How not to behave in a courtroom 101: extraordinary conduct by lawyer: Federal Magistrates Court

Occasionally one comes across a case that makes my jaw drop. No, that's wrong. Too often in family law I come across a case that makes my jaw drop.

However this case is such a case, and is one of those that to give it justice is too long to put in a short blogpost like this.

In Owens and Owens (No 2), the barrister for the husband, a Mr Testart, made an application for Federal Magistrate Walters to disqualify himself on the grounds of bias- either there was a reasonable ground of apprehension of bias, or actual bias.

Federal Magistrate Walters rejected that application. In the course of his judgment he laid out the extraordinary conduct of Mr Testart, that one would be hard pressed to see on American TV.

Here are some snippets:

Ordinarily, a judicial officer could comment that "the transcript speaks for itself" in relation to certain exchanges with counsel. In the present case, however, that is only partly true. It gives me no satisfaction to have to record that I cannot in good conscience, and do not, resile from any of the comments that I made about counsel’s behaviour during the course of the proceedings. I would add that counsel’s behaviour in court demonstrated what appears to be a fundamental misunderstanding of the role of an advocate in proceedings in a busy trial court (or, indeed, in any court). By way of example only,


Mr Testart –

• seemed to regard most rulings made against him during the course of the hearing as a personal affront;
• continued to argue with the bench well after rulings had been made, including by failing or refusing to sit down (where he had made an objection and it had been disallowed) or failing or refusing to adhere to directions regarding relevant questioning (where Ms Teicher had made a successful objection, or the court had indicated that a question was inappropriate for any reason);
• giggled, rolled his eyes, scoffed and made sotto voce comments when Ms Teicher was examining her client, cross examining the husband or addressing the court;
• rolled his eyes, smirked, sighed, gesticulated and generally (and obviously) conveyed his displeasure or disagreement with events occurring within the courtroom, or comments made by the bench;
• at one point, simply sat down while re examining his client (saying that he needed "to compose himself"), and remained sitting, in silence, for three or four minutes – and gave no signs of being close to resuming his role in the proceedings – before the court broke the silence by asking the witness to continue the evidence that he had been giving;
• during the course of an interlocutory hearing (being the first disqualification application), turned his back on the court, and addressed the bench while facing the rear of the courtroom; and
• during the course of the same interlocutory hearing, endeavoured to explain to the court why he had estimated that a matter that was clearly likely to take the best part of a day "might take only five minutes" by indicating that he expected that the court "might be able to recall the proceedings (giving rise to the first disqualification application) and see that my submissions might be particularly strong and simply grant the application".

And:

In my opinion, counsel was not entitled to "stand by" during the whole of the evidence phase of the trial (which occupied eight days) – whilst behaving in the manner described above (and elsewhere in these reasons) – without asking the judicial officer to refrain from continuing to hear the matter and thereby giving him the opportunity to correct any wrong impression of bias that may have been given or, alternatively, to disqualify himself at an early stage. The delay in making the second disqualification application was unexplained and, in my view, it was unconscionable – particularly when regard is had to the following:

• counsel gave no warning of the fact that such an application was to be made;
• the court had been led to believe that counsel was fully occupied preparing the husband's closing submissions, when, in fact, much of the time had obviously been spent in the preparation of the second disqualification application; and
• in concentrating on the second disqualification application to the detriment of the husband's closing submissions, the second deadline for filing of the husband's closing submissions was (apparently) deliberately ignored. Alternatively, the second deadline was allowed to pass without adequate explanation.

