David Heilpern throws the book, misses, and throws it again

This could become part of a series.

David Heilpern is a prominent   magistrate who currently presides on the north coast of NSW.  I have noted one  of his decisions before on this blog.  Early in his career on the bench he handed down a courageous decision concerning offensive language.  Prior to his appointment he had a rather odd walk-on role as a recipient of confidences from Atticus Busby concerning the alleged confessions made to Mr Busby (then a student at Southern Cross University where Mr Heilpern was a lecturer) by Irena Hatfield concerning the death of her husband in 1985 (for which she was subsequently tried and acquitted).

But I digress.

As part of his duties, Mr Heilpern presides in the Children’s Court of NSW.

On 5 July 2011, he presided over a matter concerning 5 children who had been placed in the care, notionally, of the Minister, but actually in the care of foster carers selected by an agency which has had its own colourful rise to prominence, Life Without Barriers.

On that occasion, a Mr Donaghy, solicitor, appeared for the mother.  The hearing on that day was not completed.  As Mr Heilpern subsequently put it, this was not the fault of the legal practitioners.  What he doesn’t quite spell out is that it actually was the fault of the DOCS (or whatever it is now called) officers who put on affidavit evidence which entirely failed to allude to various incidents of mistreatment of the children while they were in the foster care arranged by the agency.  This only came out when Mr Donaghy cross-examined them.

The matter was adjourned, part-heard, to 22 November 2011 in Grafton, where it was set down for two days’ hearing.  No other matters were set down for those days.

The matter at issue appears to have been whether care arrangements could be made which would enable the children to be placed in the care of relatives and presumably the conditions on which the mother would be able to see them.

At some stage, the department shifted its position to one “more favourable to the mother,” although they did involve separating the children.  The department served some care plans on Mr Donaghy on Monday 21 November, the eve of the hearing.  Two other care plans were not served then though the department indicated to Mr Donaghy what they were proposed to be.  It looked as though the matter might now be able to be settled.  A two-day hearing would no longer be necessary.  Of course, this belated concession by the department depended on the mother being able to respond to the new care plans and absorb their contents overnight.  At this stage it seems the mother did not accept that the children should be separated.  In other words, even if “favourable” to the mother, the department’s proposal was still unacceptable to her and was being offered as a kind of ultimatum.  It appears there were discussions on that day between a Mr Wheelahan, for the department, and Mr Donaghy, but the matter was not yet resolved.

On 22 November 2011, Mr Wheelahan appeared for the department (or possibly for the minister), a Ms Steiner appeared for the children.  The mother and Mr Donaghy were not there.

Mr Heilpern learnt (somehow) that Mr Donaghy was in fact in the Federal Magistrates Court that morning at Lismore.  He stood the matter down for an hour and a half and indicated that he wanted Mr Donaghy there.  When the matter resumed, Mr Donaghy was still not there.  He had engaged a Grafton solicitor as his agent who indicated that he was instructed to seek an adjournment until the next day and that discussions between the parties were continued.

This meant a wasted day for Mr Heilpern and his retinue of court attendants and sheriff’s officers.

The next day, Mr Donaghy appeared.  The matter was resolved by consent and orders made.  But Mr Heilpern was not happy with the course of action that Mr Donaghy had adopted.  It is for the court and the court only to vacate a hearing date, and Mr Donaghy should not have taken upon himself to effect this unilaterally, including (according to Mr Heilpern) by telling his client, the mother, not to come down from Brisbane for the hearing.

There was a testy exchange between them.  Mr Heilpern informed Mr Donaghy that he was considering making a costs order against him personally. He adjourned the matter to give Mr Donaghy an opportunity to obtain legal advice, and to prepare any affidavit material and submissions.

Mr Donaghy did not prepare any affidavit or written submissions.  He appeared on the next occasion, 27 February 2012, where, according to Mr Heilpern, he

made some extraordinary submissions … in a most unseemly and rude manner. He stated that he did not make written submissions because “this is simply running up costs that I can’t recover…I’m not getting paid for this and I object to you dragging this matter out in this manner”. He stated that care was a specialist jurisdiction where specialist magistrates learn that DOCS “put forward material that is not correct, that is not complete and that is not in the best interests of the children”. He stated that I should not make a costs order against him because:

“…it would be very unfortunate for the Children’s Court to appear to consider that assaults upon 12 year old Indigenous children, locking children in their bedroom for 12 hours overnight, is somehow acceptable behaviour. And, it would also be unfortunate if the message was to be sent to the Department of Community Services, well you can file documents with the Court that are misleading and if anyone questions you, the persons who question you will be hit with a costs penalty”.

Mr Donaghy did make some more substantial submissions, including some later written communications, where he drew Mr Heilpern’s attention to decisions which held first that the power of the Children’s Court to order costs was limited to exceptional circumstances, and that in any event the Children’s Court had no power at all to award costs against a non-party, including a legal representative.

Mr Donaghy was right about this.  It follows that it was Mr Heilpern who was out of order in threatening a costs order, and he did not make one.

Regardless of the question of any costs order, he seems to have taken the view that Mr Donaghy has committed professional misconduct.

He published a judgment.  The final paragraph is as follows:

I will have the registry forward a copy of this judgment to the President of the Children’s Court. There are three reasons for this. Firstly, it may be appropriate for him to consider representations to amend the legislation to permit an order for costs against a legal practitioner. It is hard to imagine a policy reason why costs against legal practitioners cannot be ordered in care proceedings, but can be in civil proceedings. Secondly, it may be appropriate for him to forward a copy of this judgment to the Legal Aid Commission of New South Wales so that they are at least aware of the waste in this case. Thirdly, it may be appropriate for him to consider a complaint to the Legal Services Commissioner regarding the conduct of the practitioner.

The judgment includes a lengthy extract (selected, of course, by Mr Heilpern) of the exchanges between Mr Heilpern and Mr Donaghy on 23 November, as well as Mr Heilpern’s selection of a few of Mr Donaghy’s other more heatedly indignant and probably less well-judged submissions.  As the Court of Appeal has had occasion to comment on other occasions, such exchanges are rarely edifying.

In my opinion, in his concern for the court’s dignity and control of its own processes, Mr Heilpern has chosen to overlook the fairly obvious point that, had Mr Donaghy and his client turned up on the 22nd of November, just as much court time and resources (as well as Mr Donaghy’s own costs, presumably also met from the legal aid budget) would have been wasted, because at that point his client (the mother) had not agreed to the department’s proposals.  The party which should have sought an adjournment at the earliest opportunity was the department, on the afternoon of 21 November, when discussions between Mr Wheelahan and Mr Donaghy were taking place.  My own experience of litigation against government departments leads me to the view that at least as much ink could have been spilt excoriating the department in question for this as thundering from the bench against Mr Donaghy.

Postscript: but Mr Heilpern’s effort in publishing the judgment did not go to waste, as the Administrative Decisions Tribunal, unconstrained by any rules of evidence and hence section 91 of the Evidence Act, relied upon it in reaching the view that Mr Donaghy’s actions amounted to unsatisfactory professional conduct.

One Response to “David Heilpern throws the book, misses, and throws it again”

  1. Children’s court throws another book at Mr Donaghy « Stumbling on melons Says:

    […] I have written before about magisterial complaints made about him by David Heilpern in David Heilpern throws the book, misses, and throws it again. […]

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