A Barrister's Blog

The requirement for lawyers to be a fit and proper person has received same media coverage in recent weeks. This means that aspiring lawyers (or those who are already Attorney General) have to have the personal qualities necessary to discharge the duties associated with being admitted to practice. The caselaw says that this requires a commitment to honesty, candour and frankness.

In 2017, a 34 year old applicant disclosed to the QLD Admission Board that, some 10 years prior, he had pleaded guilty to two counts of unlawful sodomy and to two counts of indecent treatment of a child under 16. In fact, the applicant (when he was 20) had worked as a male escort in both Sydney and Brisbane because he was “sexually curious and was eager to widen his sexual experience“.  His clients were always adult males.  He advertised for clients in newspapers. The charges arose from two consensual encounters with a high school student who had responded to the applicant’s advertisement. Remarkably (I thought), the magistrate didn’t record a conviction and imposed 240 hours of community work which was complied with.

The Board said the applicant wasn’t fit and proper. The QLD Court of Appeal (KMB v LPAB [2017] QCA 76) came to a different view. In part it relied on a forensic psychiatrist (who said he was negligible risk of reoffending and had a strong commitment to work, career and community activities). The Court also noted that: (a) it was 10 years since the offences; (b) the applicant hadn’t worked as a prostitute since he was charged; (c) he completed studies in music (at the QLD Conservatorium) and law (at QUT); and (d) had worked as a paralegal in a large Brisbane firm.

In short, the Court found that

[20] In our opinion the evidence shows that in the years since the offences were committed, the appellant has matured considerably.  He has changed from a confused young man to a mature adult who has demonstrated proficiency in his studies as a musician and as a budding lawyer……

[22]….. Rather, the commission of these offences should properly be regarded as aberrant behaviour on the part of an otherwise decent young man. Certainly, at the present date, 10 years after the relevant conduct, there is no basis upon which either the conduct which constituted the offences or the fact of his guilt of a criminal offence should affect a judgment that the appellant is a fit and proper person to be admitted to the legal profession.

Sounds like a pragmatic and fair outcome to me.

Creative commons acknowledgment for the photograph.

You know it’s not easy being a judge when you conclude your judgment (in State of South Australia v Ken & Ors [2021] SASC 10) with the following:

31. I acknowledge that this decision will be a source of great pain to the second and fifth respondents. I can only echo the lament of Doyle CJ in Dodd v Jones who said: ‘Sadly the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weight the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of [the parties]. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.’

The issue before the court, that led his Honour to this position was an intractable dispute about the place of burial of a 24 year old aboriginal man who died intestate and asset-less in 2018.  His body had been held in the Adelaide morgue since that time (yes – 2 years) pending resolution of the dispute. Ultimately, the State (which has standing) brought an application to resolve the issue.

The common law position is there is no property in a dead body (and a body is not capable of being owned). It is also usually the obligation of the executor to arrange the burial. If the deceased is intestate then that task usually the person who applies for letters of administration. Problems arise (like the present case) when there is unlikely to be any application for administration.

Unassisted by common law principles or by any evidence of the deceased’s wishes, his Honour heard evidence from both sides of the family and also had academic material about Pitjantjatjara burial practices. The deceased was born in Port Augusta but had lived most of his life in Pukatja (near the NT border). The judgment is only short and sensitively written and worth reading. The answer to the condundrum is that the burial place was Pukatja.

Creative commons acknowledgment for the photograph.

Some of you will already know the story about why there was a possum in my washing machine (at 1am). Apart from the “ceiling rugby”, I am generally tolerant of living with native animals. However, the relationship became frayed when I started to discover paw prints at various places throughout my house and eventually saw a (brush) tail hanging down from the fireplace one evening. I had no choice but to call “possum busters” who I assumed would catch and relocate the offending possums. Well, that was before I became aware of the maze of legislation and regulation created by the Bio-Diversity Conservation Act 2016 (BDCA).

Possums, in fact nearly all native fauna (except dingoes), are protected (Sch 5 BDCA), which means (section 2.1) that you can’t harm (or attempt to harm) them, unless you have a bio-diversity conservation licence (which is what you’d need if you wanted to go roo shooting). “Harm” is defined and includes “kill, injure or capture“.

Interestingly, the National Parks and Wildlife Act 1974 (NPWA) (which is the origin of a lot of the BDCA)  has a different definition of harm (“includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of an animal“).

Okay, so the possum busters need to licensed. But that’s not all. There is a “Possum management policy” made pursuant to the NPW regulations (because it hasn’t been updated to BDCA?). Under that policy (clause 15) “A possum must be released on the property and not more than 150m from the point of capture. The possum should be released against a structure that they can immediately climb such as a tree or fence.” 150m doesn’t seem very far to me (it’s because they are territorial). Anyway the possum man explained to me that they patch up all the access points and install a 1 way door so the possum can get out of the roof but not back in.

I assume that the possum that was locked out of its home in my roof, thought that when the back door was opened that night it was an invitation to come back in. Anyway, after a face to face encounter with me, I chased it and it became cornered in the laundry. Seeing the open door on the washing machine it decided to take refuge in there. With a bit of prodding, I finally encouraged it to leave.

