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14 August, 2007  
The money and the bench

The strange case of the ex-judge who sued his accountant. Did Terry Christie really think he’d be better off swapping the bar for judging? Then there was a little matter of apprehended bias

imageSydney barrister Terry Christie was sounded out at least five times to join the bench at the NSW Dizzo before he finally said “yes” in September 1993.

The first inquiry came in late 1992 or early 1993 and he said:

“Not at the moment but in due course I could be interested.”

“In due course” happened pretty quickly because a fortnight later (Smiling) Jim Staunton, then the chief judge of the Dizzo, also approached him – only for Christie to decline a second time.

In mid-1993 the famous silk received a third overture and again he said “no”. Then there was another invitation and still he wasn’t available.

In late August 1993, the fifth occasion in eight months, he was approached and he must have thought they were so desperate to have him that he asked Nigel Purves, his accountant, whether it was worth the money?

Nigel gave it the thumbs up, confirming what we all know about the generosity of judicial super:

“It will certainly take you a good while to put in for superannuation the sort of money you will receive from a judicial pension.”

In 2003, Christie retired at age 61, having done 10 years on the bench, but it seems the full judicial pension wasn’t enough for him. As we know, Terry sued Nigel for his advice and the NSW Court of Appeal has just upheld acting judge Barrie Hungerford’s 2006 decision to reject the much sought-after silk’s claims in negligence.

Christie’s actions against his former accountants were threefold: loss of income arising from the advice that it was to his financial benefit to cease practising as a barrister and become a judge, mucking up his tax returns and failing to reduce his tax liability and, thirdly, the cost of retaining another accountant to sort out Purves’s mess.

The loss of income component had two streams: the advice to accept the appointment and negligence in preparing tax returns (mostly for years before Christie went to the bench), so that he ended up understating his income in the order of $1.3 million and being liable for additional tax of $660,000 for the years 1989 to 1994.

In accepting the appointment, Christie said that while the judicial salary of $137,771 was significantly below the imageincome he was then earning as a barrister, he believed he was financially secure. Apart from the family home in Mosman he had properties at Boomerang Beach and Thredbo, and $190,000 in superannuation.

His claims failed because they were found to be time-barred, and in relation to the loss of income it could not be proved that Purves’s negligence or misleading conduct caused Christie to accept the judicial appointment.

What does seem extraordinary is that appeal judge David Ipp, who was in the saddle on this one, made no criticism of the expectation that a judicial appointment should be a recipe for financial betterment.

A claim for economic loss based on “interruption to his stream of income” hardly assists public adoration of judges.

Christie’s argument was that he relied on the financial advice as the basis of accepting the appointment. Hungerford, at first instance, did not entirely accept that and said weight should be given to non-economic factors that attracted the plaintiff to joining the bench. As Ipp put it:

“I am satisfied that, although his Honour did not expressly say so, he took into account his assessment of Mr Christie’s personality and character in concluding that Mr Christie would have taken the appointment.”

No mention anywhere of the nobility of sacrifice that practitioners are expected to make when elevated?

imageAs it happens no harm seems to have come to Christie’s precious fortune. He has started a new life as a grazier with cattle on his $2.2 million worth of acres at Bowral in the NSW southern highlands and his wife has property on the north coast.

His mate, the NSW Attorney General, John Hatzistergos, seems to be doing the right thing, teeing-up jobs for his former head of chambers as deputy chairman of the NSW Parole Board and deputy president of the Mental Health Review Tribunal. Neither position was advertised.

The last time we heard of Terry Christie the High Court was raking over his conduct as the trial judge in the Antoun case. That was not a pretty sight.

The court overturned the convictions of the Antoun brothers for extortion and ordered a new trial on the ground that Christie had conducted himself in such a way:

“that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question whether the appellants ought to be convicted.”

The prosecution evidence was strong and Christie defiantly told defence counsel on several occasions that their “no case to answer” application would be refused before he’d even heard it.

The transcript is enlightening. At the trial before Christie, without a jury, Clive Steirn appeared for the accused Joseph Antoun:

Steirn: Well, your Honour, there will be an application tomorrow for no case to answer.
Judge: I see. Well that application will be refused. So how long then will the defence case take?
Steirn: How can your Honour possibly come to that view without having heard one word from either me or Mr Wilkinson?
Judge: Because I’ve closed the Crown case, and I have just said it.
Steirn: But you’ve heard not one word of any submission by either of us upon either the law or the fact.
Judge: No. I’m simply telling you the application will be refused. I perceive what’s in the Crown case, I perceive there’s a case to answer. Whether it be answered or not is entirely for …

Next morning, when the court resumed, both counsel for the defendants asked that Christie disqualify himself. He summarily rejected the application and in doing so said that a no-case application was “doomed to failure”.

While that proved to be correct, in (Smiler) Gleeson’s view, it was the manner in which it was done that gave rise to an apprehension of bias.

Steirn again asked for the judge to disqualify himself.

Steirn: What I was about to say, your Honour – this is a fresh application based specifically on what your Honour just said in using the words a no case to answer submission ‘cannot succeed’. That’s what your Honour …
Judge: That’s exactly what I said.
Steirn: Your Honour has said that again without hearing from either of the accused.
Judge: Precisely. That’s what I said yesterday. So now I’m in a position to hear your submission as to no case.
Steirn: My submission is that if your Honour is of that view still then it would be pointless in making a no-case submission at this stage.
Judge: It’s entirely a matter for you, Mr Steirn.

imageAfter Antoine Antoun gave evidence in his defence and before the defence case had closed Christie said he had formed …

“a very strong preliminary view in this case, very, very strong, to a stage where I am considering, indeed have almost made up my mind of my own motion, to revoke bail.”

Steirn: Your Honour, with great respect, your Honour would be falling into appealable error.
Judge: That’s possibly correct. It’s a risk I’ll run.
Steirn: Your Honour, it’s quite, your Honour …
Judge: It’s a very, very unusual step, Mr Steirn …
Steirn: It’s extremely unusual.
Judge: You would not need to convince me of that. It’s a very, very unusual step.
Steirn: Especially when your Honour has not heard the rest of the Crown case, and especially when … Well your Honour, given your Honour’s views, given the way with great respect to your Honour, your Honour has conducted yourself in this trial and given what has fallen from your Honour’s lips immediately before I make this submission, I respectfully ask your Honour yet again to disqualify yourself from the hearing …
Judge: I realise …
Steirn: Let me finish please, from hearing the rest of this trial because in my respectful submission it is now turning into a travesty.

You wonder why they were so desperate to get him on the bench back in 1993.


Reader Comments

Posted by: Anonymous
Date: August 15, 2007, 9:20 pm

Re Terry Christie. He took the last offer for elevation because he had - or thought he had, as he never actually confirmed it - a heart attack. He was to appear before Badgery-Parker in the Supreme Court in a PI claim that day and woke very early with chest pain. His wife took him (or he went in an ambulance) to hospital. He was off for some time. Very shortly after he took the appointment. Everyone knew that it was because he thought his health had packed it in. He was a heavy smoker and drinker, of course. I was on his floor and we all adored him.