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Legal Aid Funding for Co-Accused Representation Policy Changed in Aftermath of Decision in R v Pham

Posted on Categories Criminal lawTags , , , , Leave a comment on Legal Aid Funding for Co-Accused Representation Policy Changed in Aftermath of Decision in R v Pham

 

The matter concerned drug trafficking charges involving 3 co-defendants, including Mr Pham. Legal Aid provided the funding to private lawyers to represent the 3 co-accused at the trial. The co-defendants were all represented by the same firm of solicitors, although not by the same individual solicitors from within that firm.

At trial, one of Mr Pham’s co-defendants gave evidence that implicated Mr Pham in the drug-trafficking crime. Mr Pham did not give nor call any evidence, and relied solely on the evidence given by that co-defendant for his own defence.

Mr Pham was convicted of the drug-trafficking offence as a result of that trial. In making this appeal Mr Pham alleged that the solicitors representing the co-defendants had failed to advise him about the content of this evidence before the trial. Mr Pham further alleged that this failure allowed him to be inculpated without being afforded the opportunity to explain himself, and that as a result he did not have a fair trial.

The Facts

The co-defendants including Mr Pham were tried for attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin. The heroin had been brought to Brisbane from Vietnam, concealed inside 2 wooden altars in a shipping container, on 28 October 2012.

The altars had been intercepted on 6 November 2012 by Customs and other Commonwealth authorities without the knowledge of the co-defendants. The interception was made after Customs detected 78 packages of white powder hidden inside the altars. The white powder was forensically analysed, and subsequently discovered to be pure heroin.

The heroin contained in each altar was covertly removed by the Federal authorities, before being replaced with an inert white powder that visually appeared to be the same as heroin. The white powder was contained in identical looking plastic packages, and the altars were also fitted with concealed surveillance and tracking devices whilst the heroin was replaced with the white powder.

The altars were then delivered to a property in Robertson on 9 November 2012 where they remained overnight before being collected and moved by the co-defendants, including Mr Pham using a hire trailer towed by a Victorian registered Nissan X-Trail. The X-Trail had been hired by one of other the co-defendants. Mr Pham was not driving the X-Trail, but was following it in another vehicle with another of the co-defendants.

The altars were taken by the co-defendants to a shed in the suburb of Munruben, where the altars were stored for the night, before being dismantled by the co-defendants the following day.

It was whilst the co-defendants were inside the shed dismantling the altars and recovering the packages that the shed was raided by the police, who apprehended the co-defendants, including Mr Pham, at the scene.

Mr Pham claimed that he did not know the packages contained heroin, and claimed that he did not intend to possess it as was alleged by the prosecution.

Mr Pham was convicted of the charge of attempted possession of a commercial quantity of unlawfully imported border controlled drugs and sentenced to 12 years imprisonment.

Mr Pham then appealed his conviction.

Grounds of Appeal

Mr Pham pursued the following grounds of appeal:

1. The verdict reached by the jury was unsafe and unsatisfactory.

2. The learned trial judge failed to direct the jury in accordance with the elements of the offence.

3. The appellant’s solicitors had an actual, or at least an apparent, conflict of duties caused by the same firm of solicitors acting for the co-defendants.

4.The learned trial judge erred in not directing the jury to consider whether the evidence established the defence provided for by sub-section 307.5(4) of the Criminal Code.

5. The appellant’s solicitors had an actual, or at least an apparent, conflict of duties caused by the same firm of solicitors acting for the co-defendants. The appellant was thereby deprived of a fair trial.

There were specific particulars cited by Mr Pham for Ground 2 to justify his argument, which are detailed and extensive, and can be summarised as follows:

2.1 The learned trial judge erred in directing the attention of the jury to two different substances when considering the elements of the offence….

2.2 … the learned trial judge erred by directing the jury to decide whether the appellant intended to have custody or control of the contents of the altars as they were on 10 November 2012.

2.3 … the learned trial judge erred by leaving the case to the jury.

2.4 In the alternative to 2.3 above, … the learned trial judge erred by failing to direct the jury that it was necessary in order to convict the appellant for the jury to be satisfied beyond reasonable doubt that the appellant intended that the contents of the altars had been unlawfully imported and amounted to a commercial quantity of a border controlled drug… and the learned trial judge erred in not directing the jury to consider whether the evidence established the defence provided for by sub-section 307.5(4) of the Criminal Code.

