Judgment of the week
Friday, May 10, 2019 Justice Ian Harrison in the NSW Supremes dismisses apprehended bias application ... Facebook posts by judge's tipstaff ... Claim made by family values applicant that HH's associate supports gay rights ... Battle with a noted sexual equality campaigner ... Purple pride ... Jurisdictional issue ... Finding that cases are decided by judges, not their staff
Justice Hormones Harrison was in top form this week in a judgment dealing with an application that he disqualify himself for apprehended bias.
It concerns the ongoing "litigious cavalcade" between LGBTI campaigner and gay rights activist Garry Burns and conservative supporter of Catholic family values Bernard Gaynor of Queensland.
They have been at it for years - all the way up to the High Court and back.
As Justice Harrison put it:
"It is fair to say that the views of Mr Gaynor and Mr Burns on several issues of public interest do not closely correspond and are effectively diametrically opposed."
Gaynor is seeking orders that all proceedings against him in the Local Court commenced by Burns are void and of no effect on jurisdictional grounds.
Assisting Gaynor in this mission was well-known Sydney barrister, adopter of eccentric causes and former member for Wentworth, Peter King.
Harrison had reserved his decision on the matter, but before the hearing proper commenced King made an oral application that Hormones disqualify himself for apprehended bias.
On April 30, Harrison's tipstaff had emailed the lawyers for the parties asking for confirmation about written submissions.
Gaynor's affidavit of May 2 was the central item for consideration. He deposed that not only was Harrison's tipstaff gay-friendly, but so too the tipstaff of Justice Des Fagan.
King: emails "not normal"
Annexed to his affidavit where various copies of Facebook posts made by Harrison's tipstaff, including a review of a production of Peter Pansexual at the University of Sydney. Another other things, the review said:
"One of the show's real strengths was its diverse, nuanced portrayal of the many shades of sexuality. While there were, of course, the requisite gags starring dildos and twinks, the show roamed far beyond stereotypes and sequin jokes and even came perilously close to salient social commentary in parts."
Another annexure showed that Fagan's tipstaff is a Facebook friend of Harrison's tipstaff. In relation to a letter written by the Anglican Diocese of Sydney in October 2018, Gaynor included a Facebook post from Justice Fagan's tipstaff ,which said:
"Thankfully my school didn't sign this ridiculous, backwards letter. But many did.
It argues that faith based schools should be exempt from anti-discrimination law so that they may have the discretion to 'employ [or not] staff who support the ethos of the school'. Niiiiiice and subjective."
Other annexed social media posts showed that Harrison's tipstaff participated in "Wear it Purple Day" an initiative of the Aids Council of New South Wales.
There was also an article written by the same tipstaff in Queer Honi, a special edition of Honi Soit and an article in the Alternative Law Journal titled "Criminalising infection: Questioning the assumptions that transmitting HIV constitutes grievous bodily harm."
There were numerous other posts and items from webpages that Gaynor attached pointing to the tipstaff's support from Mardi Gras and Wear It Purple.
In his affidavit Gaynor says:
"I believe that [Harrison J's tipstaff] has actively campaigned for ideas that are diametrically opposed to the ideas that I support as a practising Catholic.
I believe that the evidence shows that [Harrison J's tipstaff] was selected as a tipstaff in a process conducted directly by his Honour Justice Harrison ...
I believe that the evidence shows that [Harrison J's tipstaff] has participated in homosexual activism and been a member of homosexual activist organisations and also attended and supported the Sydney Gay and Lesbian Mardi Gras ...
I believe that [Harrison J's tipstaff's] position as tipstaff to his Honour raises perceived bias in relation to his Honour's ability to preside over this hearing."
After he read the application, Hormones Harrison asked King, what any of this had to do with him as the judge in the case.
King explained:
"We have a situation where a member of your Honour's personal staff, a gay rights activist, has sent unsolicited emails, apparently on behalf of the court, in a way which is not normal ..."
Harrison said he was unable to understand the relationship, if any, between the request made with his authority by his tipstaff asking the parties about written submissions, and any apprehension of bias.
He said to King:
"I don’t mean to interrupt you but could I do so by saying I have only been in this job for 12 or so years but it has become quite a regular occurrence when matters are listed for hearing and as the hearing approaches before the court, either through an associate or a tipstaff, to enquire of parties whether or not they propose to make submissions or whether they want to update their submissions ..."
He went on to say that his tipstaff's employment was not influenced by or dependant upon his social or political views. Rather it was informed by his outstanding academic and employment credentials.
Even if it were otherwise, what is the connection between the tipstaff's views and the perception that the judge mightn't bring an unbiased mind to the matter?
"In my limited experience, cases are decided by judges, not their staff."
As it is, these proceedings are not concerned with the correctness or appropriateness of competing views about gay rights and associated issues, such as same-sex marriage. It is about the jurisdiction of the Local Court where Mr Burns seeks to have these matters thrashed out.
Justice Harrison said the significance of anything revealed in Gaynor's evidence was as relevant as if he were determining a case about water allocations and one of the parties discovered that his tipstaff had done work experience on a cotton farm in the basin or was an enthusiastic supporter of the integrity of downstream wetlands.
In relation to the Peter Pansexual flyer posted on Facebook, that was done seven years ago. And as for the Facebook posts by Fagan's associate, Harrison observed:
"I am unable to understand the relevance of a Facebook post made by another judge's tipstaff to the application that I recuse myself because of the tipstaff's alleged political views."
Again, he dismissed the submission about the article on HIV in the Alternative Law Journal.
"I am unable to see how an article about the criminal law of assault and HIV has any relevance to establishing my tipstaff's political views or in turn how those alleged political views about HIV have anything to do with an apprehension of bias."
Recusal application dismissed ... Squelch.
King's instructing solicitor was Robert Balzola, a noted anti-Mosque campaigner, who is suing two other members of the Liberal Party over a heated argument in a room above the Haberfield restaurant Dolcissimo.
The solicitor claims that during an annual general meeting of the Liberal branch in March 2016 two other members said that Balzola was a criminal who "beats his wife".
Reader Comments