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Court in the Act
21 October, 2009  
Adventures in litigation

Judges’ associate Ginger Snatch has been ringside at some recent exciting court cases … A splendid display of Tourette’s Syndrome … The arrival of badly needed competition for the Competition Tribunal … Doubts about lawyers’ ability to give impartial evidence in cases where they are acting for companies in which they have an interest

imageOn February 26, 2007 Justice John Perry in South Australia dismissed two applications by Markham Wayne Moore-McQuillan in relation to WorkCover proceedings.

He was greeted with this spray:

Moore-McQuillan: Thank you for being an arsehole and thank you for being prejudicial and thank you for being a cunt.

His Honour: That’s enough from you.

Moore-McQuillan: Hope you have a good fucking retirement you stupid fucking idiot. Thank Christ we are getting rid of a fucking cunt like you.

Witnesses in the court at the time attest that Moore-McQuillan also said that the judge was “corrupt”, but that didn’t make it onto the transcript.

Moore-McQuillan was charged with contempt.

On June 4, 2007, in proceedings for an adjournment of the contempt hearing, Moore-McQuillan was asked by Justice Margaret Nyland whether he would do his best to curb his “querulous” behaviour.

He responded: “I have always tried to do that.”

On November 20, 2007 Justice Nyland found Moore-McQuillan guilty of contempt.

She also found that he had referred to Justice Perry as “corrupt”.

He was sentenced on April 17 last year to a three-month suspended sentence conditional on his being of good behaviour for 18-months.

Less than a month later in the Workers Compensation Tribunal on May 12, 2008, Moore-McQuillan lost his temper with Owen Downs, counsel for WorkCover.

Moore-McQuillan: Listen, you just shut the fuck up and fucking sit down and don’t be a dickhead and instead of fucking turning around and dictate the terms—-

His Honour: That’s—-

Moore-McQuillan: I’m talking to you and I don’t need this fuckwit interrupting.

His Honour: That is enough, Mr Moore-McQuillan.


Moore-McQuillan: I don’t think so. Why doesn’t Downs tell us what his fucking instructions to—-

His Honour: Mr Moore-McQuillan, stop it.

Moore-McQuillan: You lying piece of shit. Now, sit down, you dick-face.

He also accused both the presiding officer and Downs of bias.

On September 4 the Full Bench of the South Australian Supreme Court (Justices Bleby, Gray and Layton) held that Moore-McQuillan’s “behaviour was undeniably a failure to be of good behaviour”.

His application for an extension of time to appeal against the contempt conviction was dismissed.

Sadly, John Perry died shortly after he retired.

* * *

imageOn the last day of September the steady drone of the Australian Competition Tribunal was interrupted.

Justice Ray Finkelstein was into day three of an application involving various mining companies – Fortescue Metal Group, Robe River Mining, Hamersley Iron and BHP Billliton.

Alan Archibald QC was on his feet for The Big Australian when Slavica Zegarac entered the courtroom.

“This is my case,” she declared.

Justice Finkelstein thought that she might be in the wrong court.

Zegarac: No, I’m not. Are you Finkelstein J?

His Honour: Yes, that’s me.

Zegarac: Yes, that’s my case.

His Honour: I should have said ‘no’.

The Fink helpfully tried to clarify the nature of the proceedings for the new arrival.

His Honour: It’s about—-

Zegarac: What it’s all about? I’m asking you.

His Honour: Okay. Well, it’s about trains. Trains.

Zegarac: Trains. Yes, I know. You keep on changing the companies name every single time you have the hearing. I know. How many times has it been changed?

His Honour: The name? No, no.

Zegarac: Yes.

His Honour: But do you own any trains?

Zegarac: Excuse me, that’s your obstruct language – how?

His Honour: Locomotives.

Zegarac: It doesn’t matter. I understand what you said; however, it is my case. All these companies, bogus companies that are created in my name, under my name, they don’t exist, and this is all designed to get the money from the insurance from the government.

His Honour: Yes, I don’t think they’re after insurance in this case.

Zegarac: Well, what is it in this case then?

His Honour: This is about trains.

Zegarac: No, no, no, no.

His Honour: Yes, yes.

Zegarac: No, no.

His Honour: I promise.

Zegarac: They’re not real trains.

His Honour: Yes, no—-

Zegarac: It’s just called that.

His Honour: No, no, I saw one.

The judge explained to her that “these people are paying a lot of money for their barristers to do a lot of talking”.

Ms Zegarac insisted that this was her case.

She wanted to know why she wasn’t invited and what the barristers were doing there.

Zegarac: All these people, who are they? Who are they?

His Honour: They’re my friends.

Zegarac: I know the term for the friends. Yes, yes. They’re all friends who are in it for the money—-

In my view, all perfectly sound submissions.

The transcript has MORE

* * *

In Paino v MDN Mortgages Pty Ltd Justice Carolyn Simpson restrained a solicitor, who held a financial interest in the defendant company, from acting on behalf of the company in litigation.

David Bruce Magney of Magney & Magney was the solicitor representing MDN.

He is a director of MDN Mortgages and holds an 80 per cent shareholding in Magney Superannuation Pty Ltd.

Mary Jane Magney, who “may be assumed to be closely related to Mr Magney”, holds the remaining 20 per cent share.

Magney Superannuation Pty Ltd holds 25 per cent of the shares in MDN.

The shares are $1 shares, but the court held that “the paper value of the share is of no relevance to the real financial interest of Mr Magney in the outcome”.

Cecelia Maria Paino, who while acting under a power of attorney from her elderly mother, secured a number of mortgages over her mother’s house in order to meet expenses associated with her mother’s medical treatment.

MDN provided mortgage number six.

Paino signed a false declaration stating that the purpose of the loan was “predominantly for business or investment purposes”, removing the loan from regulation under the Consumer Credit (NSW) Code.

Ms Paino claims that MDN, notwithstanding the declaration, had reason to believe that the loan was likely to be used for personal, domestic or household purposes and not for business or investment purposes.

She also claims that the contract was unjust under the Contracts Review Act 1980.

Mr Magney is likely to be a material witness in the proceedings.

Justice Simpson said that she did not think that the “mere fact that he is potentially a material witness is a sufficient reason to make the orders sought”.

She continued:

“However, the cases also establish that the important role of the solicitor as officer of the court requires, not only that the solicitor give truthful evidence to the court if called as a witness, but also that he or she give objective and impartial advice to the client.”

Justice Simpson held:

“Mr Magney’s personal interest in the outcome is such that, if he were to continue to act, the court may be deprived of relevant objectivity in the preparation and presentation of the case.”