Mr Pham also applied to the Court for leave (permission) to adduce (provide new) relevant evidence to prove Appeal Ground 4 that the conduct of his case by his former lawyers deprived him of the chance to receive a fair trial, and that therefore his conviction was wrongfully entered against him. The application for leave to adduce the evidence was ultimately dismissed unanimously by all of the 3 judges hearing the appeal.

Relevant law

Commonwealth Criminal Code

Section 307.5: Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

Section 13.4: Legal burden of proof defence

Section 11.1: Attempt

Section 5.2: Intention

Australian Solicitor’s Conduct Rules

Rule 11: Conflict of duties concerning current clients

Queensland Criminal Code

Section 620: Summing up

Section 668E: Determination of appeal in ordinary cases

R v Szabo [2001] 2 Qd R 214; [2000] QCA 194

R v Onuorah [2009] NSWCCA 238; (2009) 76 NSWLR 1

The Court of Appeal’s Decision

The appeal against conviction by Mr Pham was dismissed by the Court of Appeal, and Mr Pham’s application for leave to adduce evidence was also dismissed.

The judgement of the Court of Appeal was written by the President of the Court of Appeal, Margaret McMurdo, with whom Morrison and Philippides JJA agreed. Morrison JA added his own additional reasons for why he agreed with the reasoning of the President to the final judgement transcript, as did Philippides JA.

With respect to the grounds alleging misdirection by the trial judge McMurdo P held that:

“… In light of the evidence in and the appellant’s conduct of the case, and the judge’s comprehensive directions to the jury as to the elements of the offence, together with her Honour’s subsequent discussion of the question trail, the appellant has not demonstrated that the judge erred in framing questions 1 and 4. The appellant has not demonstrated any miscarriage of justice arising from those questions. This ground of appeal is not made out.”

The reference here to questions 1 and 4 is a reference to a questionnaire the trial judge suggested the jury could use to assist it in considering the evidence before it for its verdict. The trial judge however did not direct the jury that this was the only suitable way in which the evidence could be considered in order for the jury to reach a final verdict…

It was not his case at trial that he did not know the border controlled drug he was attempting to possess was imported. As the appellant did not meet the evidentiary onus placed on him by s 307.5(4) as informed by s 13.4(b), the judge was correct in not directing the jury on that defence. This ground of appeal is not made out.”

With respect to Ground 1 McMurdo P held that:

“The appellant contends that the evidence at his trial was insufficient to support an inference beyond reasonable doubt that he knew or believed the altars contained a border controlled drug rather than some other illicit goods like cigarettes or tobacco….

As this Court has found, that verdict was not unreasonable or unsupported by the evidence. The jury were also entitled to reject as unreasonable the possibility that the appellant may have assisted and been prepared to keep silent because he was afraid or for some other reason, and his claim that he did not believe the altars contained unlawfully imported border controlled drugs rather than something less sinister like tobacco.

After reviewing the whole of the evidence admissible against the appellant, I am persuaded that the jury were entitled to infer beyond reasonable doubt that he attempted to possess a commercial quantity of the border controlled drug, heroin, when he assisted in moving the altars from Robertson to Munruben and when he removed the contents of the altars at Munruben. It follows that this ground of appeal is not made out.”

With respect to Ground 5:

“Mr Pham relied on the case of R v Szabo, where the court in that case used the following test to determine whether the defendant in that matter had suffered a miscarriage of justice. The test is whether ‘An ordinary fair-minded citizen in the position of the appellant, with knowledge of all relevant circumstances, would have at least a lingering suspicion that the appellant did not have the benefit of fair play’.”

McMurdo P held that:

“As I have explained, the present case differs from Szabo, where Mr Szabo deposed that, had he known of his defence counsel’s recent past sexual relationship with the prosecutor, he would have changed his barrister. By contrast, this appellant apparently gave informed, signed instructions that he did not wish to give evidence in his trial, apparently because Mr Tran was to give evidence which would be helpful to the appellant. That is what transpired.

