|Posted on February 27, 2017 at 1:35 AM||comments (1)|
Have you just separated? Are you thinking of separating? If so, here is a list of useful things to do as soon as you can.
1. Take Important Things with You
If you are going to leave, then take all your important things with you. Don’t bank on being able to get them later. Lawyers have often dealt with separated parties who take perverse delight in not handing over something their former spouse really, really needs or wants. Sometimes a party is not able to get their child’s medication, their own family heirlooms, the childrens’ sporting equipment, photographs, passports, birth certificates, financial documents – the list goes on. The lesson? If you need it. If you want it. Take it. Now.
2. Tell your Kids Together
Agree with your former partner on what to tell your Children and do it together. You are going to have to learn to co-parent some time. Start now. The kids will have questions. It will be best for the children to learn about their parent’s separation from you together, not get different stories from each of you. Don’t confuse them. Don’t make it worse for them. Find a way to do this one thing for them.
3. Get Mail Redirected
If you’re living under the same roof, or you are the one to leave, get your mail redirected. The reasons for this are to prevent unauthorised access of your mail and to ensure that important mail does not get withheld from you. Many a lawyer has had clients say to them, no I’ll be right, he/she won’t do that. Then their former spouse does, and the client is surprised.
Once you’re separated, your former spouse wants to see into all your private stuff. They will open mail, read it, keep it and not care about either when, or if, it eventually gets to you. This often happens even if you don’t think they will do that. Don’t take the chance. Hurt people seem to love hurting the other person too.
4. Change your Passwords
For the same reasons, change all of your passwords. Even if you don’t think your husband/wife/partner knows your password. You’d be surprised how many sneakily do. You don’t want them being able to access your email, your banking etc. Sometimes an upset spouse won’t stop at reading or sticky beaking. The scorned wife of one client once sent an email to everyone in his address book (friends and business colleagues) telling them about the numerous extra marital affairs he had been having, as well as some ‘outing’ him about some nasty habits he would have preferred to keep private.
5. Get a New Bank Account
If you don’t want your spouse to access the wages that get paid into your joint bank account (or a bank account they have access to) then open a new bank account.
6. Protect your Finances
Take steps to protect funds in joint bank accounts and make sure that any credit cards or lines of credit can’t be ‘maxed out’. It is extremely common for a spouse to empty bank accounts or max out credit cards and then refuse to pay the funds back, even if it leaves the other person in the lurch or without any money.
7. Make a New Will
Make a new Will. Separation does not invalidate your old Will, only Divorce does. Making a new Will after you have separated has some complexities to it. Make sure you use a lawyer to do it properly.
8. Update Superannuation Beneficiaries
Contact all of your Superannuation providers and nominate a new beneficiary if you don’t want your spouse to receive your Superannuation and Life Insurance if you pass away.
|Posted on February 6, 2017 at 6:25 PM||comments (0)|
This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show.
Most clients only come to see a lawyer when they are in legal trouble. Unfortunately, by this stage there is often only so much your lawyer can do to help you, and usually the remaining legal options are going to cost a lot of money.
For instance, when you have an important agreement or arrangement with a person, it’s often better to obtain legal advice and have a written agreement. This will prevent disputes about the content of your agreement and make everyone clear on their rights and obligations under the agreement. This in turn significantly reduces the risk of a dispute and you later having to go to court and pay massive legal fees.
Also, if you recieve a letter of demand, you should either pay the demand or see a solicitor immediately. Not doing anything about it normally leaves the other party with little choice other than to commence proceedings, which are going to be expensive for all parties.
In a way, visits to your lawyer can be seen as similar to check-ups with your dentist. Regular check-ups with your dentist will ensure that any cavity or decay is detected early, ensuring that such problems are tackled early and preventing the need for root canal or tooth extraction. Similarly, an appointment to see your lawyer about a major transaction can help ensure that your interests are properly protected and serious legal problems later on are avoided.
Shop around/Don’t go with any inner-city law firm
Different lawyers charge different amounts for the same work. You may be quite surprised at the differences.
The best way to shop around is to look on the internet. That way you don’t feel obligated by having a lawyer see you and spend a while talking with you, or have to pay them for an initial consult when in the end you decide you would prefer another firm. By looking at a firm’s website you can ascertain where they are, what areas they practice in and get a general impression before you email them. When you email them, tell them very briefly what your matter is about in 4-6 sentences and ask them how much their fees will be. You should get a response within two business days if the firm is willing and able to take on your matter.
In terms of fee structure, the best approach is to agree on a fixed fee if that is a practicable option. Ask your solicitor to give you a fixed fee for your matter. That way, you know how much you will have to pay in advance and there are no nasty surprises later on. Also, your solicitors will not have the incentive of spending more time on your matter than necessary so that they can charge you more.
Of course, sometimes it is not possible for a fixed fee to be arranged. A typical example of when a fixed fee is unlikely to be possible is in court proceedings. Whether it’s civil litigation, family proceedings or a criminal case, it is impossible to precisely predict in advance how many court dates, how much preparation and generally how much work your solicitor will have to carry out. In such matters you may have to settle for an hourly rate, but you should still ensure that it’s competitive by getting a few different quotes.
