The Tipstaff

Upon completing university studies, many aspiring law students seek employment as a “tipstaff”.  It is a prized position; employment in the personal chambers of a judge, usually for a year. It is a wonderful opportunity to observe advocacy and understand the workings of the courts and judiciary. Presumably, one would not expect the position to coincide with being the epicentre of evidence before the Court.

So much so was in issue in some recent bizarre litigation.

Recusal proceedings

In Gaynor v Local Court of NSW & Ors [2019] NSWSC 516, an application was made before Justice Harrison (Supreme Court of New South Wales, Common Law Division) that he recuse himself from presiding in a hearing due to an alleged “apprehension of bias” arising from, wait for it, the employ of his Tipstaff.

It was contended that the material would satisfy the test for apprehended bias set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. It did not appear to even come close.

The parties to litigation

The parties to the litigation are not unknown to the Courts. They are Mr Gaynor (a “conservative blogger” who advocates the “traditional family unit”) and Mr Burns (a gay rights activist).  They maintain diametrically opposed social views.  They have clashed horns in an avalanche of litigation for a number of years, ranging from tribunal skirmishes to appeals to the High Court.

In the current Supreme Court of New South Wales proceedings, Mr Gaynor sought a declaration that proceedings commenced by Mr Burns in the Local Court are void.  But barely before the curtain started to open, he agitated for a different judge to hear his case. He contended that the employment by Harrison J of his tipstaff, who had published articles on the theme of homosexuality, gave rise to an apprehension of bias that the Court maintained different views to the (conservative) views of Mr Gaynor.

Unsuccessful

The application was unsurprisingly unsuccessful.

The recusal application

In support of his recusal application, Mr Gaynor annexed numerous records referring to the Tipstaff, in particular, extracts of his published articles. Collectively, this was suggestive of an invidious scouring of historical social media records.  Moreover, they appeared to be utterly irrelevant and invasive. They included:

•  A Facebook post by the Tipstaff referring to a production of “Peter Pansexual” at the University of Sydney.
• An extract of the Tipstaff’s Facebook account showing that the Tipstaff was “Facebook Friends” with another judge’s tipstaff, and that person had expressed views on Facebook about employment choices at faith-based schools.
• A Facebook extract from 2004 showing the Tipstaff participating in “Wear it Purple Day” (an annual LGBTIQA+ awareness day).
• An extract of “Queer Honi” from 2012 (an edition of Honi Soit, the student newspaper of the University of Sydney) containing an article written by the Tipstaff concerning professional soccer players and the low incidence of them being “openly gay”.
• An extract of Honi Soit from 2013 containing a letter written by the Tipstaff entitled, “In defence of Mardi Gras”.
• An extract of an article written by the Tipstaff in the Alternative Law Journal in 2019 entitled “Criminalising infection: Questioning the assumption that transmitting HIV constitutes grievous bodily harm”.
• An extract of the 2012/13 Annual Report of the Council of NSW listing the Tipstaff as staff/volunteer.

 Submissions and Evidence

In the course of submissions, it was said that the Tipstaff, a member of His Honour’s personal staff, was a gay rights activist and had, through his employment, sent “unsolicited emails”, apparently on behalf of the Court, in a way which is not normal. These emails, in fact, were entirely routine and appropriate correspondence by the Court to the parties and their representatives.

Evidence

Mr Gaynor’s evidence included the following:

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.

The fourth defendant’s complaints include complaints about my views on homosexual activism, homosexual activist organisations, health impacts of homosexual activities and the Sydney Gay and Lesbian Mardi Gras.

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 the evidence shows that [Harrison J’s tipstaff] sought to downplay the health risks of homosexual activity and to argue that laws criminalising the knowing transmission of HIV should be repealed.

I believe that the evidence shows that [Harrison J’s tipstaff] invited the fourth respondent to file submissions shortly before this hearing, despite the fact that the fourth respondent has filed a submitting appearance.

I believe that [Harrison J’s tipstaff’s] background and activities raises the prospect of actual and/or perceived bias in relation to his duties as Tipstaff to his Honour, Justice Harrison in this matter.

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.”

Judgment

In his judgment, His Honour stated that the personal views of his tipstaves are largely unknown to him except to the extent that they are revealed in the context of the relationship he has with them as his assistant in chambers.  As to his current tipstaff, his Honour stated:

his employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials.

The judgment also highlighted that even assuming it were otherwise, and the judge was intimately acquainted with his views and opinions on everything, there was no connection between any of the tipstaff’s views and the perception that the judge might not bring an independent and unbiased mind to the resolution of the dispute in this case. Cases are decided by judges, not their staff. The fact that a judge may engage his or her tipstaff in a vigorous and lively debate about issues that arise in cases heard by the judge is a circumstance far removed from instances where that discussion is influenced by a tangible connection with, or potential interest that the tipstaff might have in, the outcome of the proceedings.

Tip of the day