Rude barrister rapped on knuckles by appeal judges in tennis tripping case … Kew Golf Club wanted Melbourne barristers removed from a tree accident case because they might have to give evidence 

Duncan Passmore tripped and fell while running backwards to play a ball lobbed over his head. He suffered a “significant head injury”. 

Passmore said the court’s artificial surface was worn and he caught his foot against what was a raised “tramline” that marked the playing area of the court. 

Five witnesses contradicted the evidence of the plaintiff/appellant, saying when he fell he was not near the tramline. Instead, there was evidence that he tripped over his own feet and fell on his back. 

Balla dismissed the claim. Contrary to the submission of Hart, the rejection of the appellant’s evidence did not imply a finding by the primary judge that Passmore had fabricated his case. It was simply a finding that his belief that he fell after tripping on the line was mistaken. 

The case was called on October 24 last year and Hart advised the trial judge that his client could not proceed because he might now need a tutor because of the plaintiff’s injuries. 

Balla asked for medical evidence of the extent of his injuries before she adjourned the case. Later Hart said the case had been settled against the first defendant, the Maitland City Council. 

The judge gave detailed reasons dismissing the adjournment application, saying the evidence advanced was insufficient and querying how the plaintiff could give instruction to settle against the first defendant if he lacked capacity.  

Appeal judge Richard White said that the appellant’s written submissions did not demonstrate any error in the primary judge’s exercise of discretion. Before he dismissed the appeal he drew attention to remarks in the primary judge’s reasons:

“During the trial counsel for the plaintiff on occasions acted and spoke inappropriately. 

This is illustrated by his apologies at transcript 29.45, 355.18 and 383.15. 

I have decided this case on the evidence before me and have not allowed the conduct of counsel for the plaintiff to affect me in my consideration and determination of the issues. 

This of course does not extend to his forensic decisions made during the trial e.g. whether or not to cross examine on an issue or tender a document but only to the manner in which he spoke, whether the words he chose were appropriately respectful to the court and to witnesses and the manner in which he moved his body.”  

White JA made his own remarks about Hart’s conduct: 

“The primary judge was sorely tried by the way Mr Hart conducted the hearing. He refused to accept her Honour’s rulings on evidence, cut off witnesses’ answers, and sought to justify inadmissible questions on the basis that the question was ‘critical’. 

He accused the primary judge of denying his client procedural fairness because her Honour had rejected objections he made to questions asked by Mr Cummings SC who appeared for the [Maitland City Tennis] Club, but upheld objections made by Mr Cummings to questions he asked. 

The fact that the questions he asked, to which objection was taken, were inadmissible, but the questions to which he took objection were not, did not deter him from making that submission. 

The primary judge had to reprimand counsel on a number of occasions for his rudeness. There was nothing about the subject matter of the trial that should have led to the tensions that evidently arose, if the trial had been conducted by counsel acting competently and courteously. Mr Hart displayed neither quality. 

It is to the credit of the primary judge that she interfered from time to time with his questioning to attempt to get counsel to the point. The case took longer than it should have. That was not the fault of the primary judge, nor the fault of counsel for the respondents.

The primary judge conducted the hearing with admirable patience and appropriate firmness in her attempt to control the appellant’s counsel.” 

Ronnie Sackville AJA endorsed these observations and so did Basten JA. 

In Victoria, an elderly golfer has settled his damages case against the Kew Golf Club – but not before he had to beat off an application from the defendants to disqualify his barristers from appearing. 

Ian Huntington, 85, a former Sheffield Shield cricketer and VFL umpire, was injured at the club by a falling cypress tree in August 2013, rendering him a paraplegic. 

Earlier this month Rita Zammit in the Vic Supreme Court tossed out an application by the club that barristers Tim Tobin SC and Gary Clark be restrained from appearing for the plaintiff. 

The club argued that following a view of the site of the injury near one of the fairways there is a real possibility that Tobin and Clark may become witnesses in the case. 

At the view were Ted Stirling, who was retained by the plaintiff’s solicitors to provide an expert opinion on the circumstances of the accident, Lily Boskovski, the plaintiff’s solicitor, the defendant’s lawyers, David Loughnane the club’s general manager, along with Tobin and Clark. 

Before the view Tobin and Clark met Stirling in the clubhouse and had a cup of tea. Stirling was questioned about his expertise in relation to golf clubs and told about what material was available to him. 

The judge said that before the view began the discussion was limited and the chat was mainly about golf. 

Stirling sent an email in September last year to Jenny Bilir, an employee of the plaintiff’s solicitors, in which he said that when they met for the view Tobin “had some quite intimate knowledge as he is also a member of the Kew Golf Club. Both chaps were quite forthcoming with the information they possess re the accident …”. 

Lily Boskovski replied: 

“Being a member of the golf course [Tobin] does have a lot of information regarding the aftermath of the accident. Ian [the plaintiff] was a big contributor to that golf club with a lot of people knowing who he was.” 

James Hand, solicitor acting for one of the defendants, deposed that this correspondence raised concerns whether Tobin provided information which Stirling had relied on in forming his opinion. 

The defendants submitted that pursuant to the Legal Profession Uniform (Barristers) Rules counsel must refuse a brief or instructions to appear if “the barrister has reasonable grounds to believe the barrister may, as a real possibility, be a witness in the case”. 

Because there were no contemporaneous notes taken of what was said at the view the defendants said it is inevitable that not only will Stirling be cross-examined about the basis of his opinion, there is a real possibility that Tobin and Clark also will be called about the content of the discussions. 

For Tobin and Clark to continue in the case would result in a waste of the court’s time, resources and costs. 

The two barristers submitted to Zammit that the likelihood they would be required to give evidence is negligible. They have been acting in the proceedings for years and that Stirling had no “intimate knowledge” beyond what the lawyers already knew. 

Further, it would be a significant prejudice to the preparation and presentation of the case if Tobin and Clark could not act. 

Zammit agreed, saying that there wasn’t a real possibility the barristers would be required to give evidence and that Huntington should not be deprived of the counsel of his choice. 

As it turned out, Huntington scored a hole in one when the defendants settled. He had wanted $1 million in damages and said that because of his injuries he and wife Marie could no longer take their annual holidays in Noosa.