A Barrister's Blog

The lighter side of law


The Xmas Party No. 2


Posted on Nov 14, 2019

The Christmas party season is on us again and it’s time to trawl the industrial law cases for examples of model behaviour (or not) which occurs at these functions (see also my 2017 and 2018  posts).

The 2004 Christmas party for Aristocrat Technologies was held at Dockside at Cockle Bay (on the balcony level). The party (which I am not referring to as a “p*ss up” for reasons which will become obvious presently) was fully paid for by the company and the preparation for it included meetings with union delegates and employees about the company’s expectations around responsible drinking and behaviour. There was also a company code of conduct and an “alcohol, drugs and the workplace policy”.

Although the party started at 6pm, Mr Brown was one of the first to arrive at 5:45pm. He was also, some 12 (or perhaps 15) beers later one of the last to leave at 10:15pm (the music stopped at 10pm). His drinks may (or may not) have been spiked with vodka by another employee Mr Wheatley who bought his own spirits to the function (because he didn’t like wine or beer). Nevertheless at 10:15pm, Mr Brown was seen on the balcony urinating onto the diners in the restaurant below (cringe). He received (literally) a clip over the ear from Mr Wheatley who talked him into paying (using his personal credit card) for the meals of the affected (and understandably unhappy) guests on the lower level.

There were then two separate scuffles (near the Imax theatre) between Messrs Brown and Wheatley, the second of which involved the police being called. The police in turn called an ambulance and the next thing that Mr Brown remembered was waking in hospital with “a severe headache unlike any he had experienced before”.

Unfortunately, his behaviour also created a headache at work and his employment was ultimately terminated as a result of his behaviour that night. He unsuccessfully sought reinstatement.  The Australian Industrial Relations Commission found (perhaps not surprisingly) that his dismissal wasn’t harsh, unjust or unreasonable. Undoubtedly this type of case must be every HR department’s worst nightmare. You can read the whole fiasco of Brown v Aristocrat Technologies [2005] AIRC 656 if you are interested.

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Ceremonial Bows


Posted on Oct 22, 2019

The 2019 senior counsel appointments were recently announced. The tradition in England was that on the appointment of silk, the appointee would process in turn to each of the courts that are sitting, announces his or her appointment and make their bow. In NSW there are bow ceremonies in which the leader of the Bar announces to the Chief Justice the newly appointed silk.

When Jeffrey McLennan was appointed silk in 2014, he was unable to attend the main ceremony and took his ceremonial bows before Hamill J in the Supreme Court sitting in Grafton. A short congratulatory speech was delivered, which included the following:

You have shown excellent judgment, a deep and broad knowledge of the relevant legal principles, a quietly persuasive advocacy style, a deft touch with witnesses and a polite doggedness in the face of repeated judicial interruptions of your arguments. You may have felt that the fourth day of the pre-trial voir dire was a little like the tax case in the High Court that Justice Starke said was “argued over nine days by the Court with the occasional assistance of counsel”: Federal Commissioner of Taxation v Hoffnung Ltd (1928) 42 CLR 39 at 62.”

and….

“…I also note that your capacity to organize a brief and to colour code it confounds even the most anal retentive of those who instruct you.

I have had some experience of this in the current trial featuring as it does a number of plastic folders of photographs and diagrams. Exhibit A was a colour best described, I think, as Fuchsia. Exhibit F was a kind of lime green. Exhibit HH was burnt – or perhaps Tuscan – orange. You relented a little with Exhibit NN – it was red – and exhibit RR, which was blue.

When we came to exhibit XX I asked if you had run out of colours. I was delighted when you patiently explained ‘no your Honour, this is the rainbow region’.”

Shout out to Elleni Zacharia for giving me the idea for this post.

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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.

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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‘”.

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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….”

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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.

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