judge terror

When you include a page upside down in a bundle.


An Australian appeal court has ruled that a judge was "cruel, insulting, humiliating and rude" towards a barrister and a solicitor who were trying to present a case to him.

Brisbane barrister Graeme Page QC and solicitor Michael Dwyer were representing a father in a custody hearing when they were subjected to the demeaning treatment by Judge Guy Andrew in the Federal Circuit Court.

The duo discovered they were in trouble when Judge Andrew asked Page QC if he was ready, and the barrister replied that he had been waiting for "his turn" to speak.

"It is fair to say that from this point the orderly conduct of the proceedings degenerated", noted the appeal judges. "At almost no time did Queen’s Counsel for the father speak more than about three sentences before being interrupted by the primary judge".

Judge Andrew began by repeatedly suggesting that Page QC was lying to him. When the barriser finally objected that "I haven’t at all given any untrue statement to the court", Judge Andrew snapped at him, "Don’t verbal me".

Judge Andrew then quizzed the pair obsessively on the whereabouts of their client, even though there was no apparent issue between the parties as to where the father and his child were.

JUDGE ANDREW: Tell me where [the father] is right now.

PAGE QC: He’s on the Gold Coast with his-

JUDGE ANDREW: Doing what?

PAGE QC: With his daughter.

JUDGE ANDREW: I’m going to stand the matter down shortly.

PAGE QC: Your Honour, before we left court yesterday, we-

JUDGE ANDREW: Where is he right now and what is he doing?

He finished the day by admonishing Page QC for turning a "very simple matter" into "a Punch and Judy Show" which was "like a really bad Monty Python skit".

Before evidence was presented on the second day of the hearing, Judge Andrew asked whether there were any irregularities in a document. Page QC was foolish enough to check if the question was being directed at him, or the mother's counsel. 

JUDGE ANDREW: I was speaking to you, Mr Page. Do not be obtuse or rude. Try and improve from yesterday. Your performance was disgraceful. Answer my question.

PAGE QC: Could you repeat the question, please?

JUDGE ANDREW: Pay attention to me.

PAGE QC: Yes.

JUDGE ANDREW: Please do that. Respond.

PAGE QC: Could I - would you be good enough-

JUDGE ANDREW: Respond, Mr Page. I asked you to pay attention to me. Please respond.

PAGE QC: I can’t answer the question because I’m not-

JUDGE ANDREW: No. No. I asked you to pay attention to me.

PAGE QC: I will, your Honour. Yes.

JUDGE ANDREW: Thank you. That only took three times today. 

It transpired they were looking at different documents, prompting the judge to tell Page QC that the barrister has "made a mess of that request", concluding, "This is pathetic". 

Judge Andrew shared his disgust at the barrister’s application with Peter Baston, the mother's counsel.

JUDGE ANDREW: That’s garbage. Have you seen this, Mr Baston?

PAGE QC: I haven’t.

JUDGE ANDREW: Hand this to Mr Baston. That is absolute garbage.

The appeal judges noted that, "Seizing the opportunity", Baston "sought an order that the father pay the mother’s costs of the application".
 
That afternoon, Page QC made the mistake of sticking up for himself, briefly.

JUDGE ANDREW: There should have been two applications; it’s what I directed this morning. It’s a further example of what I was talking about when we opened play this morning, Mr Page; you remember that?

PAGE QC: I will never forget that.

JUDGE ANDREW: I beg your pardon?

PAGE QC: I will not forget it, your Honour.

JUDGE ANDREW: What was it?

PAGE QC: I can’t recall at the moment-

JUDGE ANDREW: What was it? You’ve said that you will not forget it?

PAGE QC: You said that I was 'a disgrace'-

JUDGE ANDREW: Wasn’t that.

PAGE QC: - and I will never forget that.

JUDGE ANDREW: Yes, right. Good. Now, address what it is that I’m talking to you about, rather than having your own shot. I notice that you stand a little bit upright as if jolted.

On the third day, Judge Andrew pretended not to recognise the barrister, and asked him his name.

PAGE QC: ...Page, your Honour. I appear for the-

JUDGE ANDREW: Sorry - you’re who?

PAGE QC: Page.

JUDGE ANDREW: Is there anything else that I need to know about you?

PAGE QC: No, I...I appear for the [father].