Law firms in the CBD and other expensive areas pay enormous amounts of rent for their office spaces. Naturally, these costs are passed onto you, the consumer. In order to pay their massive overheads, inner-city firms charge very high hourly rates and most put lots of pressure in their ‘fee earners’ to generate as many ‘billable hours’ as possible every day. In such firms, the performance evaluation of their solicitors (or ‘fee earners’) is mostly based on the amount of money they generate for the firm. The focus in such firms is essentially on extracting as much money from you as possible.
Of course, there are times when it may be better to go with an inner-city law firm, such as if your claim is worth millions of dollars, or due to the complexity of your legal matter you require an accredited specialist (although there are accredited specialists in the suburbs as well!). Otherwise, it is generally advisable to see a suburban solicitor who pays far less rent. If your matter requires specialist advice or is going to court, your solicitor can always engage a barrister on your behalf to provide such services which shouldn’t come to too much.
Settle the case
Litigation is essentially a zero-sum game, as there can only be one winner, and the person who wins does so at the expense of another party. In fact, describing litigation as a zero sum game is actually unduly optimistic: both parties normally pay highly expensive legal fees, and only in exceptional cases do successful parties get costs orders which indemnify them for the massive amounts of legal fees they have paid.
In civil litigation, the normal course is that costs are awarded to the successful party on the court scale, which is usually substantially less than what your lawyers charged you. So even if you do win in court, the legal costs you recover will normally be a lot less than the amount that you paid in legal fees. Costs are usually not awarded in family matters in the federal courts or in estate matters.
On the other hand, if you lose you will have to pay your lawyer’s fees, the judgment sum and the other side’s costs. Unless you are quite wealthy, this is a triple whammy you probably can’t afford.
Furthermore, the outcome of litigation is normally uncertain, as it concerns disputes of fact or disputes over the meaning, effect or application of relevant laws. Litigation is also often unpredictable, as there are issues which often come up by surprise, and sometimes the judge just takes a particular view of the case and decides accordingly. You can never be completely sure of a good outcome, even if you have an apparently strong case.
As a result, it is generally advisable to try to settle the case before going to court. If you want to sue somebody, get your lawyer to send a letter of demand first and/or an offer to settle the civil dispute. If you receive a letter of demand, see a lawyer to get advice and then get the lawyer to draft a response. The response should be aimed at preventing the need for court proceedings, either by pointing out why you don’t owe the money demanded or making an offer to settle the dispute for once and for all. Because court proceedings are so expensive, you should try and avoid them whenever possible.
If you are a party to a court proceeding, consider the possibility of settling your case. There are three major advantages to this option:
1) The uncertainty is eliminated: the outcome you have both agreed upon you will almost certainly get, thereby removing the risk of financial disaster if you lose;
2) You can save on legal fees: as the matter will not have to proceed to final hearing; and
3) The matter is over far more quickly: so that you avoid unnecessary stress and can move on with your life.
A negotiated outcome could be a win for you and a win for your opponent, but in order for it to work you would have to put an offer that they may accept. Remember that the other party to the case will only accept if they see the outcome as beneficial for them. You should try and see things from the other party’s point of view and ask yourself what you would accept if you were in their shoes. It would be sensible to offer somewhat less than what you would get if you won in court to take into account the risk and expense of a trial.
Spend less time talking to/ emailing your lawyer
Many clients like to spend lots of time chatting to their lawyer on the phone. Some clients do not realise that lawyers are performing work by discussing your case with you or listening to you, and are perfectly entitled to charge for this.
Other clients like to send numerous long and/or repetitive emails to their lawyers. Of course, your lawyer is also entitled to charge for reading each of these emails.
A lawyer’s most valuable asset is his or her time. Minutes spent by a lawyer talking to you or reading your long emails are minutes that can be spent working on another client’s matter. By taking up a lawyer’s time discussing your case or sending many unnecessary emails, you are using up his or most valuable resource. If you want to save on your legal bills you should limit the time spent chatting with or emailing your lawyer. Wherever possible, make it short and sweet!
If you need to vent, talking to your partner or a friend is a much cheaper option. Remember that your lawyer can only help you with the legal side of your problem.
Do what your solicitors tells you the first time
Many clients fail to do what their solicitor asks them to do the first time. This leads to the solicitor having to chase up the client by writing letters and emails as well as calling the client. Sometimes the solicitor will also recieve correspondence and calls from third parties in relation to the delay occasioned by the client. All of this leads to additional and unnecessary costs being incurred on the client's file.
Don’t change lawyers
Every time you change lawyers, your new lawyers will have to spend time reading the file in order to become familiar with its contents and the issues, and to know what steps need to be taken. Naturally, you will be charged for this time.
As a result, it is generally adviseable to stick with the same lawyers from start to finish.
Don’t change your instructions unnecessarily
Your instructions are what you as a client tell your solicitor to do for you. Your lawyer has to carry out your instructions unless you ask him or her to do something which is illegal or unethical.
Your instructions will sometimes have to change as the case evolves. Changing your instructions can often be desirable, and is sometimes necessary (for example, if an event has made what you are seeking impossible to obtain). However, changing instructions can result in more legal work having to be undertaken, and therefore more fees. As a result, you should carefully consider your options before you give your lawyer instructions and not change those instructions without a very good reason. Changing instructions without a good reason can result in your legal bills being needlessly higher than they would otherwise be.