And:

As indicated above, I am reluctant to spend unnecessary time dealing with the second disqualification application. Still, I will record the following:

• A fair-minded lay observer could not have reasonably apprehended that I might not bring an impartial and unprejudiced mind to the resolution of the questions that I was required to decide. Such an observer would, however, have recoiled from some of Mr Testart’s comments and submissions, and been incredulous that a legal practitioner could behave with such disrespect for the court (and for his own role as an officer of the court). A fair-minded lay observer might also have thought to himself or herself: why is the court prepared to put up with this type of provocative and disrespectful behaviour from counsel?
• To the extent that matters raised in the second disqualification application relate to matters dealt with in the first disqualification application, I refer to and rely upon the first disqualification judgment.
• The request for security to enter the courtroom did not "cause ineradicable commotion". In fact, it caused no commotion at all. It had the effect of enabling calm to return to the proceedings.
• I reject any suggestion that I am or ever have been actually biased in this matter – irrespective of my views of counsel’s behaviour. On a number of occasions during the course of the trial, I mentioned that I would not permit the husband to be prejudiced by his counsel's behaviour. That has remained my view, and my intention.
• I have not caused any complaints to be made against Mr Testart (to date). It appears that he has caused a complaint to be made against me, but the making of the complaint has not prevented me "from an objective determination in this matter". I note that the complaint is the subject of Appendices 2 and 3 to the second disqualification application.
• In the complaint comprising Appendix 2 to the second disqualification application (being a letter dated 20 October 2009 addressed to me and copied to the Chief Federal Magistrate, the Chief Justice of the Family Court of Australia and [counsel for the wife]), concern is expressed about comments that I made during the hearings on 16 and 17 September 2009 (in the course of hearing the first disqualification application). The complaint concludes as follows:

It follows from this that, with the greatest respect, it is no longer appropriate for me to appear before your Honour in this matter (and perhaps in any other matter). It is my respectful submission that my conduct falls well short of the conduct required to meet the test in Grimwade v Meagher, that is conduct which might make it appropriate for me to be removed as counsel in this matter. From this it follows, therefore, that your Honour should remove himself from presiding over this matter and that this matter should proceed before another judicial officer. (Emphasis added)

• Unfortunately, the distorted (and arguably impertinent) logic reflected in the paragraph quoted above is not untypical of  Mr Testart’s overall approach to the litigation process, as the transcripts clearly reveal.
• I have already recorded that Mr Testart’s behaviour in court demonstrated what appears to be a fundamental misunderstanding of the role of an advocate in proceedings in a busy trial court (or, indeed, in any court). The genesis of that misunderstanding might perhaps be identified in the argument commencing in paragraph 9 of the second disqualification application. Although lip service is paid to counsel’s obligation not to mislead the court "in the sense of concealing evidence or withholding relevant authority which might bind the court", counsel appears unable to understand that quoting transcript passages (or other evidence) out of context – indeed, knowingly quoting such passages out of context – has exactly the same effect. It is not to the point that the other party to the proceedings might be represented. Counsel's primary duty in such circumstances is to the court, and counsel cannot knowingly cause or permit the court to form a view about or draw an inference from evidence when counsel is fully aware that such view or inference is not reasonably open. It matters not that proceedings are in a criminal court, an appeal court, a civil court or a court exercising jurisdiction in family law; nor does it matter whether proceedings are ex parte or defended, or whether the other party is represented or unrepresented: counsel must not knowingly mislead the court, or allow it to be misled.

And:

In what might be regarded as some form of self-fulfilling prophecy, counsel’s extraordinary behaviour in the present case seems to have led inexorably to his submission that the presiding judicial officer should disqualify himself on the ground of apprehended (or, indeed, actual) bias . As illustrated in the extract from the complaint quoted above, a conclusion to the effect that it was no longer appropriate for counsel to appear before a particular judicial officer somehow metamorphosed into a demand that the judicial officer should remove himself from presiding over the matter (presumably, so as to allow counsel to continue to appear without discomfort).

And:


Regrettably, there are many examples of counsel’s unusual (to use a neutral term) or discourteous and provocative (to use terms referred to in the cases cited above) behaviour. No constructive purpose would be served by endeavouring to list more than some of those examples. Thus:


On 12 November 2009, there occurred an ugly exchange between counsel for the parties. During the course of the exchange,

Mr Testart accused [ counsel for the wife] Ms Teicher of lying to him. Ms Teicher was clearly (and understandably) upset.