JUDGE ANDREW: No, no. Is there anything else I need to know about you?

PAGE QC: Queens Counsel.

JUDGE ANDREW: Thank you very much. I thought we got through that on the first day. That’s a further amplification of your behaviour. Just continues...

At one point, Judge Andrew forced the barrister to present himself to Dwyer and Baston for inspection.

JUDGE ANDREW: Adjust yourself. Have a look. Your solicitor might be able to assist. Have a look at him.

PAGE QC: Yes.

JUDGE ANDREW: Attend to what I have just asked, Mr Dwyer. Have a look at your counsel. I’ve asked him to adjust. What would that be in relation to? I will ask you, Mr Page, look at Mr Baston for one moment. What would he need to attend to, Mr Baston?

Baston commented that his rival's jabot was untied. The appeal judges said they were "struck by the stark difference in the primary judge’s tone and terms of address" when he spoke to each of the barristers.

After enduring two more hours of misery on the third day, Page QC stepped down in order to "improve the atmosphere in the proceedings". But "it did not", said the appeal court. "If possible, his Honour’s conduct worsened."

Stepping up to the plate, Dwyer disgusted Judge Andrew within four words.

DWYER: Your Honour, I just wanted- 

JUDGE ANDREW: Just – just wait. You “just” – what does that mean?

DWYER: Can I just finish what I’m saying?

JUDGE ANDREW: No, no. What does “just” mean?

DWYER: Can I just finish what I’m saying, your Honour?

JUDGE ANDREW: I said, “What does ‘just’ mean?”

DWYER: It was the start of – there was something I wanted to actually say to you.

JUDGE ANDREW: I don’t understand what “I just” means.

DWYER: Your Honour, can I-

JUDGE ANDREW: No, no. Tell me what it means, Mr Dwyer.

DWYER: I don’t know what you’re saying to me, your Honour. I just want to-

JUDGE ANDREW: No, no. You uttered the words “I just” -

DWYER: I just wanted to-

JUDGE ANDREW: - and I then said, “What does ‘just’ mean?” What does it mean? It’s a simple question.

DWYER: It was-

JUDGE ANDREW: You uttered the word. You must know what it means.

DWYER: It was part of a phrase I was going to say – I just wanted to say.

JUDGE ANDREW: There’s no such thing as “I just”. You either do or you don’t, correct?

DWYER: That’s not what I meant to say.

JUDGE ANDREW: Correct? That’s what came out of your mouth.

DWYER: Your Honour, it’s taken out of-

JUDGE ANDREW: That’s why I asked. I need clarity. I need particularity.

DWYER: Yes.

JUDGE ANDREW: What does “‘just” mean?

DWYER: It was part of a phrase to-

JUDGE ANDREW: What does it mean?

DWYER: I know what it means.

JUDGE ANDREW: I beg your pardon?

DWYER: Just-

JUDGE ANDREW: What did you just say to me?

DWYER: I know what it means, your Honour.

JUDGE ANDREW: Well, tell me what it means.

DWYER: It means just.

JUDGE ANDREW: Don’t be impertinent, Mr Dwyer. I’ve asked you what does it mean.

DWYER: What does – what does “just” mean?

JUDGE ANDREW: Don’t ask me the question that I’ve asked you.

DWYER: Your Honour, I don’t-

JUDGE ANDREW: Please, don’t insult my intelligence, Mr Dwyer.

DWYER: I’m not insulting you. Your Honour, I just wanted-

JUDGE ANDREW: There we go again. What does it mean?

DWYER: Can I – your Honour-

JUDGE ANDREW: No, no. What does it mean?

DWYER: Your Honour, may I start again, please?

JUDGE ANDREW: No, no. It doesn’t mean anything to me. Don’t look askance, Mr Dwyer. On the record I will note your demeanour, looking away, looking down.

DWYER: It’s one of-

JUDGE ANDREW: Keep going, Mr Dwyer.

DWYER: May I start again, please, your Honour?

JUDGE ANDREW: Keep going, Mr Dwyer.

DWYER: Your Honour, I just wanted to raise the issue that the document you asked-

JUDGE ANDREW: What does “just” mean?

DWYER: Just there. Just – just – just made it. It’s an adjective. It’s to go... it’s meant to go with another word. “Just in time” or "Just made it”, for example. 

