Further Findings as to the Incapacity Issue
50 In addition to these findings, as was noted above (at [39]), there was little left in any dispute as to the Incapacity Issue by the end of the trial. It was an agreed fact pursuant to s 191 of the Evidence Act that Mr Murphy was not capable of appearing as an advocate in court, or as an instructing solicitor in court, without the use of his hearing aids and Roger devices: T93.19-22 and T95.35-45.
51 On each occasion he has appeared in court since 2014, Mr Murphy has used Roger devices: affidavit of Mr Murphy affirmed 26 February 2021 (Murphy 2) (at [12]). When he takes part in legal proceedings, he or his Counsel will seek permission to utilise the Roger devices and these requests have never been met with resistance from the judiciary. They are recharged during breaks and he brings additional charged devices to Court in case one runs out of power: Murphy 2 (at [15]-[16]). Other than by News and Ms Sharp's attempt to isolate exchanges with the judge overseeing a District Court proceeding in which Mr Murphy was a plaintiff (Mould proceeding) in order to construct a narrative of "practical challenges" occasioned by the use of the Roger devices in court, this evidence was not the subject of challenge and I accept it. Mr Laycock also gave uncontested evidence that Mr Murphy will always use the available technology where necessary to facilitate his hearing: affidavit of Mr Laycock affirmed 2 February 2021 (at [15]).
52 With respect, there was a good deal of irrelevant cross-examination of Mr Murphy as to the question of incapacity in the light of the adoption of the reports of the referee and the consistent position of Mr Murphy as to the state of his hearing and the unchallenged evidence as to the use of his devices. In fairness to Mr Sibtain, however, the position as to the extent of Mr Murphy's unassisted incapacity to appear or instruct in court was clarified, during the cross-examination, by Mr Murphy accepting the terms of the agreed fact.
53 Residual issues were raised about "fragmenting" and "body block" being occasioned by the use of the technology. No doubt there are some limitations. It may involve Mr Murphy missing some words if participants in a hearing talk simultaneously, and it is conceivable that if someone wearing a Roger device is blocked by another person Mr Murphy may experience some transient, mild difficulties.
54 It is not only in Equity that one comes across whispering practitioners. Diffident, timorous and maffling practitioners and witnesses are not unknown - even in the more robust surrounds of the criminal law. The acoustics of some courtrooms are, to put it mildly, suboptimal. In country New South Wales, it might be thought there is an inverse relationship between the age and beauty of the courthouse and the ease by which an advocate can hear the judge or magistrate. In any event, it is a commonplace that participants in court proceedings, be they litigants or practitioners, will miss words spoken by the Bench, a witness or a fellow practitioner from time to time. If words are sometimes missed, they can be repeated. The notion that Mr Murphy could appear and represent clients in court provided he obtained the assistance of hearing aids and Roger devices is one I find persuasive.
55 In this regard, the fact that Mr Murphy wears his hearing aids was again not really disputed. Mr Murphy gave evidence he wore the Phonak Naida Q90-UP BTE hearing aids from 2018 until November 2020. He found the device worked well and allowed him to hear people and participate in conversations: Murphy 2 (at [10]). Since November 2020 Mr Murphy has worn the Phonak Naida M90 SP BTE, which he has found works well and is equally good when used with the Roger devices: Murphy 2 (at [11]). This was not challenged in cross-examination, is not inherently incredible, and I accept it.
56 There was some suggestion made from time to time by News and Ms Sharp that because Mr Murphy requires Roger devices, this fact, in and of itself, meant he was "unable" to appear in court. I reject that submission. As anyone experienced in litigation would be aware, many barristers and judges, including a recent highly distinguished judge of the Supreme Court of New South Wales, have had significant hearing difficulties. Other participants in court proceedings just need to adjust. To suggest persons with hearing difficulties are unable to appear is a little like saying that someone with infirmity of sight is unable to appear. There have also been famous blind barristers and judges. Sir John Wall was a notable Deputy Master of the Chancery Division of the High Court of Justice in the 1990s. John Mortimer QC in his play "A Voyage Round My Father", memorably describes his father, a barrister, continuing to practise after he went blind.
57 What Mr Murphy said about the co-operation of others involved in the court process utilising the Roger devices is unsurprising. If it was drawn to the attention of a judicial officer that a practitioner needed others to wear a Roger device, it seems to me inconceivable that the presiding officer would not make the necessary arrangements. This occurred during the course of the proceeding before me and caused no disruption or inconvenience.
58 This conclusion, which accords with commonsense, is also consistent with the evidence of Mr Kalantzis (a highly experienced litigator with nearly 30 years' experience: T198.45-199.9). He gave evidence of acting for Mr Murphy in the Mould proceeding. He stated that he communicated in a normal fashion with Mr Murphy, that the use of the devices did not disrupt the trial (T201.14-33), and that he did not recall any relevant resistance by the judge to wearing the devices once the need for them (as opposed to a hearing loop) was explained: T198.27-35.
59 Indeed, it was obvious that during the hearing, Mr Murphy, when utilising his hearing aids and through the use of Roger devices, experienced no difficulty in hearing what was going on. In fact, he was even able to hear the oral evidence of the far from cacophonous Mr Boulten SC, who did not have a Roger device in the witness box for the majority of his cross-examination: T87.21-2.
60 Counsel for Mr Murphy makes the wry but accurate point that it was counsel for News and Ms Sharp, who cross-examined Mr Murphy, who:
… appeared to mishear things a number of times throughout (see, eg, Day 2, T149.15-19, T166.46-167.11; and generally during the cross-examination of Mr Jarratt on Day 3). To be clear, the Applicant is not suggesting (as the logic of the Respondents' defence might appear to suggest) that Counsel for the Respondents is "unable" to represent clients in court. The point is simply made that Court is a human process, in which fallible and imperfect beings participate, and where any participant can mishear or miss things - whether or not they happen to have a diagnosed condition. The respondents have simply failed to demonstrate that, with the support of his hearing aids and Roger devices, Mr Murphy is at any relevant disadvantage to practitioners without a hearing impairment that might render him "unable" to represent clients as a lawyer or advocate (cf Particular K).
(Mr Murphy's emphasis).
61 With no disrespect to Mr Sibtain, I agree.
62 For completeness, I should deal with the attempt of News and Ms Sharp to rely on Mr Murphy's concerns about using Microsoft Teams for the Mould proceeding, relatively early in the period when in-person court hearings were disrupted by the pandemic in early 2020.
63 Mr Murphy gave evidence that he experienced some technical difficulties with the video conferencing technology: Murphy 2 (at [20(b)]-[20(c)]). Mr Kalantzis, Mr Murphy's solicitor in the Mould proceeding who was present at the relevant Microsoft Teams conference when these problems were experienced, confirmed that the problem was with "feedback": T200.34 and T202.27-30. It is apparent that Mr Murphy became capable of using videoconferencing technology with his impairment. He has attended all case management conferences in this proceeding via Microsoft Teams without incident or difficulty: Murphy 2 (at [36]). In any event, as Mr Murphy correctly submits, a one-off inability to attend for a specific reason like feedback on video software would not suffice to prove the sting of the imputations which require an ongoing inability to represent clients in court to be proved.