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Familiarity may breed resentment

Familiarity may breed resentment

By Steven Sapountsis

Advocacy Courts 

Quite some time ago, while waiting for court to commence, counsel for the parties engaged in the usual chit-chat with the judge’s associate. After a trial lasting several days, our client lost the case. He said he was not surprised he had lost as the barrister for the other side seemed much more familiar and friendly with the judge’s associate than our counsel, and that must have influenced the judge. While there was no foundation for such an assessment, it did underline how important appearances are in the courtroom and how the parties, rightly or wrongly, can pick up on visual or verbal cues and treat them as being a factor in the court’s decision-making. Experienced practitioners are aware of this, but I am reminded that while a show of familiarity or friendliness in a court or tribunal is seen by an advocate as being polite, it may still be inappropriate. VCAT president Justice Greg Garde has written an article in the recent Victorian Planning Environment Law Association Revue entitled “Please feel comfortable at VCAT; but not too much”. In the article, His Honour gives an example of an unrepresented litigant who hears the lawyer for the other side “call the member by their first name, make reference to a previous case, or joke about a café they saw each other in on the weekend”, and where the lawyer notes any other personal details that the lawyer knows of the tribunal member because of a past or current association, or from just “being around the traps”. That show of “bonhomie” as His Honour calls it, is likely to be seen by the party on the other side, represented or not, as putting them at a disadvantage because of the connection between the advocate for one side and the decision maker. It is from that feeling of being disadvantaged that complaints are made by disappointed litigants, questioning the independence of the adjudicator.

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