As this article demonstrates, there are a number of ways that legal consumers can save on legal bills. The important principle to remember is that a lawyer's most valuable resource is his or her time, and the more time you consume the more you will be charged. Essentially, saving your solicitor time saves you money.
|Posted on January 19, 2017 at 7:50 PM||comments (0)|
Witnesses are usually assessed according to their credibility and reliability.
In cases where there are disputes of fact, the performance of the relevant witnesses will be critical, as the case is likely to be determined according to which witnesses are believed and which are not.
This article discusses dome of the do’s and don’ts involved in giving evidence at a hearing.
It is important to define the following terms:
Credibility – this term refers to whether a witness is honest and doing their very best to tell the truth, or whether they are attempting to mislead or deceive the court.
Reliability – this refers to whether the recollection or perception of a witness is accurate.
How to be an impressive witness
In our opinion, a witness should observe the following in order to be seen as a credible and reliable witness:
1. Listen to the questions you are asked. This one may seem obvious, but is often not followed by witnesses. Some witnesses will blurt out the first thing that comes into their head before they have even heard the whole question. Listening to the whole question before you answer will reduce the likelihood of you making the common mistake the subject of the following paragraph.
2. Answer the questions you are asked. This one may also seem obvious, but is surprisingly often not heeded by witnesses. I once had a client who when I would ask a simple yes or no question to, he would go on a 5 minute monologue, at the end of which I would find that my question had not been answered. Needless to say, I was not surprised to hear a barrister say that he was the worst witness he has ever seen. Failing to answer the question can make you seem shifty and evasive, and this will reflect poorly on your credibility. Finally, failing to provide a response which answers the question tends to annoy the judge hearing the case, who may make his or her displeasure known, in which case you will know that things are not going well at all.
3. Ensure that your evidence is accurate. Again, it is surprisingly common for a witness to exaggerate or say things which are not true, even if they may not have intended to mislead. For instance, I once asked a client during a telephone conversation if she had done a particular thing she had been asked to, and she said that she had done ‘everything’. I then asked to confirm whether she had done the thing I had asked her – and she answered no. This client would have been a lousy court witness. Inaccurate or exaggerated answers give the impression that you are not a person who is sufficiently focused or who takes inadequate care with facts, and this affects your reliability as well as your credibility.
4. Keep it short and sweet, especially when you are being cross-examined. A lot of witnesses ramble on, not realising that the more they say the more likely they are to slip up. If you only say one thing in response to a question, you are 100 times less likely to make a mistake than if you say 100 things. This is why a prudent witness will keep their answers concise and to the point when they are cross-examined.
5. Frankly admit things that look bad on you. When a Judge or Magistrate is assessing your credibility, he or she will often pay special attention to those occasions when you are asked to admit something that reflects poorly on you or which may harm your case. A witness who admits such matters at the first opportunity without resistance if they are true is more likely to be believed on other matters compared to a witness who attempts to avoid or even denies such matters when they are later established. Nothing is more harmful to a witness’ credibility than when they deny something which the cross-examiner later establishes as true.
6. Don’t argue with the cross-examiner. Your job as a witness is to give evidence by answering the questions posed to you, not to argue against anyone. An argumentative witness is not a witness who gives the impression that they are always telling the gospel truth. Rather, they are obviously self-interested and probably place that above their duty to tell the truth.
7. Don’t be overly emotional. There are cases when showing emotion will make you more plausible and may also elicit judicial sympathy. For instance, if you are the victim of a serious crime, shedding some tears in the witness box probably won’t hurt you. On the other hand, witnesses who show anger or becoming irritable rarely come across well. Furthermore, they are more likely to make a mistake or becomes non-sensical if they are overcome by emotion. Remember that you duty is to tell the truth in relation to every question, not to get things off your chest or bear your soul. A sound witness is usually calm, and gives considered answers to the questions.
8. Avoid giving hearsay or opinions. Hearsay involves proving something to be true by means of a statement said outside of court. Generally speaking, hearsay and opinion evidence are both inadmissible (there are exceptions). A witness who keeps introducing inadmissible hearsay evidence is going to irritate the court, and may also give the impression of being shifty and evasive. Opinion evidence from a lay witness will not only be disallowed, but will also affect the impartiality of the witness. Witnesses who are unable to distinguish between facts and opinions are inevitably seen as unreliable because everything they see is obviously tinted by their own preconceived views.
Many a judge, solicitor or barrister has observed witnesses who lack self-awareness in relation to the way they are perceived by others. If they are not shell shocked during cross examination, they are when judgment is handed down and they discover what an unimpressive witness they were in the eyes of the judge or Magistrate.
In some ways, being a persuasive witness in court is similar to being a persuasive witness outside court. A calm witness who listens carefully and responds directly and conscientiously to the questions they are asked is inherently more believable than an angry, argumentative and occasionally evasive witness who is not careful to ensure their evidence is accurate.
In court, the assessment of a witnesses’ credibility and reliability is tested in cross examination where the qualities of the witness described herein come into focus. It is therefore very important that the witness is able to withstand the rigours of cross examination by observing the above common sense rules.
