(e) acting out of "a personal hatred for the appellant" and screaming at the appellant in the course of the proceedings.
7 In the summons, there are a number of similar allegations at paragraphs 42-45 under a heading referring to Ms Adamson. While, at least for the most part, no express reference is made to Mr Griffin by name, he correctly inferred that his position was similar to that of Ms Adamson. Each of them was, accordingly, required to give consideration to r 101 of the New South Wales Barristers' Rules, which provides in part:
"A barrister who has reasonable grounds to believe that there is a real possibility that the barrister may cease to be solely a disinterested advocate by becoming also a witness in the case or a defender of the barrister's own personal or professional conduct against criticism must return the brief as soon as it is possible to do so without unduly endangering the client's interests …."
8 There are exceptions, including where the barrister believes on reasonable grounds that the allegations have been made in order to remove the barrister from the case; no exception is readily available in the present circumstances. Accordingly, whilst the allegations are maintained, either in the notice of appeal or in the material supporting the summons, both Ms Adamson and Mr Griffin are likely to return their briefs, thus requiring the Commission to seek alternative counsel, who will not have had the benefit of preparation for and appearance in, the Medical Tribunal hearing, which ran for some 39 days.
9 Pursuant to Pt 28, Div 2 of the UCPR, orders may be made for the decision of any question separately from any other question and before "any trial" in the proceedings: r 28.2. In appropriate circumstances, that provision may apply to proceedings in the Court: r 51.1(3).
10 At first blush, the Commission's application is attractive. It would appear to provide a mechanism "to facilitate the just, quick and cheap resolution of the real issues in the proceedings", pursuant to s 56(1) of the Civil Procedure Act 2005 (NSW). However, experience suggests that such an appearance may be deceptive. For a number of reasons, I do not propose to take the step suggested.
11 First, as the Commission accepts, it will have to brief new counsel to deal with the grounds sought to be addressed separately. Secondly, it is by no means clear that a clean separation can be achieved. As the appellant explained, and as must be an essential part of his case if the conduct of counsel is to be relevant to his challenge to the decision of the Tribunal, there is a close connection between the allegations against counsel and the complaints about the manner in which the Tribunal (and in particular its Chairperson) handled the proceedings. Thirdly, it is by no means self-evident that, even if the Commission were entirely successful in having all allegations about the conduct of its counsel removed from the proceedings, counsel would regain a position of disinterest. Apart from anything else, any ruling the Court might make on such matters would remain a potential basis for a special leave application to the High Court through the remainder of the proceedings in this Court.
12 Having rejected that application, it is apparent that the Commission will almost inevitably need to brief alternative counsel and that those counsel will need to become familiar with the proceedings. Accordingly, there is likely to be some delay before the Commission is in a position to indicate how it wishes the proceedings to be addressed.
13 If I had been minded to accede to the application, it would then have been necessary to determine whether the application could be dealt with by a judge of the Court, pursuant to s 46 of the Supreme Court Act or whether it required a court constituted by three or more judges, pursuant to s 43. There may have been a further question as to whether, if a single had power to deal with such an application, it would have been appropriate to deal with the matter in that way. In the circumstances, these questions do not arise and need not be further addressed.
14 As already indicated, there remain significant problems with the notice of appeal, the summons and the four volumes of material which accompany the summons. In addition to the matters referred to above, the following matters may be noted: