A Barrister's Blog

The lighter side of law


The Other Side


Posted on Sep 17, 2019

It all started with the following innocuous facts….

It was Mardi Gras night (2 March) 2013 at around 11:30pm. The parade had finished, the floats had long passed. Apart from a street sweeper and a garbage truck there were no other vehicles on Oxford Street. However, the pedestrian barricades were still in place and there were still partygoers walking on the sidewalk and on the side of the road behind a number of uniformed police.

It was at this point that Mr Hutchinson, his partner, his sister and another friend decided to cross Oxford Street at the intersection with Crown Street. What happened next?  Well, Leeming JA says that: “He came into contact with police when attempting to do so. What precisely occurred in that three minute period was the subject of conflicting testimonial and CCTV evidence, and much of the substance of this appeal challenged the findings made at trial. Mr Hutchinson was arrested and charged with assaulting an officer in the execution of duty, contrary to Crimes Act 1900 (NSW), s 58. He was served with a Court Attendance Notice at 12.05am, and released”.

The criminal charges were dismissed by a Magistrate in November 2013 after a hearing which “occupied part or all of 4 days“.

Mr Hutchinson clearly reflected on why he didn’t listen when the police told him he couldn’t cross over the next 3 years. He commenced civil proceedings against the State of NSW on the last day of the limitation period in March 2016. He alleged that he had been: (a) battered by the police who prevented him crossing the street; (b) further assaulted because the handcuffs applied to him were too tight, amounting to an unreasonable use of force; and (c) falsely imprisoned for 35 minutes until he was released. Just for good measure he later claimed he was a victim of a malicious prosecution.

He was unsuccessful in his claims after an 8 day hearing in the District Court. He also didn’t fare any better in the Court of Appeal and his application for special leave was denied. Apart from being a lesson in how to ruin a night out and how to rack up astounding costs (including those of the State), the C of A judgment (Hutchinson v NSW [2019] NSWCA 91) is quite interesting if you want to know about police powers to control traffic and pedestrians. I now look differently at the uniformed officers who stand on the tram tracks (behind the orange flag “barrier”) outside Wynyard Station in the morning.

Creative commons acknowledgment for the photograph.

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Coffee Spoons


Posted on Aug 15, 2019

….

For I have known them all already, known them all:
Have known the evenings, mornings, afternoons,
I have measured out my life with coffee spoons;
I know the voices dying with a dying fall
Beneath the music from a farther room.
               So how should I presume?

I know you all recognise that as being from T S Eliot’s “The Love Song of J. Alfred Prufrock” and are probably wondering why I am blogging about it?

Well, I recently had cause to read Lohar v Dibu (1975) 1 BPR 97,014 (about notices to complete) which is authority for the proposition that once time is essential, it’s not necessarily the case that nothing less than strict performance is acceptable. Alternatively, there is Glass JA’s more eloquent formulation (which made it into the headnote & sparked some literary detective work): “There is no universal rule that conveyancing performance is to be ‘measured out by coffee spoons‘”.

Creative commons acknowledgment for the photograph.

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Paintball


Posted on Jul 18, 2019

I recently had cause to look at the Crimes Act 1900 (NSW) (not a common occurrence for me). I noticed that the consolidation (pre 1 July 2019) didn’t include amendments caused by the Modern Slavery Act and the Paintball Act. Now, the Modern Slavery Act I had heard of and it appears to be the subject of the month for newsletters and CLE presentations, but what was this Paintball Act all about? 

I had my suspicions that the legislation was a “godzilla v bambi” type reaction to someone’s paintball accident. I was a bit surprised to find out it was quite the opposite. The Minister for Innovation and Better Regulation made this clear in his second reading speech:

“The Paintball Bill 2018 appropriately reclassifies paintball markers by removing their classification as “prohibited firearms”, which currently sees them categorised and controlled in the same way as lethal weapons such as cannons and machine-guns [i.e they previously fell under the Firearms Act 1996] . Paintball markers are non-penetrative, non-lethal weapons used in low-risk recreational activities. This reclassification of paintball markers under the Paintball Bill 2018 is appropriate and proportionate to the risks they pose. However, this bill prescribes rigorous safety standards …” etc etc and reduces the minimum age of participants from 16 to 12 (although everyone under 18 needs parental consent)

By now, I was thinking “who lobbied for this?” The AUPBA clearly has more clout than I thought. 

