Etiquette

Posted on Aug 24, 2016 | 0 comments


etiquetteWilson v Department of Human Services – re Anna [2010] NSWSC 1489 was a particularly nasty case in the parens patriae jurisdiction of the NSW Supreme Court which has become better known for the comments of Palmer J about misplaced courtesy in court:

106 The second matter calling for comment occurred in the conduct of the case in this Court but it is not peculiar to this case – it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this Court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.

107 Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.

108 Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this Court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.

109 More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.

…..meanwhile, in the High Court, the transcript of the show cause hearing in Plaintiff M89/2013 starts with:

PLAINTIFF M89/2013 appeared in person.

MR J.D. BROWN: Good morning, your Honour, I appear for the first defendant. (instructed by Australian Government Solicitor)

Creative commons acknowledgement for the photograph.

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