Remember that your role is merely to say what you saw and answer every question as accurately as you can.
|Posted on November 28, 2016 at 6:25 AM||comments (0)|
On 14 February 2016, nine Qantas crew members were taken to a room and searched. One of the crew members named David Dawson was found to have 1 can and 1 bottle of beer in his jacket, a 50ml bottle of gin in his bag and two 50ml bottles of vodka in his trouser pockets.
In his response to the allegation that he had attempted to steal the alcoholic beverages, Dawson initially denied the allegation claiming that they were inadvertently pocketed by him as a result of serving passengers.
Fair Work Commission’s decision
Although Deputy President Lawrence found that there was a valid reason for the dismissal because the stealing of the alcohol was contrary to Qantas policy, the dismissal of Dawson was held to be unfair because of the following personal circumstances and circumstances of the misconduct:
His 28 years of unblemished service for Qantas as a long-haul flight attendant.
The small value of the items stolen.
The Applicant’s age of 50 meant it would be difficult to get another job, certainly as a flight attendant.
Although he gave an incorrect explanation, he did correct it.
He had a number of medical and family issues prior to the incident.
Given these factors, Deputy President Lawrence held that a penalty other than dismissal would have been appropriate.
Assessment of compensation
Another controversial aspect of the decision was the way in which Deputy President Lawrence arrived at awarding Dawson the maximum amount of compensation allowed under section 392(5) of the Fair Work Act 2009 (Cth):
The Applicant earned $67,462 per annum. I am satisfied that he would have remained a flight attendant for the rest of his working life which could have been 15 or so years. He could have earned $1,011,930…
The Applicant has not earned income since the dismissal, but he has not sought employment…
It is appropriate to adjust the compensation to take account of the fact that I have found that there is a valid reason for the dismissal. The compensation will be reduced to $500,000 on this ground…
I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal..
The high income threshold component is $69,450…
The compensation needs to be reduced to the salary cap… Accordingly, I will order the Respondent to pay to the Applicant an amount of $33,731 which is 26 weeks of the Applicant’s earnings.
As far as we are aware, there is no line of authority which says that compensation in unfair dismissal cases should be assessed at the full salary of the dismissed employee until retirement, subject to the statutory limit imposed by section 392(5) of the Fair Work Act if he is deemed to be unlikely to find employment again.
Furthermore, such a method of calculating compensation is highly dubious, for a number of reasons.
Firstly, there is nothing in the Fair Work Act which states that FWC must fully compensate an unfairly dismissed employee for his entire anticipated or possible future loss, subject to the cap under section 392(5) of the Act.
Secondly, even at common law, which does attempt to fully compensate a person for their losses, discounts are made for the possibility of a plaintiff finding work afterwards, as well as for vicissitudes. Deputy President Lawrence made no such discounts.
Thirdly, the notion that an employee who has been dismissed after stealing and then lying to his employer would somehow deserve $500,000 is manifestly ridiculous.
Finally, although Deputy President Lawrence held that “It is appropriate to adjust the compensation to take account of the fact that I have found that there is a valid reason for the dismissal”, because the discount Deputy President Lawrence imposed was applied to Dawson’s full salary until retirement before applying the cap under section 392(5) of the Act, the result is that the same amount of compensation was awarded, notwithstanding the employee’s grave misconduct.
This case highlights the fact that FWC draws a distinction between there being a valid reason to dismiss an employee and their dismissal being fair in the eyes of the FWC member who hears the case. Furthermore, this case shows that almost no misconduct by an employee is guaranteed to ensure that they will be found to have been fairly dismissed by FWC. Stealing from an employer amounts to serious misconduct: not only is it a criminal offence against the employer, but it also results in a breakdown of trust between the employer and the employee.
Deputy President Lawrence’s decision almost condones employees stealing from their employers. Qantas employees aware of this case will probably rightly conclude that even if they are dismissed for stealing there is a good chance they will subsequently be awarded generous compensation by the FWC if they apply for an unfair dismissal remedy.
Employers considering dismissing an employee need to be aware of the pro-employee bias in the FWC, which has resulted from the vast majority of FWC Members being former trade union officials who have never run a business in their lives. In this case, Deputy President Lawrence was a former Secretary of the Australian Council for Trade Unions. Even when an employer has a valid reason for dismissal arising from serious misconduct and then follows the procedural requirements of a fair dismissal (as Qantas did in this case), there is every chance that FWC will nevertheless still find that the dismissal was unfair.
|Posted on November 23, 2016 at 6:10 PM||comments (0)|
Labor Member for the Queensland seat of Griffith Terri Butler is being sued by one of the university students involved in the infamous case of the Facebook posts which resulted in legal action by a former administrative officer of the University of Technology (QUT) named Cindy Prior.
On 28 May 2013, some students were kicked out of a computer lab reserved for Aboriginal students by Ms Prior.
QUT student Alex Wood posted the following comment on Facebook:
Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?
Another student named Jackson Powell joined in with this comment:
I wonder where the white supremacist computer lab is
A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.
On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim arising from the above posts against the abovenamed students brought by Ms Prior under section 18C of the Racial Discrimination Act 1975 (Cth).
I know how the law works. I know how the commission works...
And I notice that when people talk about those QUT students, they never mention the fact that one of them was alleged to have used the ‘n’ word ... in one of those Facebook posts
This is the situation. And we never found out because it was not determined. I’m saying this is what the allegations were and the matters were not determined
When told that Mr Thwaites had repeatedly denied it was his Facebook post, Ms Butler replied: “He would say that, wouldn’t he?”.
