From Justinian, July 1992
Quick to anger slow to learn
THERE is something in the manner and style of Sydney District Court Judge John Lloyd-Jones that has seen him consistently wheeled before the Court of Appeal for a good spanking.
Take his finding that barrister Robert Toner [now HH Toner DCJ] was in contempt for shouting at him during a personal injuries case.
He reprimanded Toner “in the strongest possible terms” and said he would refer the matter to the bar council.
The Court of Appeal ended up revoking Lloyd-Jones’ finding of contempt and dismissed the charge.
The appeal court also had earlier overturned a judgment by Lloyd-Jones in favour of a motor victim because the judge had conducted the case from the bench.
He asked the plaintiff 97 questions, many of them leading, compared to her counsel’s 88 and clashed with defence counsel Richard Royle, whom he accused of being grossly offensive.
It was held that because of Lloyd-Jones’ behaviour the case had miscarried.
But in the subsequent case, Toner was acting for the GIO in a defended motor accident matter.
A misunderstanding occurred when counsel for the plaintiff sought to tender a document that had not been served on the GIO.
The judge thought Toner said “no objection”, so admitted the document as an exhibit, saying he noted Toner had allowed it to be admitted without objection.
Toner: “I did not. I said I object. I am arguing with your honour for the simple reason I recall what I said and what I said is: ‘I object’.
Lloyd-Jones: Those remarks of counsel were shouted at the top of his voice at myself, as a judge of the District Court; shouted at the top of his voice, and I will give you an opportunity to have yourself heard as to whether or not you should be treated as being in contempt of this court.
Toner: Thank you, your honour.
Lloyd-Jones: And where that leaves you as to where you stand for the remainder of this matter is another matter. You will have to concede that you shouted at me.
Toner: I do and I apologise for that and I apologise for the offence I have given to your honour and to this court.
Lloyd-Jones: I hold you in contempt of this court and in the circumstances, because you obviously lost control in an arrogant and truculent manner, I will simply take no action other than to reprimand you in the strongest possible terms and have that referred to the bar council.”
In a joint judgment Justices Kirby and Clarke and Acting Justice Hope said they were unable to estimate the precise decibels of Toner’s admitted shouting, but it was clear that the judge had not followed the course required by the District Court Act before convicting Toner of contempt and punishing him with a reprimand.
The judge had neither caused Toner to be informed orally of the contempt with which he was charged, nor given him an opportunity to be heard in his defence.
Toner had conceded that he had shouted and apologised.
It was the duty of counsel and judicial officers to conduct themselves in a temperate manner.
However, mere acts of rudeness, discourtesy or even extreme discourtesy on the part of legal representative would not of themselves constitute contempt. The judges said:
“Discourtesy can be dealt with in a practical way by a judicial officer rebuking the practitioner concerned for the perceived discourtesy without the formal steps inherent in a conviction for contempt.
A too-ready use of the summary power to deal with contempt in the face of the court against legal representatives would enliven the risk of diminishing the courage of those representatives in the defence of their client’s causes.”
The judges said Lloyd-Joes had “sensibly” decided later not to reefer the matter to the bar council.
Just plain rude
More recently we had the appeal judges ruling that excessive interference in the questioning of witnesses by Lloyd-Jones led to yet another miscarriage of justice.
The Court of Appeal ordered the retrial of a personal injuries claim in which the judge’s conduct had an appearance of bias and denied the defendant a fair trial.
Like Richard Royle, who asked the judge to disqualify himself, and was told his application was grossly offensive, in this instance Des Kennedy for GIO made a similar application and was told by Lloyd-Jones that it was “insulting” and “just plain rude” and had resulted from “pettiness and nastiness”.
The appeal court found these remarks were completely unjustified.
It said the difficulties of the case had been gravely exacerbated when Lloyd-Jones …
“described the application as an abuse of process and suggested that the [GIO’s] legal advisers were possibly guilty of attempting to pervert he course of justice, which is a criminal offence.
There was no basis for these assertions and no counsel in the position of Mr Kennedy should have been confronted with them.”
In their joint judgment, Justices Clarke, Handley and Sheller noted the “strong language” used by the judge towards Kennedy. They said:
“Counsel are expected to have broad shoulders, but that is no reason to denigrate them or their submissions in the apparent hope that they will withdraw a submission which the judge finds unpalatable.”
In his judgment on the case Lloyd-Jones also had made “two simple errors” in calculating the plaintiffs period of unemployment.
The errors had first appeared in written submissions by the plaintiff’s counsel, Tim Clarke, but had been pointed out in Kennedy’s submissions.
“The conclusion to be drawn from these facts, when considered in the light of the course of the trial, is that his honour had closed his mind and was not prepared even to consider the [GIO’s] submissions.”
Throughout the trial the judge had interrupted Kennedy on 184 occasions.
“It is no part of the function of a judge, as a general rule, to present the case of any party, nor should the judge ever seek to destroy the case of a particular party, either by seeking to elicit particular evidence … or by seeking to destroy other witnesses by cross-examination.”
Over and out.