Judge Patrizia Mercuri

 

Incompetent or Corrupt?

 

Judge Patrizia Mercuri

 

Despite having the best legal representation and, having the law clearly on her side, Stephanie's case was dismissed by Judge Patrizia Mercuri in the Federal Circuit Court.

What went wrong?

Originally the case was heard by Judge Alister McNab. An explosive argument erupted in court between Judge McNab and Stephanie's barrister Fran OBrien QC over unacceptable remarks made by McNabb that amounted to pre-judging of the case. McNab was forced to disqualify himself due to the remarks.

Judge Mercuri was subsequently appointed to hear the case. Both McNab and Mercuri have spent their careers as employment lawyers fighting against the rights of employees. McNab was required to brief Mercuri on the case. It appears, by the grossly biased behaviour of Mercuri, that McNab negatively influenced her opinion during that hand over of the case and, Mercuri has engaged in payback.

 

s5 of the Sex Discrimination Act (SDA) states:

“(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

 

Mercuri in her interpretation of "in circumstances that are the same or are not materially different" decided no discrimination occurred because a man would not be allowed to compete in a women's event.

Enforced segregation based on sex is the same as segregation based on sexual orientation, gender identity, marital status, etc (see identical provisions in SDA s5A to s7A) or race (see similar provisions in RDA s9(1A)c ). It is unlawful unless, the law allows it to be lawful.

The SDA provides an exemption for sport (s42) in circumstances where the strength, stamina or physique of competitors would make the competition uneven. Mercuri believes that the exemption is not required and that enforced segregation is not discrimination. According to Mercuri, it would be fine to create a homosexual class, or a black class, or a Muslim class etc and take disciplinary action for gross misconduct for competing in another class.

Is Judge Mercuri so incompetent that she does not understand the most fundamental form of unlawful discrimination?

 

YV/AS strategy was to deceive the court into believing no discrimination had occurred and that Stephanie was removed from the regatta because of alleged gross misconduct of Paul.

Judge Mercuri ignored the critical facts that proved this was not correct. Under the Racing Rules of Sailing a competitor cannot be canceled from a regatta after they have started competing. Also no disqualification action can occur before a protest is lodged. Protest must be lodged within 2 hours of the issue being identified. The issue was identified the afternoon previous.

YV/AS canceled Stephanie's entry in the regatta and removed her from the regatta management system without protest on the morning of the second day of racing. A protest was lodged over 8 hours after Stephanie had been removed from the regatta. At around the same time a 69 gross misconduct report was filed against Stephanie for sailing in the regatta.

YV/AS claim the gross misconduct also included alleged abuse at the boat park.

Bill Bell

Juror Bill Bell in his affidavit made the false statement that the Measurer gave evidence in the protest hearing of the dispute in the boat park. Under cross-examination, Bill Bell admitted that the Measurer was never there.

No evidence of misconduct in the boat park was produced by YV/AS.

Mark Turnbull

YV/AS also alleged Paul had committed gross misconduct at the Race Management office. This allegation was made one year after the event in a retaliatory kangaroo court.

Mark Turnbull, the owner of Newtack Events, the company that organised the event, agreed to be a witness for Paul against the retaliatory kangaroo courts to dispute the version of events at the Race Management office. He stated he was concerned as it was not in his interest to support Paul against his client but agreed to help in an email:

"I do want to clarify, that at no time did I feel that you made any direct threats (legal or otherwise) against myself / New Tack."

Incredibly Turnbull then appears as star witness for YV/AS against Stephanie claiming he witnessed Paul swearing and verbally abusing the Scorer at the Race Management office. If Turnbull, the Professional Race Officer (PRO), the Measurer and the Scorer had lodged complaints about Paul's behaviour, why was no mention of it in the 69 gross misconduct report?

Turnbull also now claimed in his affidavit that he witnessed the argument after the protest meeting between Paul and the Jury Chairman. This was at odds with Paul's affidavit that stated Turnbull had contacted him after the meeting and said he was not present but had heard what happened. In cross examination Turnbull was repeatedly asked whether he had phoned Paul. Turnbull repeatedly refused to answer yes or no, instead stating "I don't recall".

Turnbull also claimed he was not aware that Stephanie was sailing in the 49er event. Turnbull also stated his role was one of marketing and PR. When presented with a press release, prior to the event starting, approved by him, praising Stephanie for competing against the men in the 49er class he responded:

" I approved that but I didn't read it".

Stephanie and Paul

In contrast Stephanie and Paul told the truth. The verbal attack on Stephanie and Paul by barrister Callan O'Neill was disgraceful. This included walking up to the witness box and yelling directly in Paul's face.

Paul disputed the alleged gross misconduct in the boat park and later during the day in the Race Management office. Paul admitted to the heated argument that occurred after the protest meeting and he was presented with a gross misconduct charge for sailing the regatta with a female helm.