When The Australian's foreign affairs journalist Greg Sheridan pointed out that Butler was smearing the students, Butler replied with "I'm not smearing anyone".
Contrary to Butler's claim, the issue of whether Calum Thwaites was the author of a Facebook post that used the word 'nigger' has been determined in his favour, which is why the claim against him had been dismissed.
And contrary to Butler's claim that nobody talking about the case mentions the post containing the 'n word', this has been mentioned on a number of occasions by The Australian.
The Australian reports this morning that a Claim and Statement of Claim seeking damages in defamation against Ms Butler has been filed in the Brisbane Magistrates Court on behalf of Calum Thwaites alleging that Butler implied on Q&A that he was a racist bigot and perjurer who had deceived the Federal Circuit Court.
In order to succeed in a defamation action, a plaintiff must prove the following three elements:
1. That one or more defamatory imputations have been made.
2. That the defamatory imputations were published by the defendant.
3. That the plaintiff has been identified in relation to the defamatory imputations.
Once a plaintiff has established these three elements, the defendant must in order to succesfully defend the claim establish one of the available defences under the Defamation Act 2005, including the defences of substantial truth, fair comment, absolute privilege and qualified privilege.
This case demonstrates the importance of being informed when debating social issues in public. In this case, Ms Butler's ill informed rant allegedly defamed one of the students involved in the Federal Circuit Court proceeding. It is important that participants in public debates are careful with the facts so that they avoid damaging the reputations of others and exposing themselves to liability in defamation.
This case is also an excellent example of how advocacy for a cause (in this case retention of section 18C of the Racial Discrimination Act) can be badly damaged by getting facts wrong.
It will be interesting to see whether Ms Butler makes an apology and pays damages and/or costs, or whether the matter proceeds to trial before a Brisbane Magistrate. If we were acting for Ms Butler we would advise her to settle the claim early in order to avoid the risk of an expensive and potentially political career ending loss in a defamation trial.
|Posted on November 7, 2016 at 9:30 PM||comments (0)|
On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim brought by Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth) as a result of posts published on Facebook by students at the Queensland University of Technology that complained of being kicked out of an ‘Indigenous only’ computer lab. This ends a 3 year long legal saga and ordeal for the students concerned.
On 28 May 2013, some students were kicked out of a computer lab reserved for Aboriginal students.
QUT student Alex Wood posted the following comment on Facebook:
Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?
Another student named Jackson Powell joined in with this comment:
I wonder where the white supremacist computer lab is
A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.
Section 18C(1) of the Racial Discrimination Act 1975 (Cth) provides as follows:
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
People sued under section 18C typically seek to plead the defence under section 18D:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
A famous case of when section 18C resulted in a successful suit was in the case of Eatock v Bolt  FCA 1103 (28 September 2011). In that case a conservative columnist named Andrew Bolt was found to have contravened s18C by writing mocking columns concerning a handful of individuals of part Aboriginal descent who identified as Indigenous. Bolt had suggested that these individuals had chosen to identify as Aboriginal in order to qualify for prizes and obtain career clout.
Judge Jarrett’s decision
Judge Jarrett found that the abovementioned comments by Wood and Powell were not reasonably likely to offend, insult or humiliate. Wood saying that he had been kicked out of a computer lab for not being Indigenous was a statement of fact. Powell’s comment asking about a computer lab for white supremacists was a poor attempt at humour and nothing more. Judge Jarrett accepted that Thwaites was not responsible for the Facebook post which contained the word ‘nigger’.
For these reasons the claim was dismissed.
This case arose from comments made on social media by students expressing understandable displeasure at having been thrown out of a computer room on the basis of their race. It is astounding that the Facebook comments in question resulted in a three year legal journey, including conciliation at the Human Rights Commission and proceedings in the Federal Circuit Court of Australia. Far more offensive things are said and done every day which do not result in any legal processes, and few would suggest that they should.
However, it is wrong to suggest that Ms Prior’s claim was vexatious. Although Judge Jarrett found in favour of the students, Prior still did have an arguable case. The comments in question could arguably have been likely to offend, and did in fact obviously upset Prior. For this reason, the case highlights and demonstrates the need to repeal or amend section 18C in order to prevent similar claims being brought in future.
The suggestion that the law worked well and justly by dismissing the claim ignores the fact that the students have endured enormous stress, inconvenience and reputational damage as a result of this case. They would have also incurred massive legal bills if Tony Morris QC had not agreed to act pro bono. The students must be considered victims of the case and a law which allows such a case to be brought to court at the very least needs to be reformed for this reason alone.
Identity politics and political correctness
An interesting and yet unfortunate aspect of the case is the fact that Ms Prior’s emotional reaction to the posts was a grossly disproportionate response. Perhaps this is not surprising given the advent of identity politics and political correctness in recent decades.
Identity politics, a child of cultural Maxism, is underpinned by a worldview which divides people into groups of oppressors and the oppressed, rather than as individuals who each have their own unique experiences. Justice involves granting special rights to members of oppressed groups in order to compensate for past wrongs committed against members of their group. According to this viewpoint, Indigenous disadvantage today is entirely the direct result of historical wrongs which have been committed against many Indigenous persons in the past, and to suggest otherwise is to be guilty of racism. Perhaps this is the real reason why Bill Leak’s controversial cartoon about broken homes in remote Indigenous communities so upset the politically correct. Principles of personal responsibility are eschewed because any wrongs committed by the oppressed are attributed to oppressors, to the long term detriment of such individuals.