Cricket season is upon us and I was recently listening to a discussion on the radio about changing attitudes (and regulation) of alcohol at sporting events.  It has been an offence(since the Sydney Cricket Ground and Sydney Football Stadium Amendment By-law 1997)  to take alcohol into the SCG or the SFS (before it was demolished). We all now accept that there are now restrictions on how much beer can be purchased on site.

However, I didn’t realise that in the 1970’s the amount of alcohol you could take into the SCG was one carton per person per day. What could possibly go wrong? If you’re interested in the good old days of “beer snakes”, “beer wenches” (girls employed to buy beer for the boys) & even beach balls, then have a look at this interesting article in the UK Daily Mail. Apparently an eye watering 460,000 cans of beer were consumed at the SCG during the 4th Ashes test in 1974/75.

The SCG alcohol ban was made at around the same time as amendments to the Liquor Act in 1997 which made “harm minimisation” the object of that Act. Formal regulations for responsible service of alcohol didn’t start until 2008.

Despite all that, I was surprised to learn that responsible service of alcohol has a century plus pedigree in NSW. Section 46 of the 1912 Liquor Act provided: “If any licensee permits drunkenness or any indecent, violent, quarrelsome, or riotous conduct to take place on his licensed premises, he shall be liable for the first offence to a penalty not exceeding five pounds and for the second or any subsequent offence to a penalty not exceeding twenty pounds“. It was a defence if he has taken “all reasonable steps to prevent drunkenness on the premises.”

I wish all readers a merry xmas and happy new year. Drink responsibly!

Creative commons acknowledgment for the photograph

I recently read a Thomson Reuters newsletter about the legal risks of the office Xmas party, including virtual ones: “Think team members with Santa hats and reindeer ears eating and drinking together, making small talk (albeit with the occasional two-second awkward delay), swapping gifts, playing games and dancing … all in the comfort of their own homes“…. aaargh!!!

Of course, its much more fun to blog about the people who didn’t heed the risks. In early 2007 Telstra held a combined farewell/belated Xmas party for the employees of one of its stores. Some of the employees hired a hotel room for the night. That might have been a good idea, although its apparent from the judgment of the full bench of the AIRC [2008] AIRCFB 15, that things got a little out of hand:

(14) During the course of the night in the room in Hotel B, Ms XXX was involved in rowdy behaviour, bathed with both the fourth employee and another employee, stood by in the bathroom with a towel around her naked body while the first employee went to the toilet and then, while the first employee was still there, dropped her towel to get back in to bathe with the fourth employee and the other employee, and had sexual intercourse with the fourth employee within the view and/or earshot of the first employee, second employee and third employee.

(15) On 25 February 2007, the first employee rang the then Acting Manager of Telstra’s Miranda store. She was hysterical.  She told him about Ms XXX’s activities in the room at Hotel B. The Acting Manager subsequently spoke to the second employee. She was very quiet. She told him “it was all messed up”. The second employee was scheduled to work at Telstra that day but was not able to do so as she was crying and hyperventilating. He also spoke to the third employee who was equally distressed and disgusted about the activities.

Unbelievably (initially at least), Telstra agreed to reinstate Ms XXX and pay her compensation for her termination of employment. I am unsure what happened but Telstra sought leave to appeal against that decision and the full bench (by majority) found that Ms XXX’s termination was not harsh, unjust or unreasonable.

Creative commons acknowledgment for the photograph.

My comments in last month’s post were directed at avoiding unnecessary issues relating to first/last day time calculations. After that post I was reminded (another shout out to David Wang of Hyde Park Legal), that the principles of Murphy’s Law (if anything can go wrong it will) apply with full force to looming deadlines.

In Tu v Chang [2017] NSWDC 352 (a Wechat defamation case), the limitation period expired on a Monday and on the Friday prior a commercial agent duly delivered the statement of claim to the registry “bulk box”. Unfortunately, even though the parties were correctly named, several of them were described as “first defendant”. This was enough for the registry staff to reject the filing – a state of affairs that didn’t come to light until Tuesday. As a result the plaintiff had to file a motion to (successfully) seek orders about the date of commencement of proceedings (on the basis that the filing was wrongly rejected).

There are some interesting observations in the judgment including the court’s powers to deal with irregularities and how modern case management has changed practice because: “failure to comply with the provisions of the Act and UCPR is hardly unexpected“. Substance will prevail over form it seems.

If you think the District Court registry were tough, one of the cases referred to was Marson v Network Ten [2016] NSWSC 1245 (another last day filing of a defamation matter – this time in the Supreme Court). In that case filing was rejected because: “…it was fastened with a Tudor owl paper clip instead of a staple and the accompanying documents were put together with a bulldog clip” (in breach of r 4.3 UCPR).

To these examples I can add my own horror story of an application to set aside a statutory demand which required an appearance before a duty judge at 6:30pm (special after hours fees were incurred) on the 21st (i.e. last) day, for the sole purpose of filing documents. The freshly filed documents then needed to be served before midnight (which they were because the solicitors for the defendant had after hours reception facilities).

Although sometimes, “things happen”, the motto of the story remains – don’t mess with limitation periods!

Creative commons acknowledgement for the photograph.