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An NSW magistrate was removed from a trial over “deeply sarcastic and critical” remarks he made towards a defence lawyer, but transcripts of a three-day hearing revealed the lawyer had picked fights, was “unacceptably rude”, and bullied a police prosecutor.

Supreme Court’s Justice Julia Lonergan made the “reluctant” decision to remove magistrate Mark Richardson from proceedings brought against former vice-chancellor of the University of New England, Brigid Heywood, over an incident involving a child.

Heywood’s counsel for the bias hearing, Slade Howell, complained Richardson made comments during a three-day hearing in July 2023 that suggested he thought her Local Court lawyer, Jack Pappas, was being “incompetent, rude, discourteous and a time-waster”.

Although Justice Lonergan agreed Richardson’s comments would lead a fair-minded lay observer to consider he held a “dim view” of Pappas – and may be biased in his decision making – she noted Pappas was at times offensive, belittling, and “unacceptably rude”.

“Pappas’ behaviour was rude, defensive and obnoxious, but the magistrate has a deep-seated obligation to ensure the outer signs of impartiality are exhibited at all times and to deal with legal representatives for both sides in an even-handed fashion.

“If there is a slip into misunderstanding or outburst of temper or annoyance, there is a need to ensure they do not recur,” she said.

Justice Lonergan included a number of examples to show the deterioration in behaviour from both sides, including an exchange that occurred due to Pappas’ frustration with objections made by the prosecutor to his examination of a 17-year-old girl.

At one point, Pappas said it was “not helpful” for the prosecutor “to make general objections because my friend doesn’t like the way I ask a question, which seems to be the substance of this objection”.

Justice Lonergan said it was an example of Pappas attacking the prosecution “rather than just dealing with the substance of the objection in an appropriate fashion” and that he used “stertorous and lecturing” tone that was “offensive and belittling”.

It led to the following exchange:

Prosecutor: Objection, Your Honour, to that. It’s harassing and intimidating of the witness. She’s answered it and now he’s putting forth the statement for an answer. That’s his wording.

Pappas: That is just a silly and obstructive objection which Your Honour needs to control, with great respect.

Prosecutor: Well, Your Honour, he’s still bombing the witness.

Pappas: There’s been too many of them. There’s been too many of them.

Richardson: I’m sorry, Mr Pappas. I won’t have any person speak to me like that.

Pappas: Sorry, Your Honour?

Richardson: I won’t have any person speak to me like that.

Pappas: Sorry, is Your Honour addressing what I’ve just said?

Richardson: Yes, I do.

Prosecutor: Well.

Richardson: I will govern this court according to the law and according to my experience and with propriety, sir.

Pappas: Yes, indeed.

Richardson: She’s made an objection, and you have saw fit to belittle it.

Pappas: Yes, I have.

Richardson: Well, don’t.

Pappas: Well, I do so.

The exchange deteriorated even further, with Justice Lonergan setting out the following:

Richardson: Ask your question.

Pappas: No. With great respect, Your Honour.

Richardson: Don’t “with respect” me, sir. Ask your question.

Pappas: Your Honour, I will not be bullied.

Richardson: I am not bullying you.

Justice Lonergan said Richardson’s tone was “crisp and quiet”, and it was evident he correctly considered Pappas was “bullying” the police prosecutor by using “unduly personal and insulting terms” to articulate his responses to her objections.

Howell said it was an example of Pappas trying to “bring to a head” an issue he was having with the prosecutor, but Justice Lonergan said that was an “overly generous view” of what occurred.

Later during the proceedings, the “push and shove” between the two led to a “threat” that Pappas would be removed.

“This is frankly a shocking suggestion and has well crossed the line from a ‘short emotional exchange’ into something entirely more serious,” Justice Lonergan said of this escalation.

There was then an exchange after an “unfortunately phrased question” that prompted Richardson’s derision and sarcasm.

It is set out as follows:

Prosecutor: Objection, Your Honour. She can’t comment on whether she was visibly upset.

Richardson: Yes, of course she can’t. Why don’t you ask a question she can answer. Was she upset? Was she crying?

Pappas: Would Your Honour [cut off].

Richardson: Visibly upset is not something she can answer. Just think about it, Mr Pappas.

Pappas: I am thinking about it, Your Honour. I’ve been doing this for a very long time.

Richardson: Apparently.

There was then the following exchange, which referenced the quip about the phrase “with respect”, noted above:

Richardson: When you ask – yes, you are, with respect. Ask the question, please.

Pappas: Prefacing it with ‘with respect’ doesn’t make it a fairer hearing.

Richardson: That’s what I said to you earlier on.

Pappas: Yes.

Howell submitted this was evidence of Richardson “openly mocking” Pappas, and Justice Lonergan agreed he was and there was contempt for his ability “to ask an adequate question”.

The second day of the hearing was opened with Pappas’ lengthy application to have Richardson disqualify himself. It was refused.

Justice Lonergan noted that while Pappas’ application began with some restraint, the “vehemence in tone” and the “loaded and personal criticisms” included during his submissions were “excessive and unnecessary in an application for apprehension of bias”.

Howell said disdain from Pappas was made clear after this application was made, including in the following exchange:

Pappas: Your Honour’s animosity towards me is palpable.

Richardson: I have no animosity towards you.

Pappas: Your Honour clearly does.

Richardson: Come on.

Pappas: Clearly does. I know Your Honour wishes to deny that.

Richardson: Mr Pappas, I don’t even know who you are.

Justice Lonergan said by day three, the fair-minded lay observer would have thought he was “contemptuous” of Pappas.

“The way Pappas chose to voice his concerns was offensive, supercilious and unprofessional, but the initial even-handedness of the magistrate evaporated and gave way to sarcasm and belittling of Pappas,” Justice Lonergan said.

She added the remarks “went well beyond case management, occasional flares of ill-temper, misunderstandings or redirection of counsel to relevant issues”.

The case is Heywood v Local Court of New South Wales [2024] NSWSC 1047