His counsel then had the advantage of addressing the jury after the prosecutor. The appellant does not contend that any of the evidence led in his joint trial with Mr Tran, particularly that part of Mr Tran’s evidence which implicated him in the physical element of the offence, was untrue. Nor has he deposed that, had he known the details of Mr Tran’s evidence in advance, even those parts that inculpated him, he would have conducted his own trial differently.

In these circumstances, a fair-minded observer, with the knowledge that Mr Tran and the appellant were represented by different solicitors from Bosscher Lawyers instructing different barristers, would not entertain a reasonable suspicion that justice had miscarried. This ground of appeal is not made out.”

The Aftermath

Legal Aid Queensland decided in light of the arguments raised by Mr Pham in his appeal against his conviction that its previous policy on law firms acting concurrently for 2 or more co-accused was unrealistic and dangerous.

The previous policy position was that it was permissible for a law firm to act concurrently for 2 or more co-accused so long as the law firm acted in a professional manner when handling the cases of the co-accused, and did its best to ensure that it did not compromise one co-accused’s rights whilst attempting to uphold those of another co-accused.

As a result of this Legal Aid Queensland has now implemented a strictly one accused per law firm policy for criminal matters. If a law firm wishes to act concurrently for another co-accused, the firm must apply to Legal Aid for Legal Aid’s clearance to act concurrently for 2 or more co-accused.

Legal Aid Queensland will then assess the request for clearance by seeking to accurately determine whether or not that law firm can guarantee that in acting concurrently for 2 co-accused it will not harm either co-accused’s case by acting for the rights and interests of either co-accused. If a law firm that is seeking the clearance of Legal Aid Queensland cannot satisfy Legal Aid Queensland of this, Legal Aid Queensland will not approve the request, and that law firm will have to discontinue acting for one of the co-accused. It could even potentially mean that a law firm must cease acting for all prospective co-accused if the matter has not progressed too far, or if Legal Aid Queensland instructs the law firm that it must discontinue acting.

Conclusion

Legal Aid Queensland has determined that the best way to ensure that a criminal accused’s rights and best interests are protected and promoted is to ensure that the accused’s legal representation is solely dedicated to their matter, and that the criminal accused is not put in a position where their rights and best interests are burdened by another co-accused’s rights and best interests also being handled by the same law firm. This policy change is intended to achieve that goal.

Serial litigant loses right to pursue claim against Barrister

Posted on Categories Legal profession, Professional negligenceTags , , , , , , Leave a comment on Serial litigant loses right to pursue claim against Barrister

The matter originally concerned a claim for professional negligence by serial litigant Mr Edward Amos against a barrister he used to engage named Christopher Wiltshire.

The ‘long and winding road’ of litigation was effectively ended by the Queensland Court of Appeal this week when it dismissed an appeal against a decision by the District Court to dismiss the claim for want of prosecution.

This case demonstrates that a litigant’s motives and the way in which they conduct their litigation will be strong factors that influence whether their right to pursue their claim will be terminated by a court.

The facts

In order to understand why the District Court and the Court of Appeal ruled the way they did, it is necessary to understand the long history of the matter, briefly summarised as follows.

June 2009: Amos commences his claim against Wiltshire, alleging negligent advice which he relied on in alleging fraud in another proceeding against a costs assessor which had been subsequently dismissed with indemnity costs.

25 March 2010: Samios DCJ of the District Court finds for Amos with costs after a trial on 11 March 2010.

22 October 2010: Wiltshire has the judgment of Samios DCJ set aside with costs on appeal due to non-disclosure of relevant documents by Amos, and a retrial is ordered. Amos subsequently applies unsuccessfully for leave to the High Court to have the Court of Appeal’s decision overturned.

2 August 2012: Amos applies to the Court of Appeal seeking to have its decision of 22 October 2010 set aside based on ‘new evidence’, which leads to a trial on 8 and 9 April 2014 in the Supreme Court’s trial division for factual determinations, and two more subsequent appeals by Amos to the Court of Appeal, as well as an Application to the High Court for special leave which was refused.

28 August 2015: The Court of Appeal dismisses Amos’ applications with written reasons subsequently published finding that Amos’ “attempts to set aside the Court’s orders of October 2010 lacked any reasonable basis” and which refer to “the appalling history of the litigation in this Court”.