By now a sweaty mess, Dwyer was taken to task for almost anything he did or didn't do, including the perception that he failed to keep his gaze fixed upon the judge.

JUDGE ANDREW: How is it, in a case outline document where there’s only – looking away, for the record.

DWYER: I’m not looking away, your Honour.

JUDGE ANDREW: Yes, you were.

DWYER: I haven’t looked away.

JUDGE ANDREW: I factually saw you doing that. That’s why I put it on the record.

Judge Andrew was openly sarcastic when Dwyer sought to help the judge identify a document handed up by a clerk.

DWYER: Can I assist, your Honour?

JUDGE ANDREW: He’s following, you see. He has been following play. Let’s test that, shall we, just how much he follows play. What document do you reckon he should have given to me, Mr Dwyer?

DWYER: The order of 13 December and the order of the 11-

JUDGE ANDREW: Of what year?

DWYER: 2018, and the order-

JUDGE ANDREW: Halleluiah.

DWYER: Yes.

JUDGE ANDREW: I wonder how he did that.

In a particularly degrading episode, Judge Andrew insisted Dwyer take a time out before speaking.

JUDGE ANDREW: I will give you 30 seconds on the clock before I want you to speak. That will indicate to me that you’ve – what was that?

DWYER: A cough, your Honour.

JUDGE ANDREW: Course it was. That will give you the opportunity to think.

DWYER: I don’t-

JUDGE ANDREW: Yes. Another time will probably convince me.

JUDGE ANDREW: Your Honour, it’s agreed-

JUDGE ANDREW: I said I would give you 30 seconds before you speak.

DWYER: I don’t need 30 seconds, your Honour.

JUDGE ANDREW: Yes, you do.

DWYER: My-

JUDGE ANDREW: You’re being given 30 seconds.

DWYER: My answer is-

JUDGE ANDREW: Stop.

DWYER: Your Honour.

JUDGE ANDREW: That’s five seconds. Don’t be impertinent, Mr Dwyer. This is your moment to contemplate.

Judge Andrew also ordered the solicitor to remain standing when he decided the lawyer hadn't bowed to him.

JUDGE ANDREW: Everyone else can sit. You understand it has nothing to do with me, Mr Dwyer, don’t you?

DWYER: Yes, your Honour.

JUDGE ANDREW: What am I talking about?

DWYER: Your Honour, I thought I had bowed.

JUDGE ANDREW: What am I talking about? You immediately said, 'Sorry,' so you knew what you hadn’t done. What am I talking about? Please don’t try to divert my attention. I’m not a goldfish.

DWYER: Your Honour, I’m getting-

JUDGE ANDREW: What am I talking about?

DWYER: Your Honour, I’m getting lost with what you’re saying.

JUDGE ANDREW: What am I talking about?

By the end, said the appeal court, the judge by his own admission had left Dwyer "speechless" and "floundering to the point of admitting that he did not know" what the judge wanted him to say, and "feeling unable to make any meaningful submission in the matter".

JUDGE ANDREW: How old are you?

DWYER: I’m over 60, your Honour.

JUDGE ANDREW: Right. How long have you been in this game, Mr Dwyer?

DWYER: 25 years.

JUDGE ANDREW: Sit down. You’ve not been of any assistance to me at all. All you’ve done is waste the court’s time because of, effectively, your lack of preparation and your character. You need to do something about that, Mr Dwyer. Been keen to talk so far. For the record, Mr Dwyer is standing dumb.

DWYER: Do you wish me to sit down, your Honour? I don’t know what you want me to do.

JUDGE ANDREW: You’re not following any of this, are you, Mr Dwyer?

DWYER: Your Honour, what do you want me to say? I don’t know what your Honour would want me to say. I’ve done my best here today.

Baston argued that although Judge Andrew's comments may have been “forceful”, “dogmatic”, “ultra-formalist”, “interventionist” and “abrupt”, they did not raise an apprehension of bias because he reserved his criticism for the father’s lawyers, rather than the father himself. The appeal court disagreed and cited Judge Andrew repeatedly referring to the father “swanning around” the Gold Coast "in a most dismissive way".