Shortly after the above exchange, I asked Mr Testart to continue his cross examination of the wife. He then argued with me about a ruling that I had made and insisted upon "arguing the toss" in spite of being asked to proceed with his cross examination (or to "move on") on no less than nine occasions.

A few minutes later, he again argued with me about a ruling that I had made. He again insisted upon "arguing the toss" in spite of being asked to proceed with his cross examination (or to "move on") – this time on no less than 11 occasions. His behaviour prompted me to make the following comment:

... if you are incapable of moving on and accepting the court's directions, then I require you to give up the brief now and your instructor will take over the trial.

During the course of the husband's examination in chief, I ruled that Mr Testart could not continue to lead evidence in relation to certain subjects. Again, counsel "argued the toss" and gave no indication of accepting the court’s ruling. He became very agitated, and did not attempt to hide his annoyance with and lack of respect for the presiding judicial officer.Indeed, in an episode reminiscent of the occasion in September 2009 when he turned his back on the bench and addressed the court whilst facing the back of the courtroom (which episode is described in the first disqualification judgment), counsel simply sat down. When I directed him to stand up and continue his examination in chief (or, alternatively, to advise me that he had no further questions), he announced: "I'm just going to take a couple of minutes to compose myself ...". He then remained seated, in silence, for three or four minutes. When he showed no signs of being prepared to resume his role as counsel, I asked the husband some general, non-leading questions by way of enabling him to respond to new matters raised by the wife in her evidence. I regarded counsel's behaviour at that time as being petulant and immature and, having re-read the transcript, I still adhere to that view.

On the next day (13 November 2009) I made the following comment:

I want to put on transcript ... that you (Mr Testart) have on at least two occasions during this case asked for time to, as you described it, compose yourself. Yesterday, you sat motionless for something close to five minutes before I took over the examination in chief of your client. That type of behaviour cannot continue in the trial. We must endeavour to complete this case today if we possibly can, or at least the evidence phase of it. ... This case must be brought to an end as quickly as possible. The issues have never been as complicated as you have endeavoured to pretend that they are, or perhaps you believe that they are. But, frankly, your belief is neither here nor there in this case. What is important is the evidence that is presented to me. Now, I will not accept any further behaviour such as I have had to endure over the past four days from you ... I expect you to accept the rulings with good grace and professionalism whether you like them or you don't like them. What you do after that is a matter for you professionally. If you elect to appeal on various grounds, there is nothing I can do about that. That is your right. But I will not have you sitting down telling me you need to compose yourself for periods of up to five minutes when nothing happens. It is a waste of the court's time ...

Later on 13 November 2009, and during the course of her cross examination of the husband, Ms Teicher put Exhibit W4 to the husband. Exhibit W4 comprises a one page email from the husband to the Principal of [S]. The exhibit had previously been shown to Mr Testart. It was suggested to the husband that the email (or relevant parts of it) was "nasty", and deliberately offensive. After a short time, Mr Testart interrupted the cross examination, indicating that he could not follow it because he was not aware of the precise section of the email to which reference was being made. I cannot know what was in counsel's mind when he suggested that he was unsure of the precise passage in exhibit W4 about which the husband was being cross examined. He was certainly well aware, however, that the passage had caused the court some concern. I formed the view at that time that counsel was simply grandstanding – with a view, perhaps, and whether wittingly or unwittingly, to remove some forensic pressure from his client in the witness box. I could think of no other reason why counsel was behaving as he was at that point in time, given that the thrust of the cross examination and the focus of the court's concern were clear beyond the shadow of a doubt. The result of counsel’s interruption was that Ms Teicher "lost her train of thought" in relation to the subject, causing me to speculate that that may have been the purpose of counsel’s interjection in the first place. I then said that, in my opinion, the interruption had been "a ridiculous waste of time". I remain of that opinion.