16 December 2016: The proceedings dismissed by McGill DCJ of the District Court with costs for want of prosecution. Amos appeals this decision.

Grounds of Appeal

There were three grounds of appeal against the decision of McGill DCJ pursued by Amos which can be summarised as follows:

  1. That the District Court had no jurisdiction to dismiss the proceedings because the Court of Appeal (a superior Court) had ordered a retrial on 22 October 2010.
  2. That Gill DCJ had erred by finding that Amos’s steps by way of appeals were not steps to prosecute the District Court proceedings.
  3. That Gill DCJ had erred by concluding that there was a real risk that a fair trial could not be had.

Relevant law

Section 22 of the Civil Proceedings Act 2011 (Qld) (which applies to the District and Magistrates Courts) provides that:

“If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.”

The definition of “proceeding” in schedule 1 of the Civil Proceedings Act 2011 (Qld) provides that “proceeding” means:

“a proceeding in a court (whether or not between parties), and includes –

(a) an incidental proceeding in the course of, or in connection with, a proceeding; and

(b) an appeal or stated case.”

In Elliott v Ajax Insurance Company Limited it was held that the filing of a notice of appeal is a proceeding or act in an action in the initiating court.

In Harris v Quine, it was held that that an appeal “… was nothing more nor less than a continuation of the original suit”.

The Court’s decision

Morrison JA wrote the judgment which the other two judges (Gotterson JA and Flanagan J) agreed with.

Given that the appeal concerned the exercise of discretion and Amos’ right to pursue his claim, Morrison JA granted leave to appeal nunc pro tunc.

In respect of Ground of Appeal 1, Morrison JA held that:

On no reasonable reading of the order made on 22 October 2010, could it be suggested that the Court of Appeal was issuing some form of mandatory injunction by which the only thing the District Court could do was have a trial. On the contrary, it was simply saying that a new trial was the mechanism by which the whole of the evidence, including the evidence previously held back, could be assessed. It was, of course, up to the District Court to manage its processes with a view to conducting that trial. The order of 22 October 2010 was never intended to circumscribe what might happen in the District Court.

In my view, it is plain that the Court of Appeal intended that the District Court would be in a position to deploy any and all of its powers under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to progress the proceedings once again to a trial, so that the issues could be finally determined on a proper basis. That would include the power to bring the proceedings to a summary end, if the circumstances warranted that course. How could it be otherwise? Plainly there would be further orders for disclosure and, perhaps, production of particular documents. If that disclosure revealed, for example, that Amos’ case was bound to fail, it could not sensibly be suggested that the Court of Appeal intended that the parties would doggedly proceed to a fruitless trial. Such a course would run counter to the objects of the UCPR, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: r 5(1).

In respect of Ground of Appeal 2, Morrison JA outlined the above history of the litigation in detail including the Court of Appeal’s earlier findings that Amos’ attempts to overturn the Court of Appeal’s decision of 22 October 2010 had no reasonable basis and were generated by false and tailored evidence, as well as Gill DCJ’s finding that the appeal steps did not amount to steps taken in the District Court proceedings.

Morrison JA formed the conclusion that “All of the steps taken by [Amos] since that time, in courts other than the District Court, have been in an effort to sustain the unfairly obtained District Court judgment, rather than to progress the new trial ordered by the Court of Appeal”, and that “the lack of any reasonable basis for the steps that were taken by Amos prevents them being characterised as prosecuting the proceeding”.  Therefore, none of the Applications to the Court of Appeal, nor the Applications to the High Court were deemed to be steps for the purpose of section 22 of the Civil Proceedings Act 2011.

In respect of Ground of Appeal 3, Morrison JA found that there was no merit in this ground for the following reasons:

  1. The findings of Martin J and the Court of Appeal with respect to Amos’ unreasonable basis for attacking the Court of Appeal’s decision of 22 October 2010 together with the quality of the evidence and the conduct of Amos in tailoring evidence to suit his case meant that the delay on the part of Amos was inexcusable.

 

  1. Even if Amos had been successful on his application to set aside the orders made on 22 October 2010, the likely result was that a new trial would still have been ordered.

