A Day in Court with Kathy Jackson

Posted on June 8, 2012


Federal Court 22B 11am.

A room full of three rows of lawyers in black and white. I sat on a red chair at the back. A woman walked in and sat in the middle of the front row, Marco Bolano’s partner. Deputy General Secretary of HSU East, Marco Bolano walked in and sat next to her. Health Services Union National Secretary Kathy Jackson walked in and sat on the other side of the woman, there was a lot of smiling amongst them. Kathy Jackson seemed very friendly, greeting Hannah Low, a journalist from the Financial Review. Marco Bolano moved next to Kathy Jackson to speak to her, then sat back in his seat. The lawyers were all chatting amongst themselves.

Kathy Jackson walked out, perhaps to answer her iPhone in an aqua case. It all seemed very casual. She seems surprisingly relaxed.

In court, there were trolleys full of files on one side.

SMH crime reporter Lisa Davies @LisazDavies sat next to me.

An elderly gentleman with no black robe on, David Rofe QC, stood up the front before Justice Flick and apologised for only wearing a suit. His court attire was in the dry cleaners as he had not expected to appear this week. He announced that he had instructions to appear for Kathy Jackson.

Justice Flick has a no nonsense approach. He seemed annoyed.

David Rofe QC said, “I believe she’s going to ask for me to appear. Ms Jackson can’t appear in her own right.”

It turns out that Kathy Jackson’s previous barrister, Brett Shields was no longer appearing for her.

“I know nothing about this case really … counsel of their choice … I’ll simply sink,” he said, if he had to start without an adjournment.

Justice Flick: “Don’t talk over me. It’s an unsatisfactory state of affairs … on the final day of submissions … Does anyone oppose a short adjournment while Mr Rofe gets instructions?”

Mr Rofe: “I will need one week to get myself in a position where I can properly assist the court. There’s a massive amount of material that I haven’t been able to absorb.”

Justice Flick told him there were four volumes. “This case was on the cusp of completion this week, evidence is in, Ms Jackson has agreed to the Statement of Facts … It’s a considerable prejudice and inconvenience to us, to be told the case may now go in a completely different direction … A party should not be able to create this dis…. I don’t think you have to be too bright to guess what happened … Advice was given and in the absence of anything further … The way the case has been conducted is going to be departed from. Mr Rofe, is the application for adjournment ….?”

Mr Rofe: “That’s a matter I can only determine … counsel for what’s his name?”

Justice Flick: “’Lawler.’ Will they stick to the statement of facts? My impression … it’s a mess.”

Mr Rofe: “It’s not my fault she’s lost her present counsel.”

Justice Flick: “Whether it’s her fault or not … If there is any unfairness, it’s unfairness to the other parties, not Ms Jackson … Why should that unilateral decision on her part be visited on the other parties?”

Mr Rofe: “I don’t know enough about it.”

Justice Flick: “Evidence stays as it is and your sole task is to put … further written submissions within a week … Whether Ms Jackson wishes to depart from the agreed Statement of Facts … if she wants to call further evidence, I want an explanation … It should take no longer than 15 minutes to get those instructions. … unless you get leave on those … If there was an adjournment one would be making an application for costs. If there … No reason why Ms Jackson should not have to pay costs, paying costs of an adjournment.”

My impression at this stage was that Kathy Jackson was pissing everyone off.

Justice Flick: “ … Interlocutory Injunction territory.”

Lawyer for the State: “The state minister is interested in urgent appointment of an administrator to …”

Justice Flick: “back before court end of next week and decision given the week after on a final basis. If the state minister is not prepared to hold his hand, I would favourably support the interim appointment of an administrator … Ms Jackson should know the consequences … order an administrator appointed on an interim basis … Honorable Michael Moore … HSU East.”

Kathy Jackson didn’t look too pleased.

Justice Flick: “There is a sufficient basis at present to justify the making of that order on an interim …”

David Rofe QC was given 15 minutes, until 10 to 12 to decide what to do.

In the break, I heard one lawyer say, “This is like an episode of the twilight zone, weird.”

Mr Rofe was back at the bar: “I’m not in a position to act as counsel. Would you mind if I had a little more to say? In 57 years in the bar I have never been put in a position … 15 minutes. This is outrageous … I’m not in a postion because in the time frame you’ve laid down … they had other commitments … priority to other cases.”

The two gentlemen argued.

Justice Flick: “The position of your client … I am not going to adjourn proceedings … If an application is made, that application can be made next week. That gives her the opportunity to seek whatever advice … an unknown position … uncertainty … in the absence of an unspecified application.”

Mr Rofe: “I don’t think I will remain at the bar table.”
Mr Rofe walked out.

Kathy Jackson  approached the bar table and represented herself. “Just a moment … 10 minutes to leave the court for a second. I don’t know what’s happening but it is less than satisfactory. Can you let me know if you …. Apprehended bias by yourself … he’s got the person I’ve got …”

Justice Flick: “What’s the basis of that?”

Kathy Jackson: “The remarks you made on Monday – my evidence wasn’t able to be submitted because it was 6 hours late. Yesterday you allowed the parties to rely on the facts of the disputed affidavit.”

Marco Bolano was chewing his fingers, not smiling now.

Kathy Jackson: “Yesterday Mr Crawshaw … If I was allowed to tender my initial affidavit …”

Justice Flick: “In fairness to you Ms Jackson … the manner in which the merger occurred, … I think that does have some evidence …”

Kathy Jackson: “That was a disputed fact.”

Kathy Jackson was arguing with Justice Flick. I would not recommend it.

Justice Flick: “Is there any other evidence you would like to …?”

