Senior bar figures and solicitors in the dock for contempt … Alleged breach of suppression order … Shoe on the attorney general’s other foot … Skirmishes with a long history … Janek Drevikovsky reports 

Senior Bar Council figures, including former president Michael McHugh SC and former executive director Greg Tolhurst, were also slapped with contempt charges, as were lawyers who acted for the council, namely Patrick Griffin SC and eight partners at lawshop Hicksons. 

Most of the alleged contempts relate to a 2019 court battle between the Bar Council and the nameless prosecutor, known only as “Z”, where she complained she had been wrongfully denied a brief’s ticket. 

An admitted solicitor, Z was on track for a career of briefdom, passing the bar exam and completing the baby barrister training course. 

But then the Bar ‘n’ Grill learnt that Z had long ago been diagnosed with paranoid schizophrenia and, what’s more, had undergone forced treatment thanks to an order of the Mental Health Review Tribunal. No barrister’s certificate was forthcoming. 

That was despite a 2015 Court of Appeal decision quashing the tribunal’s treatment order – a decision which also forbade any future publications and disclosures that would identify Z.

The suppression order was the basis of the contemptuous mess soon to unfold – because, in conducting their 2019 dispute, the Bar Council identified Z as the unnamed applicant in the 2015 mental health case, potentially breaching the order. 

Apparently, it was neither here nor there that Z also identified herself in some documents she handed to the 2019 court. 

Several judgments also made their way online, connecting Z’s real name with the 2015 proceedings, and there was even an article in The Australian about the affair in 2020.

In the 2019 litigation, the Supreme Court sided with the Bar Council, refusing to let Z onto the briefs’ carousel. So instead Z set her sights on the breach of suppression. 

Representing herself, she launched a contempt prosecution in the Court of Appeal, the court which had first invoked suppression way back in 2015. 

Newly-minted appeal judge Jeremy Kirk had to decide whether any of Z’s contempt charges should proceed – or whether the whole lot should be thrown out. 

The NSW AG, Mark Speakman, was in the crosshairs because his predecessor was a party to the 2015 mental health proceedings. 

No incarnation of the AG was involved in the 2019 proceedings, however – the proceedings where the orders were allegedly violated. There was no suggestion the AG had personally breached suppression.

Instead, Z argued Speakman had a “duty” to prevent breaches, for example by halting online publication of the 2019 judgments or by restraining the Supreme Court Registrar from giving access to the unredacted 2015 files.  

According to Z, the AG’s failure to do so was an interference  with the administration of justice and also scandalised the court.

Kirk JA was unmoved. it was emphatically not up to the AG to tell judges and court staff what to do. Nor was there any duty on the first law officer to prosecute every potential contempt of which he became aware. 

By not prosecuting a contempt, the AG cannot himself be in contempt. 

The charges against Speakman were summarily dismissed.

Z had equally poor luck with most of the Bar Council defendants. 

First, she claimed that McHugh SC (Bar ‘n’ Grill VP during the 2019 proceedings) allowed the council to violate the suppression. But McHugh was personally uninvolved in the 2019 case and, judging by Z’s charges, it was unclear whether he even knew about the order. The allegations had to be struck out. 

The same went for her case against Greg Tolhurst, whose alleged sin was swearing an affidavit in support of a Bar Council application to vary the suppression order. That was no contempt, his Honour found. 

Z’s only success was with Patrick Griffin SC, barrister for the council in 2019. The charge was that Griffin, who knew about the suppression order, had tendered documents connecting Z’s real identity to the 2015 case. 

Kirk JA accepted these charges were good in law, though he dismissed other charges against Griffin (for instance that the brief “allowed” the court to publish decisions identifying Z). 

Z’s case against Griffin could therefore proceed, though his Honour was guarded about the chances of a win: 

“I note that my conclusion that the charges against Mr Griffin should not be dismissed says nothing as to the likelihood of those charges succeeding, let alone leading to any penalty even if they did succeed.”

Z v Mental Health Review Tribunal (No 2)