 

  1. In context, any delay on the part of Wiltshire pales into insignificance.

 

  1. As it was 10 years since the relevant conversation that Amos and Wiltshire would be required to recall at the new trial, the evidence provided at the new trial would consist of reconstruction rather than recollection.

 

  1. The finding of McGill DCJ that prejudice would be suffered by Wiltshire because “ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them” were ‘undoubtedly correct’ as “there has been an extraordinary period of delay and interference with Wiltshire’s life, caused by Amos making attempts to overturn a Court of Appeal decision, and all those attempts have been without a reasonable basis. There cannot be any real question, but that Wiltshire has suffered prejudice by having the vexation of the case for so long”.

 

  1. The extraordinary conduct of Amos in refusing to repay the amount of the District Court judgment, which he had been twice ordered to repay but had failed to do so until shortly before the hearing of the appeal, notwithstanding the fact that on 27 September 2012, he had consented to an order that he repay the amount of the judgment and interest. This conduct was held to be deplorable.

Conclusion

Central to the reasoning of Morrison JA was the fact that instead of taking steps to have the retrial pursuant to the Court of Appeal’s decision on 22 October 2010, Amos instead repeatedly sought to challenge that decision. Morrison JA considered that “Amos’ pursuit of that course deserves censure” as “there was never any reasonable basis for him to challenge the orders made by the Court of Appeal on 22 October 2010”.

The moral of this case is that the conduct of a party in their litigation will be central to whether they will be allowed to pursue their case after a period of delay in legitimately progressing their matter. When exercising its discretion on whether to strike out a proceeding for want of prosecution, the court will take into account the reasonableness and motives of the parties in the decisions they have taken.

In this case, the unreasonable attempts to overturn the Court of Appeal’s decision of 22 October 2010 to set aside the judgment and order a retrial of the matter weighed strongly against the claim being allowed to continue. Rather than take steps to progress the matter towards the retrial, Amos had refused to accept the Court of Appeal’s decision of 22 October 2010 and sought repeatedly and unreasonably to contest it. After numerous applications, appeals and significant delay, the District Court and the Court of Appeal determined that it was inappropriate to allow the matter to continue. The Court of Appeal’s decision can therefore be seen as a merciful termination of drawn out and horrendously expensive litigation.

This case demonstrates that the right of a party to pursue a claim to conclusion is not necessarily absolute, but rather can be conditional on them complying with the letter and spirit of the law, court orders and the need for litigation to be conducted efficiently and reasonably. Amos lost his right to pursue his claim because he was found to have acted unreasonably in repeatedly challenging the Court of Appeal’s decision of 22 October 2010 without sufficient grounds.

Lorna Jane’s comprehensive court win

Posted on Categories Evidence, Industrial relations, Personal InjuryTags , , , , Leave a comment on Lorna Jane’s comprehensive court win

 

Amy Louise Robinson was employed by activewear company Lorna Jane Pty Ltd between July and December 2012 as manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.

 

Ms Robinson claimed to have suffered a psychiatric injury from workplace bullying by Megan McCarthy (Lorna Jane’s learning and development manager) and haemorrhoids when lifting and moving heavy boxes of stock during the course of her employment.

 

Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. The claim for psychiatric injury alleged that Lorna Jane was vicariously liable for the actions of McCarthy and also that an email from a former DFO store employee named Ms Maninnen which alleged ill-treatment of Robinson by McCarthy had put the company ‘on notice’ and that it had subsequently failed to investigate.

 

Both liability and quantum were in dispute although there was no dispute between the parties concerning the following:

1. liability is to be determined in accordance with the civil liability provisions contained in sections 305-305E of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) (Reprint 6A);

2. Lorna Jane owed Ms Robinson a duty to take reasonable care for her safety in the workplace; and

3. such duty included taking reasonable care to avoid psychiatric injury.

 

The decision

 

Judge Koppenol dismissed the claim, finding against the plaintiff on liability and quantum.

 

The claim was dismissed by Judge Koppenol as a result of the following findings:

1. That the Maninnen email did not put Lorna Jane ‘on notice’ because that email only expressed opinions and conclusions and did not provide any context which would have enabled Lorna Jane to form their own views based on the email.