As indicated above, the trial (which had been listed for two to three days) was not completed in the first five sitting days (9 to 13 November 2009 inclusive). It was adjourned part heard to

23 November 2009, and continued on 24 and 25 November 2009 when it was adjourned for the delivery of written closing submissions.

During the course of her cross examination of the husband on 24 November 2009, Ms Teicher suggested that Mr Testart might have been prompting his client or, alternatively, that he was responding inappropriately to his client's answers to her questions. The following exchange ensued:

Ms Teicher: ... I am not sure why my learned friend is sitting, shaking his head and (the husband) is looking and I find it disconcerting. It has been going on quite a bit.

Mr M Testart: No, it hasn’t.

Walters FM: Yes, it has, Mr Testart, and I - - -

Mr M Testart: No, it hasn’t, your Honour.

Walters FM: It has, Mr Testart.

Mr M Testart: Your Honour, I am sick of you, making, casting aspersions as to my honesty.

Walters FM: Mister (Testart), sit down.

Mr M Testart: Don’t cast aspersions to my honesty.

Walters FM: Mr Testart, sit down. The sotto voce comments, the rolling of the eyes - - -

Mr M Testart: There is no rolling of the eyes.

Walters FM: The immature behaviour from you has been continuing for days. ...

Mr M Testart: But do not criticise my honesty again.

Walters FM: I will criticise your honesty when you try to mislead the court.

Mr M Testart: Well, then you ought to charge me with contempt for being dishonest to the court.

Walters FM: Sit down, Mr Testart. Sit down and behave yourself.

Mr M Testart: I will defend my reputation for honesty to the very end, your Honour.

Walters FM: Sit down, Mr Testart.

Mr M Testart: Don’t do it again.

Walters FM: Mr Testart - - -

Mr M Testart: I have made a complaint against you already, your Honour.

Walters FM: Well, good luck to you, Mr Testart. Sit down, stop rolling your eyes, stop misbehaving. I have noticed these things - - -

Mr M Testart: It is my natural reaction to my learned friend’s ridiculous questions are my business.

Walters FM: No, they are not, Mr Testart. They are the court’s business and they are interfering in the process of cross-examination. Now keep your mouth closed when your opponent is cross-examining and behave yourself as counsel. I am not interested in whether I upset you or whether you take offence at what I say. This case must proceed. Now stop the comments. Ms Teicher, please continue? ...

During the course of the above exchange, counsel was highly agitated. Unfortunately, he had indeed been behaving as Ms Teicher had described, and he had indeed been rolling his eyes, making sotto voce comments and behaving generally as described elsewhere in these reasons. His rudeness and lack of respect for the authority of the court are obvious from this exchange (which, regrettably, was not an isolated incident). More importantly, Mr Testart appeared to be having the greatest difficulty controlling himself, and his comments (and his demeanour) were threatening.

It was shortly after this exchange ("the first exchange") that the exchange quoted in paragraph 46 of the second disqualification application – which I shall describe as "the second exchange" – took place. It follows that the second exchange did not occur in a vacuum, and it has not been put in context in the second disqualification application. It is precisely this approach to litigation (or, perhaps more accurately, to the presentation of argument or submissions) that prompted many of the comments from the bench in the first place. In other words, the decision to quote the second exchange without referring to the first exchange is (arguably) misleading in itself, and fairly exemplifies counsel’s approach to the presentation of argument or submissions.

Indeed, the fact of the matter is that the second exchange actually commenced earlier than the passage cited in paragraph 46 of the second disqualification application. Ms Teicher had been cross-examining the husband in relation to his late father's will, and whether the husband could have produced a copy of it for inspection at a much earlier stage of the proceedings. The husband said that he did not have a copy of the will. I then said to him, and he agreed, that he was entitled to a copy of it. I continued:

You could have asked for a copy and it would have been given to you?

Mr Testart then interjected:

So could the wife, your Honour.

This was, in effect, the start of the second exchange, which continued:

Walters FM: ... just sit down, Mr Testart. Don’t interrupt me again. Don’t prompt the witness again.

