Bill Potts On Queensland Supreme Court Strife “One move & The Chief Justice Gets It.”

THE looming success of the orchestrated moves to oust Tim Carmody has sparked concerns for future judicial appointments in Queensland.

Legal experts yesterday warned Justice Carmody’s resignation would set a dangerous precedent that could see politically appointed judicial officers coerced out of their jobs by unsupportive colleagues.

It comes as the State Government investigates setting up a judicial commission, which could be responsible for advising on appointments and dealing with complaints.

Establishing such a commission is one of Justice Carmody’s key requests in offering his resignation, and is also backed by one of his arch rivals, Court of Appeal President Margaret McMurdo.

QUT School of Justice associate professor Mark Lauchs said it would be a dangerous situation if Justice Carmody resigned due to the actions and criticisms of other judges.

“I would prefer it didn’t end in resignation because it sets a bad precedent,” he said.

“It means judges could coerce someone to leave a Chief Justice position or any judge position.

“They should never have the power to do that. It’s not a democratic system which would allow them to do that.”

But retired judge George Fryberg defended the public nature of the campaign against Justice Carmody, saying the importance of the role was too high to have concerns covered up.

“You wouldn’t want a situation where something is apparently as dysfunctional as the office of Chief Justice has been, where it was covered up and not spoken of just to preserve confidence in the judiciary,” he said.

“It would be a false confidence and you would not want that. Without that public confidence the courts would be lost, but you can’t get it by covering things up. This is a good thing this has come out in the public eye.”

During his 10 month tenure, Justice Carmody has endured criticisms both in public and behind closed doors, with one judge — Justice John Byrne — secretly recording a private conversation with the Chief Justice earlier this year.

Yesterday a chorus of legal voices continued to criticise him over the perception he was trying to set the terms of his resignation, including demanding judicial reform and “just terms” — interpreted as a financial agreement.

High-profile barrister Tony Morris QC expressed “repugnance” at the apparent ultimatum.

Mr Morris led the charge against Justice Carmody’s qualified resignation offer, saying it was “so wrong” for a judge to impose conditions upon the Government.

“I don’t know how to express the depth of my repugnance of the idea a judge could say, you want me to retire, these are my terms,” he told The Courier-Mail.

Criminal defence lawyer Bill Potts added: “It is of concern that the Chief Justice finds his position is untenable and sees it is in the interests of the courts he resigns, yet at the same time places preconditions on that”.

And University of Queensland employment law specialist Paul Harpur said using judicial reform as a bargaining chip was “curious” and “odd”.

Retired judges — some of whom had been vocal in their criticism of Justice Carmody — yesterday restated that his appointment was “disastrous”.

Others congratulated him for putting the state’s interests ahead of his own.

Retired judge Justice James Thomas, who served on the Supreme Court of Queensland from 1982 to 1998, said the appointment “proved disastrous”.

“He sat rarely on real cases and frankly did not pull his weight. He doesn’t have the respect a Chief Justice needs to have to make a system work,” Justice Thomas said.

“Now the egg has to be unscrambled and it’s a painful process.

“Resignation seems to be the only way to go.”

He said the public’s view of the court had been damaged during the past 10 months but it could be repaired with a new Chief Justice.

“It requires someone who has a very good legal intellect, someone who is above politics and someone who has the respect of judges and the legal profession.”

Corruption buster Tony Fitzgerald, who was a vocal critic of Justice Carmody, made a statement yesterday: “I think it’s best for all if he is allowed to go with dignity and without more controversy.”

Retired Justice Richard Chesterman, who was on the Supreme Court for 14 years until 2012, said the problems “which are now so painfully evident seem to have begun only with the appointment of the present Chief Justice”.

Justice Chesterman said he “completely rejected” Justice Carmody’s assertion that there were structural and cultural problems festering in the judiciary.

“The assertions are personally offensive to serving and retired judges and absurd in equal measure,” Justice Chesterman said.

Retired Justice Fryberg, who left in 2013, said while he personally liked “Tim”, it was right for him to resign.

“If he goes ahead and retires I think he’s courageous and he’s to be commended because he is putting the interests of the people of Queensland ahead of his own personal interests.”


AN OUTSIDER from interstate could be needed to restore the community’s faith in the judiciary following the Carmody affair, legal insiders believe.

Attorney-General Y’vette D’Ath has already committed to “consult widely” on any new appointments during the Government’s term.

Judicial insiders were divided yesterday over whether a sitting Supreme Court judge could be successfully elevated to the top job, following 10 months of infighting.

Possible local candidates include long-serving Court of Appeal Justice Hugh Fraser, who avoided controversy despite his involvement in the Brett Peter Cowan appeal.

Justice Glenn Martin, Justice David Jackson and respected barristers Robert Traves QC or Elizabeth Wilson QC were also touted as possible replacements for Justice Carmody yesterday.

As a bare minimum, candidates must be eligible to be a judge with at least five years experience as a lawyer, and can be drawn from academia, the bar or be a solicitor.

Others have advocated the establishment of a judicial commission similar to that in New South Wales, where a group of judges and appointed members resolve complaints but perform a second function as an independent and transparent advisory body on judicial appointments.

Senior practitioner Bill Potts said there was no reason why the state’s next top judge couldn’t be a local.

”I don’t think we need to look out of our state,” he said.

Mr Potts said the qualities necessary for the state’s top judge included: a first-class legal mind, a demonstrated history of judgment, a personality suitable to judging others and commonsense.

“But most importantly of all, it should be a person who is doing it for the right reasons and that is not for self-glorification but that is effectively to serve the public,” he said.

“It should be someone without any interference of a political kind or political patronage but with fierce independence, intelligence, proven ability.”

Story By: Brook Baskin | Courier Mail | 26th May 2015

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