2. In any event, Lorna Jane’s national sales manager Claire Perrin had taken appropriate action by reporting the email to Lorna Jane’s HR department, attempting to make contact with Maninnen about her email and meeting with Robinson shortly afterwards to see if she had any concerns about her employment.

3. Whilst there were extremely different accounts of the meeting between Robinson and Perrin, the evidence of Perrin should be accepted because Perrin was ‘an impressive and credible witness’ whilst Robinson was ‘a most unreliable witness’. Therefore, it was not found that Robinson had raised her concerns at McCarthy’s treatment at that meeting as Robinson alleged.

4. Robinson was not an honest witness for the following reasons:
a) Her evidence of her employment history, including having been club general manager at Curves Aspley since 2010 and having worked in London was contradicted by tax records and other material which revealed she earned minimal income from paid employment prior to commencing at Lorna Jane.
b) She had informed a psychiatrist named Dr Garg that “social anxiety prevents her from going out and meeting people, or having people over to her house”, and that she “avoids going to the local shops where she might run into people she knows.”, however, her Facebook account told a different story, showing to be socially active.
c) Ms Robinson also told Dr Garg in January 2017 that whenever she saw the Lorna Jane brand, she “starts shaking with anxiety … [which] leads to her getting palpitations, shortness of breath and sweating”. However, photographs shown to the court showed that she was wearing Lorna Jane clothing after her employment had ceased.

5. Robinson was not bullied by McCarthy (and hence Lorna Jane were not vicariously liable for any bulling) for the following reasons:

a) It was unlikely that McCarthy had referred to Robinson as ‘cheap’ on the first day of Robinson’s training because Robinson had said that at the time they got along well.

b) Robinson did not provide any examples of when the term ‘generator’ was used in a nasty way and there was no evidence that McCarthy had ever done so.

c) a Facebook post by McCarthy which used the term ‘generator’ did not name Robinson and McCarthy claimed (and the Court accepted) that it was not directed at anyone but was posted in frustration at her job.

d) Robinson’s evidence that McCarthy had made weekly comments about her weight was rejected because there were no other witnesses of such comments and they were not reported to Perrin, the notes Robinson said she made of the comment were never produced and a contemporaneous photograph showed that Robinson was not overweight at the time.e) Ms Robinson’s complaints about McCarthy’s alleged dismissive conduct have not been established on the balance of probabilities.

6. The risk of psychiatric injury to Ms Robinson was not reasonably foreseeable because the role of manager inherently involves some stress, employees chose their jobs with employers being entitled to assume employees are able to cope with them, there were no warnings signs of such injury’ and ‘an employer is not expected to be a mind reader’.

7. Lorna Jane were not in any event vicariously liable for McCarthy’s Facebook posts because they were personal posts on a personal page and the ‘controlling High Court decisions in this regard’ did not impose vicarious liability on such posts.

8. Robinson did not suffer any physical injury to her perianal area as there was no medical evidence that she sought treatment soon after incurring this alleged injury, the records of her medical examinations by Dr O’Connell made no such mention of this injury, and the absence of any corroborative evidence from an employee at the DFO store.

9. Due to the above credibility issues, Judge Koppenol was not satisfied that Robinson had suffered any work related mental health condition notwithstanding the fact that she had been accepted for Workcover, and therefore assessed quantum as $nil. Her complains were attributed to a combination of exaggerations and a pre-existing mixed personality disorder.

Conclusion

This was clearly a comprehensive win for Lorna Jane as every single issue was decided in its favour at trial.

 

When diligent lawyers investigate the claim thoughly and identify discrepancies between what a Claimant says and the objective evidence, this will inevitably harm a Claimant’s credibility.

 

This case highlights the importance of a Claimant being honest throughout their claim. Any lie or exaggeration once exposed will damage their credibility and hence their prospects of having their evidence accepted by the Court. Claimants in personal injury claims would be well advised to be scrupulously honest at very step of their claim in order to preserve their credibility.

 

How you can save on legal fees

Posted on Categories Legal profession, Professional feesLeave a comment on How you can save on legal fees

This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show.

Be proactive

Most clients only come to see a lawyer when they are in legal trouble. Unfortunately, by this stage there is often only so much your lawyer can do to help you, and usually the remaining legal options are going to cost a lot of money.

