JUDGE BULLIES LAWYERS DURING HEARING AMOUNTING TO AN UNFAIR TRIAL

ADACOT & SCOWLE 

[2020] FamCAFC 215

This is an appeal of a judge’s order in a family law case. One of the parties is accusing the judge of bullying and for abusing his judicial position. He alleges that the judge’s excessive judicial intervention prevented him from getting a fair trial.

Facts: Judge Andrew of the Federal Circuit Court made parenting and property settlement orders in proceedings between Ms. Sowle (“the mother”) and Mr. Adacot (“the father”). The father appealed the order alleging that the judge’s conduct towards the father’s legal representatives in the trial gave rise to an apprehension of bias and robbed the processings of any semblance of fairness. It was contended that during the trial, which lasted for three days, the judge was critical, dismissive, sarcastic and rude to the father’s Queen’s counsel and solicitor.

Issue: Is there excessive judicial intervention amounting to an unfair trial? Did Judge Andrew bully the solicitors? Did he abuse his judicial position?

Law: Everyone is entitled to a fair trial. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.

Analysis:

• During the first day of the trial, the primary judge concluded the day complaining that the father’s Queen Counsel had wasted the day when in fact, according to the transcript, at almost no time did Queen’s Counsel for the father speak more than about three sentences before being interrupted by the judge. 
• On the second day of the trial, the primary judge required the father’s lawyers to file a written application dealing with some procedural matters. These were filed by the father’s lawyers but the judge regarded it as unsatisfactory and he stood the matter over until the third day. 
• On the third day of the trial, the primary judge took issue with the presentation and appearance of the father’s Queen’s Counsel. The father Queen’s Counsel sought a leave to withdraw which was granted. The father’s solicitor took over and he was also bullied by the judge. The primary judge kept interrupting him during the hearing and he was also criticised as a waste of the primary court’s time.
• The court also gave specific examples of the primary judge’s behaviour towards the father’s lawyers which demonstrated judicial bullying. 
• First, the primary judge impugned the honesty of the father’s Queen’s counsel by characterising a mistake made by the father’s Queen’s Counsel as an untruth. This accusation by the judge was the subject of several jibes addressed to the father’s Queen’s Counsel during the rest of the hearing. Judge Andrew kept questioning the integrity of the father’s Queen’s Counsel and referred to the dishonesty he committed in the beginning of the hearing.
• Second, the primary judge criticised the professionalism of the father’s Queen’s Counsel not only for the preparation and presentation of the matter, but also the Queen's Counsel’s conduct in court, dress, and demeanour. The primary judge criticised the father’s Queen’s Counsel for not speaking when he was only waiting for his turn to speak, however, he was reprimanded by the Judge during those times when he was about to speak. He was also criticised for not bowing when his Honour entered the courtroom.He was also criticized for his preparation. Judge Andrew kept saying “keep assisting me, Mr. Page” in a sarcastic tone which was repeated on a number of occasions throughout the trial. 
• On a number of occasions, the primary judge was apparently affronted by the behaviour of the father’s Queen’s Counsel,although it is difficult to understand quite what the problem was and it is quite apparent from Queens Counsel's responses that he too was unsure what transgression he had committed. The court found it difficult to understand what transgressions were committed by the father’s Queen’s Counsel because the primary judge’s criticisms were couched in oblique terms such as “that’s a further amplification of your behaviour”, “you’re running very close” and “you know exactly what you just did.” 
• Third, the primary judge used rude and intemperate language towards the father’s Queen’s Counsel. When the father’s Queen’s Counsel submitted an application and an affidavit to the primary judge, the primary judge referred to it as garbage, absolute garbage. Judge Andrew has also said “pathetic” referring to the father’s Queen’s Counsel.
• On three occasions when attempting to make submissions, Queen’s Counsel took his Honour to a particular place in a document and read the commencing words aloud –and hisHonour remarked “I can read English”.36On another occasion his Honour referred to a paragraph in an affidavit,and in response Queen’s Counsel attempted To read out part of the paragraph to the primary judge and his Honour interrupted to instruct Queen’s Counsel not to read the passage to him.
• On a number of occasions his Honour asked Queen’s Counsel to “[a]ttend”. 
• Fourth, Judge Andrew hectored, bullied, insulted, and demeaned the father’s solicitor. After the withdrawal of the father’s Queen’s Counsel, the solicitor replaced him. In one occasion, the primary judge and the father’s solicitor had a miscommunication  and his Honour asked the father’s solicitor whether he was “attending.” 
• On one occasion, his Honour announced to the court in general that “[t]here’s a cognition issue somewhere here, and it’s not on this side of the bench.” referring to the father’s solicitor. Apparently, this statement was made because there had been an internal error in the numbering in one paragraph to a reference to another paragraph in some draft orders. However, this is not an uncommon error.
• When the father’s solicitor attempted to explain the circumstances of the father’s non-attendance, he was constantly interrupted by the primary judge and claimed that “the father has just been swanning around down the Gold Coast”.

Held: The nature, intensity, frequency and content of Honour ’s interruptions, criticisms and ad hominem attacks on Queen’s Counsel for the father drive the conclusion that the fair-minded observer might apprehend that the primary judge might not bring an impartial mind to the determination of the issues as they impacted the father’s case. The court concludes that the primary judge, by his conduct, squarely raised an apprehension of bias and failed to afford the father a fair trial. Hence, the court allowed the appeal and remitted the proceedings to the Federal Circuit Court for a rehearing by a judge other than Judge Andrew.