Political correctness is the ideological sibling of identity politics. Political correctness holds that we must not say or do things which might upset members of oppressed groups. It infantalises by treating members of certain groups as particularly sensitive beings in need of protection from hurtful comments, and provides moral validation and encouragement to those who take offence, in doing so promoting feelings of grievance. Section 18C itself is the legal promulgation of political correctness in Australia. One politically correct former academic has even described attempts to reform section 18C as being “not about free speech, but the freedom of white men to hand out racial abuse”.
Cindy Prior had clearly benefited from identity politics. We know that her Aboriginality obviously helped her obtain a role as an administrative officer in QUT’s Oodgeroo Unit on what may well be more favourable pay and conditions than a position she could have obtained in the private sector. She would have felt that asking non-Indigenous students to leave a computer lab reserved for Indigenous students was only just and fair. The result of identity politics and political correctness was a person of unusual psychological fragility.
The psychological report of Dr Simone Shaw revealed that Prior unlikely to attribute personal responsibility to events that occur in her life, as well as the following:
Ms Prior presents with strong convictions in relation to fairness and equity and her sense of injustice, not only in relation to the most recent workplace incident, but this was also evident through her recollections of her involvement in four previous workplace incidents and two historical personal incidents that subsequently caused her significant distress and she reportedly instigated legal involvement on several occasions to resolve those issues. Her core belief of fairness and equity justice has resulted in a sense of injustice in relation to the incident on 28 May, 2013.
The evidence before the Federal Circuit Court suggested that Cindy Prior’s pre-existing psychological frailties, which made her fear a KKK presence at her university as a result of the abovementioned Facebook posts, were the products of the infantilisation of Indigenous peoples caused by identity politics and political correctness. And having been humiliated in the courts and facing a substantial award of costs against her, she is now for a variety of reasons a victim of identity politics and political correctness.
Those supporters of section 18C who are so concerned with the psychological wellbeing of Indigenous individuals should bear in mind the unintended consequences of identity politics and political correctness that underpinned their support for section 18C. As well as promoting political divides and restricting fundamental rights such as free speech, identity politics and political correctness ultimately harm the very people they are intended to assist.
|Posted on November 4, 2016 at 8:20 AM||comments (0)|
Amirah Droudis, the girlfriend of Lindt siege gunman Man Haron Monis and formerly named Anastasia Droudis, was yesterday convicted (ie found guilty) of the murder of the ex-wife of Monis.
The written judgment of Justice Johnson, delivered yesterday after a judge-only trial (due to adverse pre-trial media publicity), is particularly long and detailed. It goes into significant aspects of Monis' life story because Droudis was intimately involved in them.
The prosecution and the defence both agreed that Monis had masterminded the murder, and that the person who committed the murder was a female, due to compelling evidence of same. There was also no dispute that the person who had killed Monis' ex-wife had intended to do so. The central question for determination was whether Droudis was the woman who committed the murder at the request of Monis.
As Justice Johnson acknowledged, the case against Droudis was circumstantial. Consequently, the prosecution needed to not only establish that the inference that Droudis carried out the murder was reasonable to draw from the evidence, but also that it was also the only reasonable inference that could be drawn.
In short, the evidence that was relied on for convicting Droudis included the following:
1) A witness saw part of the attack through a peephole then (very briefly) exchanged words with the assailant, who yelled at him, and although he failed to identify Droudis using photographs supplied by police (identifying another women of similar appearance who was not involved in the murder), his accurate description of the complexion and build of Droudis was held to support the prosecution case.
2) The overwhelming evidence that Monis had organised the murder, including his attempts to organise bikies to kill his ex-wife, him taking out contents insurance weeks before the murder (which showed that he knew there was significant risk that some of his property might be damaged by the fire lit immediately after the murder that was to be carried out), the fact that the murder occurred in his Werrington apartment complex that was locked, and his 'incredible lengths to establish an alibi for himself' by filming himself at the Penrith swimming pool and staging a car accident on the afternoon of the murder.
3) Droudis' established tendency to carry out Monis' wishes, including soliciting the murder of the President-elect of the United States of America, making false complaints to the police and actively assisting Monis in contacting and attempting to contact the families of Australian soldiers killed in the line of duty.
4) The ongoing disputes Monis was having with his ex-wife concerning custody of their children and related issues.
5) The judge finding that the murder "had all the hallmarks of a frenzied attack by an angry amateur killer".
6) The evidence "that Monis and the Accused were consistently acting between August 2012 and 7 April 2013 in a manner which was intended to develop a type of family unit, where Monis’ sons referred to the Accused as their mother and with the Accused’s daughter being involved constantly in the family activities".
7) The evidence that Droudis was the only woman who was a significant part of Monis' life at the time of the murder, undermining the suggestion that some other female assailant known to Monis may have carried out the murder.
8 ) Video footage taken the day after the murder at Droudis' Croydon unit which showed Droudis acting as the mother of Monis' children, and it was obvious that the children had not been informed of their mother's death.