(To the husband:) What is being put to you is: you are entitled to a copy of the will, you could have asked for one at any time and then provided it to the wife. Now why didn’t you do that?

The husband: I’m not sure. I have got a copy here if you would like to see a copy.

Ms Teicher: Well, I would like to see a copy ... and I am surprised given you have it at court it hasn’t been provided to the wife.

Mr M Testart: Well, with respect ... I have got a two-page affidavit from one of the executors of the estate. The will is the first and only annexure to it and I sought the leave of the court a couple of weeks ago and I was refused leave to file and serve affidavit material. Frankly, I believe that this line of questioning is unfair. It is not my client’s obligation to provide third party documents. The wife’s legal team could have written to the estate and asked for it and they would have no doubt complied with that but ... it is the wife that is seeking to rely on the will here. So this needs to be put into perspective. It’s no cloak and dagger exercise. He has got nothing to hide. We have got an affidavit with the will annexed to it. We are ready to meet this issue head on.

Walters FM: This has been an issue since June or thereabouts. I can’t recall when I gave the estate leave to intervene when all of these issues about the estate were raised. I completely reject any suggestion that the wife might have been entitled to a copy of the will. The way the case has been run, she could have fairly expected, as far as I can see, that she would have been told “no”. But this witness (the husband) was entitled and he has conceded that he is entitled to a copy of the will. The obligation to discover relates to documents that you control, that are relevant to matters at issue. I would have thought nothing could be more relevant to the matters in issue in this case than the will and yet no attempt apparently is made to produce it until very, very late in the case. Now, no will, no will. It’s their problem, Ms Teicher, and you know, I made it clear a long time ago (that) everyone had to disclose and disclose and disclose, above whatever the rules required and it hasn’t been done. Well, you decide what you do from this point.

Ms Teicher: Thank you ...

Walters FM: At every turn it seems that aggression has been the approach adopted, probably by both sides, and confrontation. If that s the way they want to run the case, so be it. What’s proved is proved, what’s not proved is not proved. There are rules which talk about people not leading evidence that was within their power to lead, and inferences that can be drawn from that. Move on?

Mr M Testart: Your Honour, I can assist the court.

Walters FM: I don t want you to assist the court. Move on please, Ms Teicher.

Mr M Testart: It s going to be impossible for your Honour to draw adverse inferences when my client is ready, willing and able to - - -

Walters FM: Mr Testart, Mr Testart - - -

Mr M Testart: - - - provide the evidence to the court.

Walters FM: Mr Testart, sit down. Mr Testart, sit down.

Mr M Testart: I seek to do that, your Honour.

Walters FM: Mr Testart - - -

Mr M Testart: In discharging his obligations judicially.

Walters FM: Look, you haven’t discharged your obligations as counsel for a very long time during this case.

Mr M Testart: You can cry over spilt milk or we can clean up, your Honour.

Walters FM: Mr Testart, I am not interested - - -

Mr M Testart: I suggest that we clean it up because we need to be fair here. There is not enough pieces in the jigsaw puzzle for your Honour to make a fair decision.

Walters FM: That is your problem, Mr Testart.

Mr M Testart: Well, it is everyone's problem. Section 79(2) - - -

Walters FM: Mr Testart, it is your - - -

Mr M Testart: Puts a big duty on your Honour to be fair, just and equitable in all of the circumstances. Your Honour can t turn his mind away from relevant evidence which may assist him in making a fair determination of the property under section 79. You can’t do that. It is just not judicial. There’s - - -

Walters FM: Mr Testart, I have ruled against you. Sit down or I will call the security and ask you to be removed.

Mr M Testart: Well, your Honour - - -

Walters FM: Sit down, Mr Testart.

Mr M Testart: It is not the appropriate course of action, although I have invited you to charge me with contempt.

Walters FM: Your rudeness ... is unacceptable.

Mr M Testart: Well, I am not being rude.

Walters FM: Call security please.