Stephanie and Paul detailed the verbal abuse Stephanie suffered at the boat park and the formal complaint immediately lodged by email to Race Management, verbal complaint to the YV President and verbal complaint to the Mark Turnbull. Stephanie disputed that Paul had at any time reacted to the abuse.

Judge Mercuri knowingly made a false statement that the decision by the International Jury to conduct the 69 hearing was made after the protest meeting when in fact, the exhibits and the affidavits clearly show the decision was made two hours prior to the protest meeting.

Paul never became aware of any gross misconduct allegations against him, other than for sailing with a female helm, until days after the gross misconduct hearing was conducted in his absence.

Paul was denied natural justice in both the protest hearing and the 69 hearing. The protest was conducted after Stephanie's entry in the event had been canceled and, was clearly pre-judged. The 69 hearing was conducted by the jury chairman after he had chased after and hit Paul, causing a heated argument. The jury chairman acted as a judge in his own cause.

Despite the false statement by Bill Bell concerning a witness to the boat park incident and, no other evidence provided, Judge Mercuri chose not to believe Paul and Stephanie's version of events. Incredibly she also found that Paul had abused members of the public, an allegation that had never been made in any affidavits or cross examination.

 

Paul's case at the Court of Arbitration for Sport (CAS) against the numerous retaliatory kangaroo courts was never heard as it was denied on jurisdictional grounds. Paul was seeking jurisdiction under Art 61(2) of the Olympic Charter:

Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration.”

The International Olympic Committee (IOC) successfully argued that there are no rules that prevent women from competing against men and, that the event has no connection whatsoever to the Olympic Games. Yachting Victoria / Australian Sailing (YV/AS) also successfully argued that it was not an elite event, not a pathway to the Olympic Games and, had no connection whatsoever to the Olympics.

The CAS decision was handed down by a panel of three arbitrators, all with conflicts of interest:

  1. - A Chairman appointed by the appeals division of CAS. The appeals division of CAS was directed by then CAS Vice President Göran Petersson. Petersson was the former President of World Sailing that changed the 49er class to male only.
  2. - A director of the company that World sailing engaged to act as registrar for the kangaroo court being appealed; and
  3. - An IOC member

Paul lodged a corruption complaint to the IOC Ethics Committee and requested whistleblower protection. The complaint was accepted by the IOC but whistleblower protection was not afforded to Paul. The CAS never published the decision to their online database. Paul is yet to hear from the IOC Ethics Commission.

There is no case law available where the gender rules of an IOC sporting federation have been successfully challenged. The closest has been Sagen v VANOC [2009] BCCA 522 where discrimination was found but failed on jurisdictional grounds. Courts have been reluctant to decide in favour of applicants due to the potential for the decision to affect Olympic Games host Nation selection for a bidding Nation.

YV/AS played this card very persistently and always emphasized the Sailing World Cup as an elite Olympic event that is a pathway to the Olympic Games. This is absolutely abhorrent considering they successfully argued the opposite to the CAS.

The CAS decision was submitted as an exhibit to Mercuri by YV/AS as evidence to support the conduct of the disciplinary hearings against Paul.

Why did Judge Mercuri deliberately ignore the decision of the CAS that the event had no connection to the Olympics?

 

Emmet Lazich a full time paid coach for YV/AS was the expert witness for YV/AS. In cross examination when presented with information published by the 49er boat designer Julian Bethwaite that was at odds with his assertions he arrogantly replied:

I’m more of an expert on the subject than he is”.

When presented with information published by the mast manufacturers Southern Spars he replied:

"It’s more for the rookies who have no idea; it is.”

Lazich conceded that the rope loads on the helm were light and that the crew, not the helm, was responsible for balancing the boat with their weight. He also conceded all of the heavy lifting was done by the crew, not the helm.

Despite this, Judge Mercuri unbelievably decided that the positions of helm/steering and crew were the same and not even in separate positions of the boat.

Without an expert witness it not possible to win the case. Stephanie had the best experts you could possibly get. A former World Sailing President, the deputy Chief Medical Officer for the 2012 Olympics and a female 49er sailor that beat expert Emmit Lazich at the World Championships.

YV/AS received the first expert witness statement months before the hearing. Despite this, they waited till halfway through the hearing to object to the format of the affidavits. Stephanie's lawyer requested to correct the affidavits and resubmit them.

Judge Mercuri knew that YV/AS deliberately waited till the last available time to object. She also knew that without an expert witness, Stephanie had no prospect of winning the case.

Judge Mercuri deliberately denied Stephanie the opportunity to resubmit the affidavits.

Stephanie recently sought advice from leading appellate lawyer Herman Borenstein QC. Herman agreed the decision was ridiculous on many grounds but without an expert witness, the risk of losing an appeal would be too high. An appeal can only hear what was submitted to the court.

The law was on Stephanie's side but the forces of pure evil were not.

 


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