Solicitor takes to the airwaves to defend client’s toothbrush technique – Disciplinary proceedings and costs – Unhappy silk … Fed Ct judge cleans the bottom drawer in readiness for departure … Temper tantrums and bias – Difficult litigant … Departure from appropriate judicial standards … Groper files from Perth
Not only was Stephen Davies SC unsuccessful in his cost’s application, but the State Administrative Tribunal took over three years to hatch its reasons, which included some unkind words about the gilded advocate.
It’s worth mentioning that SAT has a statutory obligation to deliver its decisions within three months.
Perth solicitor Nicole Anne Young acted in family law proceedings for a client who had also been charged with assaulting his son over a dispute about whether the young lad had brushed his teeth.
It was alleged the client grabbed the toothbrush and vigorously cleaned the boy’s teeth – resulting in bleeding gums.
[This is an entirely different toothbrush drama from the one made famous in another family law matter by Judge Sal Vasta.]
The wife of Young’s client complained to the police, leading to charges of common assault in circumstances of aggravation.
The suggestion was that the wife’s complaint to the police about teeth cleaning methodology was made by way of leverage in the family law matter.
In a mistaken attempt to excite media attention, Ms Young engaged a PR operative and found herself being interviewed on Perth station 6PR about her client’s woes.
There she told the desperate housewives of Perth that the ex-wife was whinging to the police to further her interests in the custody and parenting dispute.
Anyway, she claimed, parenting issues concerning protection against tooth decay are not the concern of law enforcement.
The media frenzy continued – with a follow-up interview with the muck-rakers on radio 2GB in Sydney where she made much the same claims.
The folly of peddling her client’s cause on the airwaves was by now apparent. The Bureau de Spank moved in, waving a whole heap of conduct rules about prejudicing a fair trial and alleging unsatisfactory professional conduct against Ms Young.
She engaged Stephen Davies to show the tribunal that there was nothing unsatisfactory about doing some PR for her client on the wireless.
In November 2017, about a year after the radio bursts, the charges against the toothbrush enthusiast were dropped for want of prosecution.
Two years after that the Bureau applied for leave to withdraw its application against the solicitor. However, by then Mr Davies’ costs had climbed and he was anxious to retrieve some hard earned shekels.
Just as Ms Young claimed there was no reasonable basis for the police to concern themselves with a father’s rigorous approach to oral hygiene, she also maintained there was also no reasonable basis for the Bureau de Spank to press ahead with a complaint about her media performances.
Further, the Bureau’s application was oppressive and amounted to an abuse of process. She wanted the Bureau to pay Mr Davies costs.
The SAT hearing about the fees took two days, with the tribunal observing:
“That is far in excess of the time the Tribunal would ordinarily give to the hearing of a costs application. Despite the Tribunal’s exhortations that the parties (each of whom was represented by senior counsel) should resolve the issue of costs by conferral and compromise, that proved impossible. It is something of an understatement to say that the Costs Application was vigorously pursued and defended.”
This was “regrettable” but down to “complexity, which was reflected in submissions … described as ‘dense’.” Also, it was not the most important case on the block having a “very limited practical impact of its resolution”.
Moreover, the tribunal was waiting for the WA Court of Appeal to decide other disciplinary proceedings against Ms Young. Yet, those reasons came down in May 2022, 18 months ago.
The fight for Davies’ costs went nowhere, with all the various planks of the respondent’s argument rejected.
However, the tribunal made some icy comments about the zealous pursuit of costs.
“Even accepting for the sake of the argument that the Costs Application was unusual and required greater development than an orthodox costs application, the devotion of such a significant amount of time to the Costs Application, was grossly disproportionate to the time taken on the Application itself. Such an approach to costs was, with respect, entirely out of step with the approach to costs which is taken in the Tribunal, and which the Tribunal expects will be taken by practitioners acting for parties in the Tribunal.
That such an approach was taken by an experienced senior counsel is even more disappointing. We hope that such an approach is not repeated.”
Stephen Davies had been mentioned in our dispatches before – also concerning a costs dispute with solicitor Barrie Goldsmith. The tribunal made an order that Bazza be suspended from the jam roll for 12 months for failing to pay fees and making untrue statements.
However, it turned out that Judge Henry Jackson who sat as deputy president of the State Administrative Tribunal was an old chum of Davies and the extent of their relationship had not been adequately disclosed to Goldilocks.
The furious fee fling had to go back for another hearing.
See: From out of the West
In 2020, when Davies was president of the Swan River Bar ‘n’ Grill he delivered a ham-fisted message on sexual harassment to the rank ‘n’ file.
“No significant problem” of sexual harassment exists at the WA bar, he wrote in a barrister-wide email that accompanied a new sexual harassment policy.
The email, described as a “total train crash” by one senior bar-member, has been condemned. There are reports that female barristers would boycott the annual bar feast in protest.
See: Drama at the Sandgropers’ grill
Legal Services and Complaints Committee and Young
There were sighs and groans of relief at the Western Australian registry of the FCA when Justice Susan Kenny delivered her reasons and orders in a long awaited migration case, EYG18 v Minister for Rejections & Ejections.
It was an appeal from Judge Vasta at the FCFC and in a departure from regular appellate practice, Justice Kenny came to the same outcome as Salvatore.
It was all about a safe haven enterprise visa – appeal dismissed – but it took 19 months to dismiss it.
The judgment came down on November 1, which is just as well as Kenny J is scheduled to reach the age of constitutional senility by the end of this month.
She must have found the case lurking in the bottom draw in the course of a pre-retirement clean out.
Anxious observers are wondering whether there’s anything else HH needs to turn around in the next six days – in order to avoid another Kathleen Farrell fiasco.
Justice Simon Moncrieff has retired from the family law business in WA – but on his way out the WA appeal judges found one of his parenting judgments from earlier this year was attended by a reasonable apprehension of bias – accompanied by tears, bouts of shouting, and a temper tantrum.
In a highly acrimonious partnership breakdown, Moncrieff made orders giving sole parenting responsibility to the father of two youngsters and restraining the appellant mother from contacting the children.
In 2021 when the mother was self-represented Moncrieff ordered that all applications made by her be dismissed and the case proceed on an undefended basis.
She appealed to the WA Supremes against the trial being allowed to proceed on an undefended basis, and against the parenting and financial orders.
She contended she was denied procedural fairness as a result of the primary judge breaching the bias and the hearing rules.
The whole show now has to go back and start again after the WASCA said it was an error to exclude the appellant from the trial – it wrongly deprived her of the opportunity to adduce or challenge evidence and to make submissions about the orders.
Apprehended bias could be sheeted home variously to:
Excluding the appellant from the trial, “might lead a reasonable observer to apprehend that the decision might be the product of a pique of temper rather than a considered application of the applicable legal principles”. He did not seek submissions from counsel appearing for the father or the children.
The audio strongly suggests the judge had slammed something down onto the bench and stormed out of court.
“That apparent loss of composure and temper would strongly suggest to a reasonable properly informed observer that the judge’s decision was influenced by an emotional outburst and not by an objective impartial assessment of the merits of the case. In all the circumstances of this case, it may be reasonably apprehended that the primary judge was diverted from deciding the proper exercise of the court’s power on the merits of the case.”
Reference by the appeal judges was made to Michael Kirby’s remarks in the Galea case, and the hypothetical lay observer, where HH talked about a litigant’s irritating prevarications – but that “soon afterwards the emotional storm had passed, and the trial resumed its steady progress on calmer seas”.
In the present case the trial did not resume on calmer seas. The point at which Moncrieff lost his composure was the point at which he made the wrong decision for the hearing to proceed on an undefended basis.