9) The unaccounted whereabouts and activities of Droudis between 2pm and 7pm on the afternoon of the murder.
10) Recorded conversations that Droudis had with Monis following the murder which suggested that they were constructing false alibis and trying to divert attention away from themselves by suggesting to police that Monis' ex-wife's father or male friend may have been responsible for her murder.
The only part of the judgment that may be controversial was the finding that the identification evidence assisted the prosecution, even though the chief identification witness identified the wrong person when presented with photographs of various women, and his certainty that he had identified the correct woman. Expect this to be a ground of appeal when an appeal against conviction is inevitably filed.
This is one of the last chapters of the trail of destruction caused by Monis, an Iranian refugee who came to Australia in 1996 and committed numerous unlawful and indecent acts to the nation that kindly offered him protection from the Iranian police, who wanted to prosecute him for fraud.
Finally, a question from the judgment arises from the decision to grant Monis bail in relation to the murder of his ex-wife. If Monis had been remanded in custody, Tori Johnson and Katrina Dawson would both still be alive today, and many others would have been saved the trauma and anguish caused by the Lindt café siege. Given the case against Monis for organising the murder of his ex-wife was so strong, he was bound to be sentenced to a long period of imprisonment and he had an antisocial personality disorder, it should have been apparent before the siege that the interests of the community demanded that Monis be denied bail. That this was not the case is an indictment on the NSW justice system for failing to protect the community at large.
|Posted on August 22, 2016 at 7:50 PM||comments (0)|
There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.
When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.
However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.
On 16 October 2013 Milton solicitor Ros Janes was found guilty of professional misconduct for misleading the District Court. The District Court proceeding was a body corporate matter, and Janes instructed a barrister named Shannon Moody before terminating her retainer. Janes then filed an affidavit and appeared before the District Court, blaming Moody for the failure to comply with the Court’s directions to file an Outline of Argument. The Court referred the matter to the Queensland Bar Association so that Moody could respond, leading to the Legal Services Commissioner commencing disciplinary proceedings against Ms Janes.
The QCAT hearing largely turned on the communications between Ms Janes and Ms Moody in the lead up to Janes’ appearance in the District Court, and involved extensive cross-examination of both women, with the tribunal finding Moody to be the more impressive witness. Other factors that lead to the court preferring the evidence of Moody were that:
– Janes’ typed notes of conversations with Moody in many respects did not accurately reflect an allegedly contemporaneous handwritten note she made of a conversation with Moody
– Janes’ admission that Moody had raised an extension of time with her on four occasions
– Janes’ claim that at the time she did not know the submissions prepared by Moody were not an Outline of Argument as directed by the Court
– an untruth in her affidavit concerning when Moody advised her the Outline could be prepared by
– Janes’ denial that she had requested Moody to withhold preparation of the outline when she had requested an extension from the Registry for filing of the Outline on the ground that the parties could resolve the proceeding
– her claim that she had asked Moody to prepare the Outline urgently but then had not contacted Moody for another two weeks
– Janes effectively conceding that paragraphs 28 and 29 of her affidavit were incorrect.
Janes was publicly reprimanded and ordered to pay a fine of $10,000 and costs fixed at $2,000.
Meanwhile, Gold Coast solicitor Karen King was found guilty of professional misconduct in November 2013 after the Tribunal found that she breached an undertaking she made in 2006 to a barrister to pay his outstanding fees in full within an agreed time. The barrister was only ever paid $5,000 of the approximately $29,000 owed to him. Ms King denied the undertaking was given with her authority, however the Tribunal preferred the evidence of the solicitor in her employ who emailed the undertaking to the barrister.
Ms King was also found guilty of other charges, including withdrawing trust monies without authorisation, failing to provide an itemised bill and failing to comply with a written notice from the Commissioner. However, the Tribunal accepted the Commissioner’s submission that the failure to honour the undertaking to the barrister was the most serious of the charges.
The Tribunal ordered that Ms King should be struck off as she was not a proper person to remain on the roll. A significant factor which contributed to this conclusion was her lack of insight into her offending behaviour, as demonstrated by her various attempts to mislead the Commissioner and the Queensland Law Society, including the fabrication of evidence to support her position. In this way, the Karen King case bears a disturbing similarity to the case of Paul Anthony Dempsey, who in 2009 was struck off, partly for knowingly giving false evidence to the then Legal Practice Tribunal in an attempt to defend himself against the charges he faced.
Both of these recent cases show that solicitors should act honestly and ethically at all times in their professional dealings with barristers. In particular, solicitors should not blame barristers they instruct when things go wrong without good cause. And of course, when solicitors provide undertakings to barristers they must honour them.
Another important aspect to these cases is that when a lawyer is investigated, he or she would be best advised to be honest and frank in responding to any allegation of wrongdoing, including making full admissions where appropriate rather than attempting to conceal such lapses. Legal practitioners who admit their wrongdoing and express remorse are treated more leniently than lawyers who compound their predicament with implausible explanations for the evidence against them. The way Ros Janes and Karen King both responded to investigations and proceedings against them contributed to the substantial penalties imposed on them.
