NCAT sucks
Wednesday, June 30, 2021 The Bureau de Spank's decision not to spank a barrister over his nasty sexist piggery has caused ructions up-and-down the Street of Shame ... Attack on female barristers' clerk ... EFA, A and H ... All OK because the brief has reflected on his conduct ... Frame by frame analysis ... Name suppressed to protect offender from further harm ... Janek Drevikovsky reports
Cole face ... former South Australian judge now NCAT deputy president
A Sydney barrister - call him EFA - is one of a handful of briefs invited to an annual clerks' dinner. He and a mate get black-out drunk and try their hands at a bit of "horseplay".
The pair give onlookers a tour through all the tropes of unreconstructed blokery: mimed violence, vulgar abuse and barely-concealed homophobia.
Then EFA decides some audience participation would be a good idea: so he picks on a female assistant clerk. He tells her to "suck my dick" while forcing her head in the direction of the table.
For his trouble, EFA has incurred no fine, no ban from practice - not even public ignominy. His name will stay suppressed as long as the Civil and Administrative Tribunal sees fit - the sort of decision that is wildly out-of-step with efforts by the professional guilds to stamp out sexism, harassment and unwelcome boyo stuff.
The lads "horseplay" took place in July 2017. The female clerk, known as "H", complained EFA had forced her to simulate oral sex, moving her head back and forth in the direction of his crotch.
After this bout of ersatz fellatio, the barrister said "don't complain about me to the Bar Association", according to H.
EFA and his friend, "A", had only "limited recollection[s]" of the evening's proceedings, and what they did recall was to be given no weight, the tribunal said.
But the clerk's version of events also wasn't quite correct, found former South Australian District Court judge Susanne Cole, Sydney brief Peter Callaghan SC and tribunal member Elayne Hayes.
Cole left the SA Environment, Resources and Development Court in February 2019 and came to Sydney as deputy president of NCAT and head of its administrative and "equal opportunity division".
The NCAT decision in the EFA case caused great interest at the SA bar 'n' grill, as Cole had previously been married to former Labor candidate and family man Justice Tim Stanley of the SA Supremes.
EFA had not moved H's head "back and forth", the panel held, and he had not asked the clerk to not make a complaint.
The whole thing, the tribunal said, was a "very poorly judged" attempt by EFA to involve H in a "ritualised greeting" with his mate, A.
The tribunal dissected CCTV footage of the night, viewing it "at close quarters", "at real time speed" and "in slow motion" - and even "frame by frame".
Here, they said, is what happened:
"As he approached the table, EFA gestured to A, sticking up the middle finger of his right hand. A raised his hands to cover his face, his right hand behind his left hand. He then moved his left hand to reveal that the middle finger of his right hand was raised toward EFA.
"This interaction occurred with H located between A and EFA, and she could see the interaction between them.
"EFA moved towards A, who was still seated, and took hold of A's head. EFA moved A's head forwards and back from EFA's crotch several times. H was looking at A when this began, and then she looked away and then looked back.
"When EFA released A's head, A was smiling and looking up at EFA. H was also looking up at EFA.
"EFA, still behind and to the right of H, touched H's head with his left hand and lightly pushed it forward, over the table, whilst saying something.
"H's head moved forward and down, slightly, and then H moved her head back quickly. She had a shocked look on her face, with her mouth open in an 'O'. She did not speak at that point."
All this took less than two minutes, just before 11 pm, on a boozy winter's night.
The tribunal found this course of events amounted to unwelcome sexual conduct. But it was not an unwelcome sexual advance against H: it was a bit of offensive and ill-judged horseplay, amounting only to unsatisfactory professional conduct.
And, of course, boys will be boys - especially if they grovel in all the right ways and have five glowing character references.
The tribunal was convinced EFA had learnt his lesson:
"For almost four years, since shortly after the incident in July 2017, EFA has reflected constantly on his behaviour during the incident.
"His physical health has suffered significantly. His mental health has also suffered significantly. His marriage has been severely, adversely affected."
A reprimand and a costs order was more than enough punishment, the tribunal decided.
They also decided to keep EFA's real name in a state of suppression. He was suffering from a "major depressive disorder", they heard, and was at risk of suicide if his name was made public.
And it's a relief to know that EFA did not pose a risk to "anyone, including his future clients, on account of the kind of conduct the subject of this matter".
The finding comes in the footsteps of other instances of suppression and cover-up by judicial types in NSW: NCAT: a wet lettucing from NCAT in a case of "vile" racist, homophobic vilification, special treatment for solicitors, barristers and judges to keep their names out of the papers, and suppression of a lawyer's identity in a misappropriation case. More suppression details here.
The bar 'n' grill has lodged an appeal against EFA decision, although it didn't argue in the tribunal against the non-disclosure order.
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