Mr M Testart: I am trying to assist your Honour with my submissions ....

Walters FM: Sit down, Mr Testart. You are not assisting me. ...Just sit down, Mr Testart.

Mr M Testart: How are you purporting to remove me?

Walters FM: I am demanding that you sit down and listen to what I have to say because I am about to rule on something, Mr Testart. Thank you. You listen to me.

Mr M Testart: I was making a submission.

Walters FM: You listen to me, Mr Testart. You are a rude man and you are acting unprofessionally. Now you listen to me. Every single time that parties apply to introduce into evidence material that is prepared late, it is a given that that evidence will be relevant. If it is not relevant, no application could be made ever for it to be produced late. Do you understand?

Mr M Testart: Yes, but it is important.

Walters FM: Just listen to me, Mr Testart, and stop arguing. It is always the case that people who produce late material try to say it is relevant, it is important, it should be accepted. I have ruled it is not being accepted. If you don’t accept my ruling, Mr Testart, get up and leave the court and you can be discharged as counsel and your instructing solicitor can be contacted and take over. I make the rulings in this case. Do you understand me?

Mr M Testart: Oh yes, I understand you.

Walters FM: Now sit down and be quiet. Cross-examination is continuing. Please continue, Ms Teicher?

Ms Teicher: If you - - -

Walters FM: Mr Security Officer, I have called you in because we have got very close to a situation where I have been threatened by counsel. I will not allow that to continue. If Mr Testart does not control himself and accept rulings of the court, I will require that he be removed from the court.

Mr M Testart: I deny that I have in any view threatened you, your Honour. That’s quite simply false. It’s a big difference - - -

Walters FM: You said before you made a complaint against me, good luck to you, Mr Testart.

Mr M Testart: That is not a threat.

Walters FM: Sit down. Sit down.

Mr M Testart: And your Honour, there is a big difference between being interrupted or interrupting you and threatening you, your Honour.

Walters FM: Sit down and be quiet, Mr Testart. Please continue, Ms Teicher?

Having regard to the events which led up to the second exchange, including the first exchange (which occurred approximately 10 or 15 minutes before the second exchange) and approximately six days of extraordinary behaviour), I reject any suggestion that counsel's behaviour was other than exceptional, and wholly unacceptable. Similarly, when put in context the court's response was neither disproportionate nor inappropriate. Most importantly, however, nothing that occurred in either the first exchange or the second exchange could properly satisfy the relevant test relating to apprehended bias . The same applies when the two exchanges are read together. Whatever a fair-minded lay observer might have reasonably apprehended after observing the first exchange and the second exchange, that observer could not possibly have reasonably apprehended that the presiding judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he was required to decide. I suspect that a fair-minded lay observer would almost certainly have thought that there was considerable tension between counsel and the bench, and that counsel was behaving in a petulant, provocative and inappropriate manner (and would have wondered why the court seemed prepared to put up with it).

A few minutes after the two exchanges (the first exchange and the second exchange), I summarised my views in the following passage:

Walters FM: Before we proceed further, Mr Testart, I want to make it crystal clear, I have referred in the past to Grimwade & Meagher .... I am extremely discomforted by your behaviour during the course of today, as I have been discomforted by your behaviour on other occasions .... This Court has an obligation, and Federal Magistrates have an obligation, not to delay proceedings unduly. The objects of the Rules, which are set out at Rule 1.03, are expressed to be to assist in the just, efficient and economical resolution of proceedings. Rule 1.03(2) reads:

In accordance with the objects of the Act the aim of the rules is to help the Federal Magistrates Court –

firstly, to operate as informally as possible;

secondly, to use streamlined processes; and

thirdly, to encourage the use of appropriate dispute resolution procedures.

Rule 1.03(4) reads:

To assist the court the parties must –

firstly, avoid undue delay, expense and technicality; and

secondly, consider options for primary dispute resolution as early as possible.