The "nature, content and number" of Judge Andrew's interruptions, criticisms and ad hominem attacks on Page QC would indicate to an onlooker that he might not be impartial, found the appeal court. "Indeed, such a fair-minded observer might well think that his Honour bore significant animus towards Queen’s Counsel". Concluding that Judge Andrew's treatment of Dwyer was "hectoring, insulting, belittling, sarcastic and rude", the court allowed the appeal and ordered the proceedings to be reheard by another judge.

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Comments

ShootyMcShootyface 18 September 20 08:37

Sounds like Baston should have a long, hard look at himself and all.

We've all seen it when a Judge goes against Counsel (though maybe not this hard).

Providing it's not grotesque, the good oppos will roll with it, for fear of incurred the same displeasure, but not encourage it, and then commiserate with the target outside.

The absolute shits will revel in it. 

Anonymous 18 September 20 09:23

This is flat track bullying of the highest order. 

That section on "just" was pathetic by the judge.

Anon 18 September 20 09:52

I cannot believe I've just read this - that Judge has simply no business being in a Court Room.

The only thing I have seen come close is a UK High Court Judge who badgered the primary defendant (BA) about the entirely unrelated matter of why his bag had gotten lost of the flight back from I think it was Rome and refused to start a hearing (with about 10 different parties present and clearly eyewatering cost) until Counsel got the CEO of BA (presumably he meant IAG) on the phone to explain where his bag was... needless to say that Judge's tenure on that case going forward was limited and he decided to retire shortly before facing disciplinary proceedings for that conduct (that should give you enough info to Google all about it).

Also, agree with Shooty - Baston should be ashamed, I mean surely its embarrassing to "win" in those circumstances.  Whilst I appreciate that notionally you have to follow client instructions and try to advise in their best interests but... given that fighting that appeal is presumably going to lead to only more animosity between mother and father with the impact likely to be felt most heavily for the child involved, surely a responsible advocate would also want emotional matters like this to be dealt with in the right way and with calm heads, not stoking the fire.

Anon 18 September 20 10:59

Have some sympathy for Judge Andrew. Queensland barristers are notoriously stupid. 

Alwyne 18 September 20 11:05

Just shocking.  Must have been incredibly hard to swallow, and also it must be very difficult to retain any respect for a legal system in which a judge thinks this is a respectable or fair way to conduct proceedings. 

Dearie 18 September 20 11:05

That judge sounds ill, but no excuse for attacking a QC and solicitor like that 

Anonymous 18 September 20 11:57

He had just been recently appointed as a judge - clearly on a massive power trip and had no business being there. The Federal Circuit Court needs to review its appointment methods.

Magic grandad 18 September 20 12:13

Yeap it is appalling bullying but reminded me of appearing as counsel before judge advocates at courts martial (district court martiall) about 30 years ago in England and Overseas.

The judge advocates were often washed up colonial judges and had nick names given to them by prosecutors - jack the knife, seymasaurus etc. They used to go nuts at prosecutors and defence alike shouting and screaming... awful times.

Expat Barrister Advocate 18 September 20 13:05

I have always been proud of the quality of the Australian judiciary.  This makes me despair.  This oversteps the line so far that there is every argument that Judge Andrew should indemnify both parties' for the costs of the Appeal and the hearing before him personally.  He has been stood down for retraining.  No amount of retraining can patch over the amount of disrepute that type of personality will bring upon the profession.

Fred 18 September 20 17:15

I think this judge must be closely related to HHJ Bentley QC who used to sit in Sheffield

pumpkin 18 September 20 20:47

The rain it raineth on the just

and also on the unjust fella.

But mainly on the just because 

the unjust stole the just’s umbrella. 

Just a cnut 19 September 20 04:08

A dignified response from those subjected to the idiot power tripping judge.  He ought to be sacked.  

HelloOfficeByeByeOffice 22 September 20 13:52

Just wanted to say, what an absolute Womble.  Poor Page and what a shit Baston was.  Conjures up images of SLJ in Pulp Fiction: "Say what again...".

The Sheriff 22 September 20 15:11

Federal Circuit Court is the renamed Federal Magistrates' Court, so its not like the "judges" sitting on it are the cream of the Aussie legal profession.

Anonymous 25 September 20 06:59

Can I point out this joker's  BASE salary (i.e. the Judge) is just a touch south of $400k?

Add in various allowances plus 15.4% superannuation and this guy is making almost half a million bucks a year.

 

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