A Barrister's Blog

The lighter side of law

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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The Application Form

Posted on Dec 20, 2018

Up until yesterday, I thought the most interesting part of Australian visa application forms were the character questions which include things like have you ever been: “charged with, or indicted for: genocide, war crimes, crimes against humanity, torture, slavery, or any other crime that is otherwise of a serious international concern?”; or “associated with an organisation engaged in violence or engaged in acts of violence (including war, insurgency, freedom fighting, terrorism, protest) either overseas or in Australia?”

Then I came across this question (which requires a yes/no answer) on the application form for a spouse visa: “Does the Applicant have any parents, siblings or children including those that are deceased?”….think about it.

Creative commons acknowledgement for the photograph.

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Secret Santa

Posted on Nov 27, 2018

Deck the halls with boughs of holly
‘Tis the reason to be jolly 

It’s not that difficult to imagine how an office Christmas party might get out of hand and many of you will remember last year’s post about Mr Keenan. However, short of truly cringeworthy or inappropriate gifts (sex toys and the like…. does this still happen?), you might expect that the humble Secret Santa between work mates would be in the right spirit and generally be a source of goodwill…. apparently not.

In 2012, there was a secret santa in the office of the Finance Department in Canberra. One worker’s kris kringle gift to his work colleague was a toy reindeer which pooped chocolate. I would have thought that might elicit a smile or two. However, the gift’s recipient (now a former analyst) interpreted it as a commentary on the quality of his work which implied that his economic modelling was “reindeer pooh”. Feeling targeted, humiliated and traumatised at the “soul destroying” prank, the analyst reluctantly accepted a redundancy from his position about 6 months later.

This case received coverage in the press at the time and also prompted a November 2015 directive from the Australian Public Service Commission about work-related end-of-year functions which, the APS reminded its members “are a time for colleagues to come together and celebrate the festive season“. However, public service employees were also encouraged to be mindful of: “buying ‘Secret Santa’ gifts on the assumption that everyone shares the same sense of humour“.

Shout out to Mariette Lewis for finding this story for me. Creative commons acknowledgment for the photograph.

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Package Deal

Posted on Oct 30, 2018

Many people don’t realise that section 262 of the Migration Act creates a “liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons“. What this basically means, is that if you are unfortunate enough to be taken into immigration detention you are going to have to pay for it. It also means that “appropriate arrangements” have to made in respect of outstanding debts, if any future visa applications are to be successful.

From 30 June 2018, the daily maintenance amount is $489.11 per person, for “accomodation” in onshore detention facilities (see Legislative Instrument 18/022: “Determination of Daily Maintenance Amounts for Persons in Detention Instrument 2018”).   That amount is intended to cover:

  • the cost of keeping and maintaining the person in immigration detention
  • the cost of transporting and securing the person between the vessel and to the place of detention, and the cost of transporting the person between detention facilities.
  • if the person is to be removed from Australia at the cost of the Commonwealth, the cost of that removal and the cost of transporting the person who is securing the person being removed. 

According to the website of the 5 star Westin Hotel in Martin Place, the mid-week rate (at the time of writing this post) for a superior room with breakfast was $385/night. That rate of course doesn’t include airport transfers and a one way flight.

Creative commons acknowledgement for the photograph.

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The Judgment

Posted on Sep 28, 2018

I recently read Sir Frank Kitto’s article “Why Write Judgments” which appeared in (1992) 66 ALJ 787. Many of my posts over the years have been about amusing things that Judges have written. However, the anecdote about an after dinner speech urging the High Court to put more colour into its written work really made me smile:

In the dead of night, on All Hallows Eve, on a lonely road illumined  by the wan light of a dying moon and winding serpent-like through the trees that stood as ghostly sentinels soon to become silent witnesses of stark and bloody tragedy …. Therefore this appeal should be dismissed with contempt as well as with costs.”

I actually read the article in the context of an “award” that I have to write for an Arbitration course that I’m doing. Writing like that might not go over too well with the examiners.

Creative commons acknowledgment for the photograph.

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