were wasting everybody’s time and that no-one was listening to them, and he was not stopped by the magistrate.”
Attached to HH’s reasons was an appendix running for 24 pages with slabs of trial transcript detailing Peter Quinn’s role in the highly volatile proceedings.
Here’s one tasty exchange:
MR QUINN: Listen to the question. Listen to the question. You agree that the charges that I’ve just referred to were thrown out of court, that is to say dismissed on 10 July 2019 by a magistrate in this court. You agree with that.
MS SINGH: Yes, yes. I just –
MR QUINN: Thank you. I don’t need a speech, I just need the answer. Yes.
MS SINGH: Yes, yes. I received a –
MR QUINN: No, no, listen.
MS SINGH: I am not giving a speech. I just received a message. I just received a message ‘The court dismissed the case’, that’s it, nothing else …
OBJECTION: Ms Chopra objects.
Ms Chopra: Sorry, your Honour –
A. Okay, so what is the truth? What is the truth?
MR QUINN: Be quiet.
MS CHOPRA: Do not point at –
MR QUINN: You be quiet.
MS CHOPRA: Do not point at me, please.
MR QUINN: You be quiet.
MS CHOPRA: Do not point at me, be civilised.
MR QUINN: You be quiet.
The trial judgment is quashed with an order that it start again.
Peter Quinn replied to Justinian’s inquiry:
“I am not at liberty to comment on the observations of Bampton J, who did not preside over the trial. The parties to the action are in the process of recording an in principle settlement. Accordingly, it is not open to me as counsel for one of those parties to comment on the conduct of the other parties which may prejudice that settlement.
However, to be fair and balanced, any article you prepare should have regard to the first instance decision.”
Singh (a pseudonym) v Patel (a pseudonym)
A lamentable incident
Counsel for the Immigration Minister had “heckled” from the bar table during an applicant’s submission – prompting FCFC judge Sophie Given to issue a reminder about the government’s obligations as a model litigant.
Given quashed an AAT decision and sent the application back for another crack after finding that the tribunal had made a jurisdictional error.
In EQU18 and EQV18 the applicants were a married couple – the wife a Hindu from India and her husband a Pakistani Muslim. As an inter-faith and inter-racial couple, they feared persecution if they were returned to their countries – from her family and Hindu extremists and from his family and Islamic extremists.
The AAT found that the wife would not be in danger of harm from her family because she had not been in touch with them since 1991 and she did not suffer harm during a previous inter-racial, inter-faith relationship.
Judge Given said that the tribunal failed to assess the wife’s credibility in relation to her claim that she had been beaten by family members in 2011 because of her relationship with the second applicant.
Tim Reilly: apologies, if askedGiven added she found it necessary “to record the occurrence of a less than decorous incident” while Michael Jones, the solicitor for the applicants, was making an oral submission about “apparent inconsistencies in what must have been a highly traumatic event which apparently, occurred …”
Tim Reilly, counsel for the minister twice interjected loudly “in an incredulous tone, to heckle from the bar table: “if ever it occurred.”
Both applicants were in the court room at the time in the interjection.
Judge Given said it was not the function of the court to assess the truth of the claim that the first applicant had been beaten by members of her family.
“All that the Court, and any party in these proceedings can do (also acknowledged by the first respondent’s written submissions), is to assess the manner and availability of that reasoning to the Tribunal.”
Michael Jones had couched his submission about the event in “relatively neutral terms”.
The judge added:
“Having been taken aback, the court did not raise this incident with counsel at the time. No doubt if it had been raised, counsel would have apologised.
To interrupt an opponent’s oral submissions other than to assist (for example by correcting an errant reference), while sometimes seen as part of the permissible jousting at the bar table between counsel, is often just rude. To do so in the presence of an applicant who claims to have suffered a traumatic event, by casting aspersions as to the truth of that event, is demeaning and potentially further traumatising. It is also unbecoming and tends to bespeak a degree of partisan zeal as to the personal merit of an applicant’s case, which should be avoided by the minister and those who represent him by reference to the duty to act as a model litigant.
The incident, while lamentable, has not factored into my consideration … However, it should not occur again.”
Tim Reilly replied to our request for comment:
“I will leave it to others to judge whether what HH records (me apparently twice saying ‘if it ever occurred’, in relation to an incident the Tribunal had found had not occurred) was heckling. As HH states, no doubt I would have apologised if asked.”
EQU18 v Minister for Immigration
Moderately significant
Mr Reilly is not the only one who was lettuced recently by Judge Given. MinterEllison came in for notice after slipping on the model litigant banana peel in another immigration case.
Given J: requires care with calibrationsThe applicant unsuccessfully sought an extension of time in which to seek judicial review of an adverse decision by the AAT in which he was denied a protection visa.
It turns out he was 161 days out of time with filing his application for review.
The minister’s man in court, Taylor Young, opposed granting an extension of time, indicating that the delay in this case was “moderate”.
Judge Given was perplexed, because in other cases before the FCFC where extensions of time were sought the Commonwealth applied different descriptions to delays that were shorter than the matter before her:
24 days: moderate
33 days: significant
36 days: not trivial
41 days: inordinate
83 days: unwarrantable
137 and 153 days: significant
160 days: significant
She said the government had an obligation to act consistently in its handling of litigation.
“Care should be taken by the minister in making submissions to the court whereby inconsistent contentions are advanced in relation to an objectively binary factor. The minister, and those who represent him, should take care to calibrate their descriptions of delay so as to avoid advancing inconsistent submissions as to the length of delay. That is particularly because it is well established that the longer the delay, the more persuasive the explanation for it needs to be.”