Land Court Judge Biased

Front page from Todays Australian Newspaper. This is the type of character NHC has to deal with.

Appeals court declares ex-judge ‘irrational’ in anti-coal ruling Retired Land Court judge Paul Anthony Smith, photographed on Tuesday, was found to display apprehended bias against the New Hope mining company.exclusiveJamie WalkerASSOCIATE EDITOR@Jamie_WalkerOz 12:00AM October 23, 2019A Land Court judge deemed to be “irrational” by Queensland’s highest appeals court has quietly retired, raising searching questions about the performance and accountability of the state’s judiciary.Paul Anthony Smith left his $412,956-a-year post as a presiding member of the Land Court of Queensland ahead of the ruling by Court of Appeal president Walter Sofronoff that he had formed an “extreme and irrational animus” towards a coalmine developer during high-stakes court proceedings.Justice Sofronoff upheld an earlier Supreme Court finding that Mr Smith displayed apprehended bias against the New Hope Group, which wants to expand its Acland mine, west of Brisbane, with an open-cut operation three times the size of Adani’s controversial Carmichael coal project in the state’s central west.Read NextrugbyCheika spanner in Israel Folau caseJamie PandaramJustice Sofronoff warned that bias by judges undermined the justice system. “Allegations of bias, whether actual or ostensible, constitute a challenge to the very validity of a judicial decision,” he said. “Such allegations involve an assertion that the administration of justice has failed.”The decision by the Court of Appeal last month will add to the clamour over the relatively light sentence meted out on October 12 to child molester Sterling Free, 27. He abducted and sexually abused a seven-year-old girl after she became separated from her mother in a north Brisbane Kmart, but will be eligible for parole within two years under the orders made by a District Court judge.State Attorney-General Yvette D’Ath is under pressure to appeal against the sentence from federal Home Affairs Minister Peter Dutton, the Queensland Liberal National Party opposition, victims’ rights groups and child safety campaigners Bruce and Denise Morcombe, who lost their son, Daniel, to a sex predator in 2003. A recommendation by the state Director of Public Prosecution to Ms D’Ath is pending.Her office confirmed that Mr Smith retired from the Land Court on May 31, but would not be drawn on whether he had faced sanction over his handling of the Acland case.Ms D’Ath’s spokesman said: “The Attorney-General doesn’t comment on individual judges, past or present, but she would like to acknowledge the improvements at the Land Court over the last 12 months, which include dramatic reductions in the time taken to deliver judgments.”A finding of apprehended bias against a judge is rare, but the blunt language of Justice Sofronoff, a highly regarded former Queensland solicitor-general, catapults the judgment into the realm of the extraordinary.It came after Mr Smith recommended that the state government reject applications by New Hope subsidiary New Acland Coal to ramp up production by an estimated seven million tonnes a year through the planned pit.Formerly a high-flyer in the Department of Premier and Cabinet, Mr Smith was appointed to the Land Court in 2004 by Peter Beattie’s Labor government.In May last year, on appeal by the company, Queensland Supreme Court judge Helen Bowskill set aside Mr Smith’s orders, finding that his reasons were inadequate and there were reasonable grounds to apprehend bias on his part.Protest group Oakey Coal Action Alliance took the case to the Court of Appeal, where Justice Sofronoff zeroed in on a heated exchange on February 2, 2017, between Mr Smith and New Acland barrister Peter Ambrose QC.From the bench, Mr Smith had taken umbrage at a report in Brisbane newspaper The Courier-Mail that his decision to go on leave had delayed the case, “creating the flavour in the community … the judge is taking holidays and costing lots of jobs”.He said this could bring the court into disrepute or undermine public confidence in the court, potentially a contempt offence.Mr Smith said he had worked long hours and through sickness, at one point keeping “a bucket below the bench here so I could sit for a week when I was sick to the stomach to throw up in”.Mr Ambrose argued, however, that The Courier-Mail report could not be read as bringing the court into disrepute, a proposition Mr Smith rejected.“Well, we operate in a different universe,” he told the silk.Compounding Mr Smith’s woes, in August last year the newspaper put him at the top of the table of globetrotting Queensland judges, revealing he had racked up costs of $50,794 on a taxpayer-funded trip to Italy, Britain, Ireland, Austria, Malta and Ukraine between May and July 2018, and $7874 to visit Singapore and Hong Kong in February 2017.Justice Sofronoff found the reasons Mr Smith cited for his orders against the company contained errors of fact and “unnecessary, unsupportable and irrational criticisms” of New Acland’s commercial and litigious behaviour. “In such circumstances, a reasonable lay observer might well conclude that the member was, at that point of the proceedings, animated by an extreme and irrational animus against Acland,” the judge said.He found Mr Smith had directed sarcasm at the company and was combative and argumentative. Although New Acland’s lawyers had conducted themselves in an orthodox and proper manner, he wrongly accused them of playing games, “wormings and turnings” and departing from every tenet of “common-law justice in this world”, Justice Sofronoff said.The Court of Appeal president, with judges Anthe Philippides and Martin Burns concurring, said it had not been “rationally open” to Mr Smith to contend that The Courier-Mail’s mention of his February-March 2017 holidays represented an attack on his credibility, possible contempt of court and an attempt by the company to distort the facts and erode public confidence in the court.“The story contained no imputation against the member’s integrity but merely reported the true fact that the conclusion of the litigation would be delayed for the stated reasons,” Justice Sofronoff said in the judgment.Further, Mr Smith’s appropriation of cult movie The Castle to frame the dispute had been “wholly inappropriate”. One of the principal objectors to the mine expansion, Glenn Beutel, a local refusing to sell his home in the ghost town of Acland, had been likened by Mr Smith to the hero of The Castle, which the Land Court judge lauded as being a film about a “little person trying to protect his property from a corporate giant”.Justice Sofronoff said: “It is notorious that in The Castle it was the ‘little person’ who ultimately won the litigation and that the ‘corporate giant’ had behaved unethically and had lost. Whatever might be the respective financial power of the litigants, it is the duty of a court to afford them equal justice and to favour neither of them, where rich or poor, for irrelevant reasons. The member’s use of this simile was wholly inappropriate and conveyed partiality by reason of sympathy.”New Hope declined to comment, pending further orders from the Court of Appeal. With a projected yield of 7.5 million tonnes of coal annually, New Hope claims the new pit would deliver economic benefits to the state of $8bn over 12 years. Critics of the development, including Sydney radio broadcaster Alan Jones, who grew up in the area 50km west of Toowoomba on the Darling Downs, insist it would destroy some of the best farmland in the country.Land Court judges in Queensland are paid the same as those of the District Court, earning $382,108 in yearly salary, lifted to $412,956 by benefits.