For instance, when you have an important agreement or arrangement with a person, it’s often better to obtain legal advice and have a written agreement. This will prevent disputes about the content of your agreement and make everyone clear on their rights and obligations under the agreement. This in turn significantly reduces the risk of a dispute and you later having to go to court and pay massive legal fees.

Also, if you recieve a letter of demand, you should either pay the demand or see a solicitor immediately. Not doing anything about it normally leaves the other party with little choice other than to commence proceedings, which are going to be expensive for all parties.

In a way, visits to your lawyer can be seen as similar to check-ups with your dentist. Regular check-ups with your dentist will ensure that any cavity or decay is detected early, ensuring that such problems are tackled early and preventing the need for root canal or tooth extraction. Similarly, an appointment to see your lawyer about a major transaction can help ensure that your interests are properly protected and serious legal problems later on are avoided.

Shop around/Don’t go with any inner-city law firm

Different lawyers charge different amounts for the same work. You may be quite surprised at the differences.

The best way to shop around is to look on the internet. That way you don’t feel obligated by having a lawyer see you and spend a while talking with you, or have to pay them for an initial consult when in the end you decide you would prefer another firm. By looking at a firm’s website you can ascertain where they are, what areas they practice in and get a general impression before you email them. When you email them, tell them very briefly what your matter is about in 4-6 sentences and ask them how much their fees will be. You should get a response within two business days if the firm is willing and able to take on your matter.

In terms of fee structure, the best approach is to agree on a fixed fee if that is a practicable option. Ask your solicitor to give you a fixed fee for your matter. That way, you know how much you will have to pay in advance and there are no nasty surprises later on. Also, your solicitors will not have the incentive of spending more time on your matter than necessary so that they can charge you more.

Of course, sometimes it is not possible for a fixed fee to be arranged. A typical example of when a fixed fee is unlikely to be possible is in court proceedings. Whether it’s civil litigation, family proceedings or a criminal case, it is impossible to precisely predict in advance how many court dates, how much preparation and generally how much work your solicitor will have to carry out. In such matters you may have to settle for an hourly rate, but you should still ensure that it’s competitive by getting a few different quotes.

Law firms in the CBD and other expensive areas pay enormous amounts of rent for their office spaces. Naturally, these costs are passed onto you, the consumer. In order to pay their massive overheads, inner-city firms charge very high hourly rates and most put lots of pressure in their ‘fee earners’ to generate as many ‘billable hours’ as possible every day.  In such firms, the performance evaluation of their solicitors (or ‘fee earners’) is mostly based on the amount of money they generate for the firm. The focus in such firms is essentially on extracting as much money from you as possible.

Of course, there are times when it may be better to go with an inner-city law firm, such as if your claim is worth millions of dollars, or due to the complexity of your legal matter you require an accredited specialist (although there are accredited specialists in the suburbs as well!). Otherwise, it is generally advisable to see a suburban solicitor who pays far less rent. If your matter requires specialist advice or is going to court, your solicitor can always engage a barrister on your behalf to provide such services which shouldn’t come to too much.

Settle the case

Litigation is essentially a zero-sum game, as there can only be one winner, and the person who wins does so at the expense of another party. In fact, describing litigation as a zero sum game is actually unduly optimistic: both parties normally pay highly expensive legal fees, and only in exceptional cases do successful parties get costs orders which indemnify them for the massive amounts of legal fees they have paid.

In civil litigation, the normal course is that costs are awarded to the successful party on the court scale, which is usually substantially less than what your lawyers charged you. So even if you do win in court, the legal costs you recover will normally be a lot less than the amount that you paid in legal fees. Costs are usually not awarded in family matters in the federal courts or in estate matters.

On the other hand, if you lose you will have to pay your lawyer’s fees, the judgment sum and the other side’s costs. Unless you are quite wealthy, this is a triple whammy you probably can’t afford.

Furthermore, the outcome of litigation is normally uncertain, as it concerns disputes of fact or disputes over the meaning, effect or application of relevant laws. Litigation is also often unpredictable, as there are issues which often come up by surprise, and sometimes the judge just takes a particular view of the case and decides accordingly. You can never be completely sure of a good outcome, even if you have an apparently strong case.