Many of the approaches that you have taken ... have been unduly technical, in my opinion. You have behaved in an adversarial manner towards the court and towards your opponent, Ms Teicher, far more than reasonably can be expected from a member of counsel. You have adopted a confrontational and frequently rude approach to the court and to Ms Teicher. In my view, you have acted so unprofessionally at times as to mean that your representation has been (the equivalent of) less than no representation from the point of view of (the husband), who is currently in the witness box and can hear my comments, but to actually harm his case. I will do the best that I can to ensure that (the husband) –

(Walters FM addresses the husband): I can assure you, that the extraordinary behaviour of your counsel will not harm the case that is being presented to me on your behalf, but I am concerned that your current counsel and the way he is conducting the case amounts to a situation where it is worse than having no lawyer. Nevertheless, you have a right to have counsel of your choice and I will protect that (right) to the extent that I am able, but I am not prepared to allow further confrontations to result such as occurred earlier today and have occurred in the past.

(Walters FM returns to addressing counsel for the husband): This Court has significant power. It includes power to place limits on the length of oral argument, to require written submissions and ... to ask witnesses questions directly when it is thought necessary, and (to ask those questions) quite firmly to elicit relevant evidence from (the witnesses). I am giving you fair warning now, ... I will apply the powers that I have under Grimwade & Meagher to ensure that this case does not go off the rails again. When I rule, ... that is the end of the story. (It) is your professional obligation to accept the ruling of the court. By all means you can put your submissions, but after I have ruled, that is the end of the story. I will not accept your rudeness and your unprofessional conduct any further. If you behave in this manner again, I will take steps under Grimwade & Meagher without further notice to you to remove you as counsel from this matter .... Do not argue with me. Do not roll your eyes and make faces at the other counsel as you have done. Do not suggest that I am not telling the truth when I describe your behaviour – and if you are not aware that you are doing it ... then you must seek professional help, because I can tell you that that is the behaviour that I have watched for days and days. It is now on the record. You stand on notice that this Court must control its proceedings. In due course any submission that you are going to make to me I will require to be in writing, because I simply do not trust you any more ... to make professional, balanced submissions such as you are required to make as a member of counsel. When the time comes, closing submissions, regrettably, from both sides, will be have to be in writing. I will limit them (as the law says that I am permitted to do) to a certain number of pages. I have ruled ... that certain late filed material is not to be admitted in this case. That is the end of the story. You may not like the ruling but you must accept it. That is your obligation as counsel. If you don’t like it, then, as I said, you can take it to another place, as is your right. But in this Court, you must accept the rulings and you must begin to behave professionally, as you have not done to date. Frankly, I am not putting up with it further. I am having a break for a few minutes now and the trial will proceed. If you behave as you have done in the past and argue with me and ... display rudeness to the court and to opposing counsel, and indirectly to your own client – who relies on you to act professionally to assist him in his case – then I will remove you as counsel. That is what I am telling you. Now, think about it over the break and we will see whether we can bring this trial to a sensible conclusion as quickly as we possibly can, so that neither party is further disadvantaged by extraordinary behaviour on your part. Thank you.

At the completion of Ms Teicher's cross-examination of the husband, Mr Testart addressed the court as follows:

Mr M Testart: ... If I could just take this brief opportunity to respectfully affirm my obedience to the Federal Magistrates Court of Australia and to recognise the orders the court makes and to say, with respect, to the events that transpired earlier this morning, if I can say that if I aspire to the ideals that Lord Denning noted in his dicta where counsel should aim to be courageous and courteous. It may be said that perhaps I ought to trade some of my courage for a bit more courtesy and to say that I will continue to aspire to that ideal in order to assist your Honour in presiding over this matter. I would also like to reaffirm my obedience to the Rules of this Court.

Walters FM: Thank you for that. Just don’t forget the second part of Lord Denning’s (comment), and I shouldn’t either. But let’s just move on and try and get this case finished for the benefit of these parties.

Mr M Testart: That’s certainly my personal and my professional desire ...