Finally, just in case you’re wondering what a a “paintball marker” is….it is (section 4) “…. a sporting device for use in the sport known as paintball that can propel, or is designed to propel, a paintball by means of any gas or mixture of gases, including air (but not including a gas or mixture of gases generated by an explosive) and is operated or designed for operation by means of a trigger or similar device, but does not include….”

Creative commons acknowledgement for the photograph.

 

 

 

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Plurality


Posted on Jun 12, 2019

Earlier this year, I presented a paper about settlement documentation. One of the other speakers that afternoon, raised an issue about the use and meaning of the word “plurality”. My initial thought was: “Is it just me, or am I hearing this word a lot more?”. Just to check, I decided to research Australian superior court judgments over the last 20 years using Jade.io with the following results:

 

From To Cases in
database
Hits on the word
“plurality”
June 1999 June 2009 144,264 355
June 2009 June 2019 286,582 6768

Okay, apparently it’s not just me…. but what does plurality mean?

Interestingly, a quick check of some legal dictionaries didn’t yield any results, so I resorted to Google.

The  University of Melbourne’s “Opinions on High” blog gives the following explanation: “A joint judgment is a judgment that is co-authored by two or more judges. Where a majority of Justices issues a joint judgment, that forms the majority judgment of the Court. A majority may still form among several judgments, which is sometimes referred to as a plurality (although that term is not often used in Australia [really?], and its precise meaning is not settled).” 

I didn’t find that explanation very fulfilling. The next article I looked at was in the Duke Law Journal which explained it (in the context of decisions of the US Supreme Court) in the following terms : “A majority of the Court’s members agree on the result, i.e., which party prevails-plaintiff or defendant, petitioner or respondent-but there is no majority agreement on the reason for that result. The Justices write several concurring opinions, explaining their differing views. If one of these opinions receives more votes than the others, it is designated the plurality opinion.”

So, there you go, the next time you’re asked to use “plurality” in sentence you can go straight to the top of the class.

Creative commons acknowledgment for the photograph.

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Uniform Fetish


Posted on May 14, 2019

Let me think, why did the police prosecutor get sacked?

Was it because:

  • he had a mate who was accused of using a government lab (at ANSTO) to make ice (Breaking Bad style)?; or

  • he helped his mate out by reviewing a folder of documents that the mate obtained under freedom of information and gave him some advice about the investigation and whether there was sufficient information to charge?; or

  • his police-issued belt, leather jacket, hat, shirt, pants, leather gloves and handcuffs (which are prohibited weapon for everyone except the police) were found when a search warrant was executed at the mate’s place?; or

  • he lied (or more formally he was “untruthful, or at the very least, less than fully frank”) to his superiors when he was confronted about these issues and his “disclosable” relationship with his mate?; or

  • he used the handcuffs on this mate otherwise than in the course of duties?; or

  • he knew his mate had a “uniform fetish” and knew it was likely the mate would wear the uniform in some form of sexual encounter with another person; or

  • his conduct was (allegedly) contrary to the: Police Act; Police Regulation 2008 (NSW); Weapons Prohibition Act 1998 (NSW); Weapons Prohibition Regulation 2009 (NSW); Firearms Act 1996 (NSW); NSW Police Force Code of Conduct and Ethics; NSW Police Force Handbook; Procedures for Managing Conflicts of Interest Policy; Declarable Associations Policy etc etc

For the complete saga you’ll have to look at his unsuccessful bid for reinstatement in the Industrial Commission.

Creative commons acknowledgment for the photograph.

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Endangering the public


Posted on Apr 11, 2019

Hot on the heels of last month’s post about the gumtree lawyer, I came across the story of (former) Gold Coast “law firm”, Stenton and Moore. Up until around the middle of March 2019, their website (www.mygclawyer.com.au) proclaimed:

Stenton and Moore Solicitors are your local Gold Coast Solicitors….we want to become your trusted Gold Coast Lawyers…..We have experience in a diverse range of areas practising exclusively in the areas of conveyancing, family law, wills and estate planning, commercial conveyancing and leasing, civil litigation, debt recovery and traffic related matters. Stenton Moore should be your first stop…” etc etc.

Unfortunately, around that time, the QLD Law Society discovered that Stenton and Moore’s executive director, Nerise Moore: “…is not, and has never been, licensed to practice law, ….and thus represented a ‘great risk to the reputation of Queensland solicitors and to the clients that had engaged this firm’.”

The QLS obtained an injunction to stop “the firm” from trading. If you try to access their website now you will get a “404 not found” message. However, when I viewed the site in the time shortly after the injunction, it was displaying (complete with the firm logo):

At least they had a sense of humour on the way out.

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