Perhaps solicitors would be well served to read Dr Tom Altobelli’s Working With Barristers publication.
|Posted on August 16, 2016 at 11:40 PM||comments (0)|
Most complaints about lawyers concern how high their legal fees are. The professional fees charged by lawyers are notorious. When many clients earn an average of $20-40 per hour, it can seem unfair that your lawyers charge you hundreds of dollars per hour. However, as this article will demonstrate, there are reasons why legal fees are so high.
The main reason legal fees are so high is because it costs a lot of money to lawfully run and operate a law firm. Law firms incur all of the costs normally associated with operating an office (rent, wages, photocopy leases, furniture, power, stationary, paper, ink, tax etc). Inner city law firms pay massive amounts of rent and of course this cost gets passed onto you. Additionally, there are extra costs that law firms have to pay, mainly because the legal profession is so highly regulated.
In addition to normal business costs, lawyers also incur the following costs:
Professional indemnity insurance - this is liability insurance that all law practices are required to have. The costs of this depends on the size of the practice, but it is invariably expensive. This insurance is ultimately to the clients' benefit, as it ensures that in cases where lawyers make mistakes, clients can be compensated for this.
Practicing certificate fees - lawyers also must pay thousands of dollars every year to the Law Society in order to renew their practicing certificates. The cost of a practicing certificate depends on the type of certificate which is granted. Included in the cost of a practicing certificate is a fidelity fund contribution fee of several hundred dollars in order to reimburse clients who are defrauded of money by a small number of unscrupulous members of the profession.
Continuing Professional Development - every year, lawyers are required to complete 10 points CPD as part of their continuing legal education. This typically costs thousands of dollars per practitioner as the seminars/courses that must be attended or undertaken are rather dear. Lawyers can be severely disciplined for not complying with the above requirements. Because a solicitor's time is worth a lot of money, the monies spent on CPD are arguably small compared to the time expended on CPD which could be used on chargeable activities.
Trust account expenses - most firms hold at least one trust account, which is a bank account where monies which do not belong to the firm are deposited. Examples of trust monies include funds used for paying house deposits or outlays, and monies paid upfront by clients or third party payers on account of the firm's professional fees. Firms have to pay for annual external audits of their trust accounts, which usually cost a minimum of $1,500. Firms also have to deposit 2/3 of the lowest balance held in their general trust account of the previous year into a separate account. In addition, firms can be audited by the Queensland Law Society, with the costs of such audit being passed onto them. And of course, banks impose monthly account keeping and other fees on solicitors' trust accounts. Finally, the costs of keeping and maintaining records, including trust accounting software and the time spent by members of the firm also add up.
As a result, the financial costs of practicing law are enormous. There are however other reasons why legal fees are high.
Being a lawyer is one of the most demanding occupations. Lawyers have to negotiate competing demands placed on them by their clients, the courts, their employers, disciplinary bodies and their families. Some clients are difficult or have unrealistic expectations, and this ensures that they walk away unhappy with their lawyer, even when their lawyer has done an OK job.
The law is a competitive, adversarial and aggressive environment. Lawyers typically are required to work long hours, including sometimes on weekends. The consequences of mistakes and failures can be severe, including embarrassment, loss of reputation, being sued and even being disciplined.
As a result of these pressures, lawyers are one of the occupations whose members most prone to suffering depression.
For these reasons it is unsurprising that lawyers expect to be adequately compensated for the work they do.
Becoming a lawyer
The process of becoming a lawyer is a long and expensive one. The reality is that lawyers become qualified and eligible for practice at enormous personal and financial cost.
Lawyers have typically gone to university for many years in order to obtain a law degree and have then undertaken a diploma in legal practice in order to become a solicitor, or undergone training and mentoring to become a barrister. Before being able to practice law, they must be admitted to the legal profession. This is an expensive and time-consuming process which involves paying a large fee to the Legal Admissions Board, and filing an application and affidavit in the Supreme Court.
Even when they are admitted to the profession and commence legal practice, it takes many more years before a lawyer becomes sufficiently experienced and knowledgeable to practice without any supervision.
Put simply, lawyers are so expensive because the financial and other costs of practicing law are enormous. Many of these costs are due to the onerous regulation of the profession. The costs of legal practice inevitably must be passed onto the legal consumer, ie the client.
The good news is that clients can minimise their legal fees, as this article explains.
|Posted on August 2, 2016 at 6:15 AM||comments (1)|
The laws of defamation apply to social media as much as they apply anywhere else:
A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial.
Former Orange High School student Andrew Farley, 20, made “false allegations” about music teacher Christine Mickle on Twitter and Facebook in 2012, a year after he had left school.
Mr Farley, who had never been taught by Ms Mickle, seemed to bear a grudge against the 58-year-old based on a belief that she had something to do with his father, also a teacher, leaving the school, District Court Judge Michael Elkaim said in his ruling.
“There is absolutely no evidence to substantiate that belief,” Judge Elkaim said. “The effect of the publication on the plaintiff was devastating.’’
Anyone who frequents Twitter (or other social media) on a regular basis would know that false and defamatory assertions are often made about people. In some ways it's a surprise that it's taken this long for such a case to result in an award of damages in Australia.
Another twitter defamation case that went to court is that of Liberal pollsters Mark Textor and Lyndon Crosby against former Labor MP Mike Kelly for a tweet Kelly published about push polling.
When people go on social media to rant, they would be well advised to be careful that they do not open themselves to liability for defamation. A right to rant is not the same as a right to defame.