A Barrister's Blog

The lighter side of law


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.

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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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Gumtree Lawyer


Posted on Mar 11, 2019

In 2015 a WA man ran the following advertisement in Gumtree:

No Lawyer No Problem

Represent yourself in court

Do you really need a lawyer? Can you afford a lawyer? Representing yourself maybe ideal for you. If you can talk and think you are half way there. Yes, you may lose and be liable for costs but so can a Lawyer and you’d still be liable for costs.

I can help you prepare to represent yourself in Court and with filling out Court applications and other Court documents and the drafting of affidavits.

I am not a Lawyer and do not give legal advice. I do have an overseas Law Degree and extensive experience representing myself in the Magistrate, District and Supreme Court and the State Administrative Tribunal (SAT) in commercial and administrative matters and helped others do the same…..

The advertisement was reported to the Law Society and he was successfully prosecuted under the Legal Profession Act for being a person who was not an Australian legal practitioner, but who represented and advertised that he was entitled to engage in legal practice. He was fined $2500, ordered to pay costs (of around $8000) and a spent conviction order was made. A good (lenient?) outcome in the circumstances I would have thought.

Unfortunately, inevitably perhaps, there was an appeal (and a cross appeal against the spent conviction). One of the grounds of appeal was that he was denied procedural fairness. This led Hall J in the SCWA to make the following observation:

[41] There is a particular irony in the fact that the appellant said that he laboured under a significant disadvantage as a self-represented litigant. This was in contrast to the advertisement in which he claimed to have personal experience and knowledge of the Magistrates Court and that he could help others in this regard. This irony was seemingly lost on the appellant.

I won’t bother you with what subsequently happened in the Court of Appeal.

Creative commons acknowledgment for the photograph.

 

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History repeats


Posted on Feb 5, 2019

The parties in Zelino and Ors v. Budai [2001] NSWSC 501 knew they were in trouble, when Justice Palmer (a very fair and patient judge, at least in my view) started his judgment with this anecdote:

In 1725 Mr Everet commenced proceedings in the Court of Exchequer against Mr Williams seeking an account of partnership profits. The plaintiff alleged that the partnership between himself and the defendant dealt in commodities such as plate, rings, watches and other valuables, that the plaintiff and the defendant had dealt successfully in these commodities in the course of the partnership but that the defendant had failed to come to a fair account with the plaintiff concerning the partnership profits. In the course of the trial it was revealed that the business in which the partners were engaged was actually highway robbery and that the plaintiff was aggrieved that the defendant had not handed over a fair share of the spoils. The case was thrown out of Court, both parties were hanged, the plaintiff’s solicitors were attached for contempt and the plaintiff’s counsel was made to pay the costs of the proceedings: see Everet v. Williams (1893) 9 LQR 197; cited in Burrows v. Rhodes [1899] 1 QB 816, at 826 per Grantham J.

Human nature does not change. These proceedings are another example of that obstinate folly which blinds people to the ruin to which their course of action must inevitably lead if they insist upon pursuing it. For at the heart of these proceedings lies a series of revenue frauds perpetrated by the plaintiffs which would never have seen the light of day had the plaintiffs not set their minds on coming to a court of law to vindicate their grievances….

It adds a whole new dimension to “come to equity with clean hands”. Hanged!

Creative commons acknowledgment for the photograph.

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