With Kathy Jackson due back in court in a fortnight’s time, one wonders what will come next to try to avoid facing the consequences of her actions.
The Heery Report into the actions of her partner, former Vice President of the Fair Work Commission Michael Lawler, gives an insight into just how strange this saga has been.
On 20 June 2014, Ms Jackson was due to appear at a directions hearing in the Federal Court of Australia at Melbourne before Justice Tracey, in proceedings commenced against her in the previous year by the HSU.
At 8:52 am on the morning of 20 June 2014, Mr Lawler sent an email to Justice Tracey’s Executive Assistant.
Dear [Executive Assistant]
I am the partner of Kathy Jackson.
I write as her partner in the discharge of my family responsibilities in respect of my beloved partner.
The need for me to take the step of writing to you causes me acute embarrassment because I happen also to hold the office of Deputy President of the Fair Work Commission. I am mindful of the duties of my office. I would not ordinarily write to you save that extraordinary circumstances obtain, and after taking counsel, I have conscientiously adjudged that I should write this email to you to inform his Honour that private circumstances have arisen since she returned home last evening which mean that she cannot appear in person at today’s mention.
She asked me as her partner, and I have agreed as her partner, to make application to the Court to seek leave to appear as her McKenzie’s friend to assist the Court in relation to the mention of the matter.
I will make that application when you call Ms Jackson’s number.
I do not relish having to make that application but in circumstances where there is no one else to act for her and she is mindful of not committing a contempt of the Court, I will make that application, and seek relief from whatever riles [sic] may be required for that application to be considered by his Honour.
I have a detail understanding of the case and can speak to issues of non-compliance.
If the Court insists on Ms Jackson appearing in person, I will wake her. I humbly beseech his Honour not to require that of me.
as partner of Katherine Jackson
Not quite the language one would expect from a member of the judiciary in correspondence with the court.
The directions hearing commenced at 9:35am. The transcript describes Vice President Lawler as appearing for Ms Jackson. At the commencement of the hearing, the transcript records the following exchange:
MR M. IRVING: I appear for the Health Services Union.
HIS HONOUR: Yes, Mr Irving. And I understand, Mr Lawler, you’re on the line.
MR M. LAWLER: Yes, your Honour. I have an application to make potentially depending upon what Mr Irving says. Your Honour should be in receipt – or your Honour’s associate should be in receipt of an email that I sent earlier this morning.
HIS HONOUR: I have read the email and I’m sure that you’ve made a mistake in referring to the proposed role as a McKenzie friend because I’m sure you’re well aware McKenzie friends cannot be advocates.
MR LAWLER: Well, I have to confess my ignorance, your Honour. I had thought that was the correct term and if I have erred, I apologise.
HIS HONOUR: Yes. Well, you might like to consult the authorities but they’re quite clear that a McKenzie friend is someone who can sit in court, quietly take notes, advise, but not act as an advocate and certainly not act as an advocate in the absence of the party concerned.
MR LAWLER: Of course, your Honour. I would not countenance for one moment pressing any application from the court that was inconsistent with the authorities and I’m grateful to the court for pointing them out to me.
HIS HONOUR: Well, you’re more than welcome to listen in on the proceedings and you may, of course, take such notes as you may wish and you may relay what is said here this morning to Ms Jackson.
MR LAWLER: Thank you, your Honour.
Following this exchange, the hearing then proceeded with Mr Irving on behalf of the HSU making submissions with respect to various procedural issues that had arisen in the conduct of the proceedings. After approximately 10 minutes, however, Vice President Lawler interrupted and began to participate in the hearing. As the above exchange makes plain, this was contrary to the express direction of the presiding judge.
For the remainder of the hearing, Vice President Lawler made submissions on behalf of Ms Jackson, asked questions of the Judge, requested that a photo of Ms Jackson be removed from the internet, and also provided information about certain aspects of Ms Jackson’s case, including an intention by her to seek an application that the proceedings against her be dismissed on account of the Union being guilty of an abuse of process and fraud on the Court.
On 23 June 2014, Vice President Lawler sent an email to Acting President Hatcher, Justice Ross, Vice President Catanzariti, Deputy President Smith, and Senator the Honourable Eric Abetz, the then Minister for Employment.
In his email, he sought to make a number of points, which included the following:
His involvement in the hearing occurred in extraordinary circumstances, namely that:
(i) Ms Jackson had been fully occupied in the Royal Commission for some weeks, and found herself unrepresented at the eleventh hour and with no practical capacity to ready herself for the hearing.
(ii) She sought an adjournment which was refused
(iii) Distressing personal circumstances on the evening of 19 June 2014 prevented Ms Jackson from sleeping for most of the night, which meant she was in no position, or state of mind, to engage with the Federal Court proceedings
(iv) There was no time to obtain a medical report or fresh legal representation (which she could not afford in any event)
(v) He adjudged that waking Ms Jackson to participate in the hearing could be seriously injurious to her health and would have involved him in a grave breach of his family responsibilities.
Will Lawler represent his beloved on January 24 as she again faces 70 theft and deception charges?
Will he think it worth waking her for this time?
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