Kathy Jackson: “Yes, all of it. I want to rely on my initial affidavit … merger… you haven’t heard from me about that. Yes I want to call all the witnesses … affidavit 1st of June. There has been interference from people sitting at this bar table … What we agreed on the first day of hearings … In defence of my previous solicitors and counsel, you refused to receive my evidence on Monday … criticisms suggesting I had committed contempt.”

Kathy Jackson was criticizing Justice Flick: “… filing an affidavit 6 hours late.”

Justice Flick: “You can make those submissions next week.”

A bald man with an Irish accent, Rob Morrie, who described himself as Mr Morrie, “a rank and file member of HSU East,” disputed facts.

Justice Flick: “… won’t put them in a position where they have to address those facts on the run.”

Kathy Jackson’s application was stood over til 9.30 Friday 15th June.

Kathy Jackson waved her hand across room, “You’ve got 22 barristers sitting here seeking costs against me.”

Rob Morrie: “Could I seek permission to speak?”

Justice Flick: “I’ll hear from you next Friday”

Kathy Jackson to Justice Flick: “I’ve been denied procedural fairness … There’s been no agreement that members can speak to this court … I think you should disqualify yourself in this matter.”

Justice Flick “You can make that application next Friday.”

Marco Bolano left the court room at about 12.30.

There was a discussion between Kathy Jackson and Justice Flick about factions and a demerger and a possible factional fight about that.

Kathy Jackson to Justice Flick about the appointment of Former Federal Court Judge the Hon Justice Michael Moore on an interim basis as administrator: “Bill Shorten @billshortenmp represents the ALP and many members are disgusted with the ALP’s handling of Thomson … we just don’t need that problem.”

Kathy Jackson: “As the federal government is an ALP government, any submission by Mr Shorten…” She is interrupted by Justice Flick.

Justice Flick: “Ms Jackson, this is more in the nature of a press release … To protect your case …” She continues to speak.

Justice Flick: “Ms Jackson I’m not going to be interrogated by you, please sit down.”

“It’s the court’s decision, not the administrator’s decision.” (who the administrator will be).

Kathy Jackson: “Michael Moore is connected with the Minister and we need an independent administrator … We’re left in this position today where all the officers will be … I think this is grossly unjust and who have members … There has been no factional fight. The only fight has been between a corrupt faction and a non corrupt faction … The truth in this case is scandalous … If you are to appoint an interim administrator or officers are to remain, but I still believe we need to make sure this is an independent administrator and not someone that the ALP have hand-picked.”

Justice Flick: “It is regrettable court has been put in the position necessary to make it necessary. Interim administrator.”

The court was adjourned til 3pm. Kathy Jackson asked for a copy of the transcript.

Lisa Davies filed this story and tweeted: Kathy Jackson sacks lawyers, asks judge to disqualify himself becoz he’s biased http://www.smh.com.au/opinion/political-news/kathy-jackson-sacks-lawyers-asks-judge-to-quit-20120608-200oq.html

At 3pm, Kathy Jackson came in with two boys who sat at the back.

I don’t like the way Kathy Jackson has used the media to create the ‘trial by media’ of Craig Thomson, which the LNP ran with to the extreme because they wanted to bring down the government. I was interested to see the way she confidently criticised Justice Flick. She’s gutsy, a politician, a fighter. You just don’t criticise a Federal Court judge, it’s his domain. Follow the law’s policies and procedures, especially when you’re standing in front of Justice Geoffrey Flick, the author of ‘Federal Court Practice’ authoritative guide to Federal Court practice and procedure http://www.thomsonreuters.com.au/federal-court-practice-online/productdetail/89477

I would never want to represent myself to a Federal Court Judge, it is just not part of the formal process, you pay a barrister to represent you.

Orders were made.

Kathy Jackson: “Your honour I contend that you must make this order now because denial of procedural fairness to me, Miss Hart and Mr Morrie … apprehended bias claim …”

Justice Flick: “… apprehended bias application.”

Kathy Jackson: “Michael Williamson is corrupt.”

Justice Flick: “Confine yourself to that which is relevant.”

Kathy Jackson: “It’s not a media release.” She was argumentative. “… determination to appoint Justice Moore, the darling of NSW …”

Justice Flick: “You’re only colouring it. The court proceeds on the basis of objective facts … rather than prejudice it … media release.”

Kathy Jackson: “You haven’t heard any of the evidence.”

Justice Flick: “… submissions are rejected.”

Kathy Jackson complained that the SMH reported that her solicitors were sacked by her, but she said they were unavailable, not sacked.

Another barrister: “Mr Moore is prepared to act and can start on Tuesday.”

They prepared and distributed an order in relation to HSU East Branch.

Justice Flick asked the barristers in the room: “Do any of the represented parties think that I should disqualify myself?”

Everyone shook their heads.

Justice Flick to Kathy Jackson: “have no hesitation in making an application to disqualify me. I’m not that easily offended. You’re free to do so.”

Everyone is entitled to the presumption of innocence until proven guilty. In Latin, ‘Ei incumbit probatio qui dicit, non qui negat.’

Trial by media (including Twitter) is wrong, often highly emotive and biased. People need to look rationally at facts and evidence in a court.

As barrister Greg Barns said, @BarnsGreg “does the media think it ought be able to destroy lives and reputations and not face effective sanctions?” https://twitter.com/BarnsGreg/status/210724441515245568

This story is so complicated.

I have to see things with my own eyes, in person, to know things in my own mind. Speaking directly with people is very different from reading about them,  everyone projects their own experiences in their writing. We’re all human and we all have reasons for the way we behave, shaped by our upbringing and our experiences.

Most quotes are not complete because I couldn’t get every word down.

The barristers previously representing Kathy Jackson, Harmers Workplace Lawyers, released this statement: