Conduct Unbecoming

Posted on Mar 28, 2012 | 1 comment


unseemly

Many readers would be aware that there are a number of cases winding their way through the court system involving former clients of the firm Keddies making allegations of overcharging. In one of those cases, contempt proceedings were commenced in relation to an alleged breach of an injunction not to approach former clients. Things got a little heated at the hearing and an application was made for the judge to disqualify himself. He refused and the recusal application went to the Court of Appeal (Barakat v Goritsas (No 2) [2012] NSWCA 36). Although the appeal was dismissed there are some transcript extracts in the judgment which show how bad it was – like the following at [51]:

HIS HONOUR: Whatever I ruled on Friday does not affect the present matter. The present matter as I see it is simply – please do not interrupt me.

BRANSON: Your Honour need not raise your voice, I am concerned at the lack of procedural fairness –

HIS HONOUR: Sit down.

BRANSON: No I won’t. Is your Honour going to look at my procedural fairness now?

HIS HONOUR: You are being impudent.

BRANSON: Are you going to give me an opportunity to –

HIS HONOUR: Mr Branson, leave my court.

BRANSON: I won’t.

HIS HONOUR: Get the officer please.

BRANSON: Your Honour has gone far too far.

HIS HONOUR: I have never had a situation where counsel has … interrupted me and when I asked him not to gives me a slogan. Of course I afford you procedural fairness Mr Branson, I am simply stating the issue as I see it and I will not be over talked. Now you apologise or leave.

BRANSON: I want to know if I am able to read the affidavits before Mr Stitt advances the matter any further please.

HIS HONOUR: When you apologise Mr Branson.

BRANSON: Your Honour how can I apologise when I make a submission as senior counsel that I wish to seek instructions about these affidavits? Your Honour just says oh well, I will deal with it anyway?

HIS HONOUR: I have not said that.

BRANSON: You did, with respect.

HIS HONOUR: I said I wanted an answer to a simple question, I am not going to engage in an argument with you. There is a relationship between Bench and Bar, hopefully of mutual respect, but it requires counsel not to interrupt and not to berate a judge and I will not be berated and you apologise or –

BRANSON: I will not apologise….[and on it went]

I think Basten JA is the master of understatement in saying at [53]: “The exchange was, at best, unseemly”!

Creative commons acknowledgment for the photograph.

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