Barrister leads solicitor astray … Snappy correspondence sent to court registry officer seeking urgent hearing … Attempt at forum shopping … Allegations of impropriety against a judge … Discourteous and provocative missives … The gallows avoided by humble apologies and re-education … Ginger Snatch reports
Their client was detained in immigration detention and was in a bad way medically. They wanted an urgent hearing on a writ of habeas corpus in the Vic Supremes.
They sought a hearing by the practice court duty judge and were opposed to the matter being transferred to the Federal Court. It was contended that the Federal Court was not able to hear these sorts of applications for at least six weeks – and this one was pressingly urgent because the detainee was vomiting blood without access to basic medicine.
It was the lawyers’ correspondence with the practice court registry officer Ms Laura Warren that led to grief.
After a snippy email from the lads on Friday on March 26, 2021 and follow up correspondence on Saturday, Ms Warren indicated that as things stood it looked like the application should be transferred to the Federal Court.
McLean replied with an email drafted by Albert. They were anxious that the matter be kept out of reach of John Dixon J, who is responsible for the supervision of all cases in the common law division.
It included such infelicitous gems as:
“It is clear from your message yesterday and your email below that John Dixon J has a strict policy of blocking any immigration detention habeas corpus application from being heard by another judge in this court …
“… another reason is that the Federal Court lacks jurisdiction to deal with an application in this form (and John Dixon J was plainly wrong to hold otherwise in MB, including because he relied at [45] on his own previous judgment in a passage that is inconsistent with all other authority and has been described as ‘nonsense’; see EZ [2020] VSC 871 …
“If this matter is being considered or determined by a person other than a Supreme Court judge after a hearing, it will be plain that it is a decision vitiated by bias, actual or apprehended, and a denial of procedural fairness …”
The missive was not copied to the defendant at Home Affairs.
Dixon was indisposed and unable to sit that day, so it was sent to Justice Michael Croucher, who cross-vested it to the Federal Court.
A fortnight later the Prothonotary swung into action directing both McLean and Albert to appear before Dixon to show cause why their conduct and the emails to Ms Warren did not amount to a contempt of court.
They were also sent a whole pile of practice notes about who did what in the trial division, how communications are to be conducted, and what happens in the practice court.
The Prothonotary complained about “serious allegations of impropriety against a judge of the court, including that he was improperly acting as a ‘gatekeeper to the court’ by adopting a ‘strict policy of blocking any immigration detention habeas corpus application from being heard by another judge in this court’ in language that was factually incorrect, provocative, discourteous and/or controversial”.
Further, that Justice Dixon’s conduct “amounted to actual or apprehended bias, a failure to consider materials before the court and a denial of procedural fairness”.
Plus, an accusation that HH had erred in a previous decision, again “in language that was provocative, discourteous and/or controversial”.
In effect, McLean and Albert were contending that they could only get a fair hearing if the case was assigned to a judge in the practice court.
The lawyers along with someone from the VLA all turned up and grovelled frantically.
In his judgment, Dixon explained that McLean was admitted in 2018 and has worked in the VLA migration law program since 2019. “By all accounts, he is a talented and committed solicitor.”
He thought the email he sent on Saturday, March 27, was strongly worded but he was comfortable with sending it “because it had been drafted by counsel”.
He promised never to send an email like to the court that ever again.
Albert was admitted to the trade in 2005 and went to the bar in 2010, where he focuses on immigration law.
He accepted he acted without due reflection and exercised poor judgment in the missive to Ms Warren and agreed that he “had not properly reflected on the court’s practice notes …”
Dixon concluded that their correspondence amounted to forum shopping.
“It is not a matter for a litigant or their legal representatives to dictate to the court a preference as to which judge a matter is to be allocated … It is in this context that the correspondence had a tendency to interfere with the due administration of justice.”
However, what greatly disturbed HH was that the lawyers engaged in private correspondence with a court officer, rather than a judge.
The emails “fell short of standards of courtesy, competence and diligence to be expected of a reasonably competent lawyer”.
Prince Albert led McLean astray, “setting a very poor example”, even though the younger lawyer should have exercised independent judgment and not simply gone along with what the prince drafted.
The barrister has sought “rehabilitation” with guidance and counselling from great sages at the bar who are assisting him to find “the balance between activism and advocacy”.
McLean and Albert have been “chastened by this process” and no further action was necessary.