As a result, it is generally advisable to try to settle the case before going to court. If you want to sue somebody, get your lawyer to send a letter of demand first and/or an offer to settle the civil dispute. If you receive a letter of demand, see a lawyer to get advice and then get the lawyer to draft a response. The response should be aimed at preventing the need for court proceedings, either by pointing out why you don’t owe the money demanded or making an offer to settle the dispute for once and for all. Because court proceedings are so expensive, you should try and avoid them whenever possible.

If you are a party to a court proceeding, consider the possibility of settling your case. There are three major advantages to this option:

1)      The uncertainty is eliminated: the outcome you have both agreed upon you will almost certainly get, thereby removing the risk of financial disaster if you lose;

2)      You can save on legal fees: as the matter will not have to proceed to final hearing; and

3)      The matter is over far more quickly: so that you avoid unnecessary stress and can move on with your life.

A negotiated outcome could be a win for you and a win for your opponent, but in order for it to work you would have to put an offer that they may accept. Remember that the other party to the case will only accept if they see the outcome as beneficial for them. You should try and see things from the other party’s point of view and ask yourself what you would accept if you were in their shoes. It would be sensible to offer somewhat less than what you would get if you won in court to take into account the risk and expense of a trial.

Spend less time talking to/ emailing your lawyer

Many clients like to spend lots of time chatting to their lawyer on the phone. Some clients do not realise that lawyers are performing work by discussing your case with you or listening to you, and are perfectly entitled to charge for this.

Other clients like to send numerous long and/or repetitive emails to their lawyers. Of course, your lawyer is also entitled to charge for reading each of these emails.

A lawyer’s most valuable asset is his or her time. Minutes spent by a lawyer talking to you or reading your long emails are minutes that can be spent working on another client’s matter. By taking up a lawyer’s time discussing your case or sending many unnecessary emails, you are using up his or most valuable resource. If you want to save on your legal bills you should limit the time spent chatting with or emailing your lawyer. Wherever possible, make it short and sweet!

If you need to vent, talking to your partner or a friend is a much cheaper option. Remember that your lawyer can only help you with the legal side of your problem.

Do what your solicitors tells you the first time

Many clients fail to do what their solicitor asks them to do the first time. This leads to the solicitor having to chase up the client by writing letters and emails as well as calling the client. Sometimes the solicitor will also recieve correspondence and calls from third parties in relation to the delay occasioned by the client. All of this leads to additional and unnecessary costs being incurred on the client’s file.

Don’t change lawyers

Every time you change lawyers, your new lawyers will have to spend time reading the file in order to become familiar with its contents and the issues, and to know what steps need to be taken. Naturally, you will be charged for this time.

As a result, it is generally adviseable to stick with the same lawyers from start to finish.

Don’t change your instructions unnecessarily

Your instructions are what you as a client tell your solicitor to do for you. Your lawyer has to carry out your instructions unless you ask him or her to do something which is illegal or unethical.

Your instructions will sometimes have to change as the case evolves. Changing your instructions can often be desirable, and is sometimes necessary (for example, if an event has made what you are seeking impossible to obtain). However, changing instructions can result in more legal work having to be undertaken, and therefore more fees. As a result, you should carefully consider your options before you give your lawyer instructions and not change those instructions without a very good reason. Changing instructions without a good reason can result in your legal bills being needlessly higher than they would otherwise be.

Conclusion

As this article demonstrates, there are a number of ways that legal consumers can save on legal bills. The important principle to remember is that a lawyer’s most valuable resource is his or her time, and the more time you consume the more you will be charged. Essentially, saving your solicitor time saves you money.

When the Solicitor-Barrister relationship turns sour

Posted on Categories Legal profession, Professional disciplineLeave a comment on When the Solicitor-Barrister relationship turns sour

There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.

When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.

However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.

Ros Janes

On 16 October 2013 Milton solicitor Ros Janes was found guilty of professional misconduct for misleading the District Court. The District Court proceeding was a body corporate matter, and Janes instructed a barrister named Shannon Moody before terminating her retainer. Janes then filed an affidavit and appeared before the District Court, blaming Moody for the failure to comply with the Court’s directions to file an Outline of Argument. The Court referred the matter to the Queensland Bar Association so that Moody could respond, leading to the Legal Services Commissioner commencing disciplinary proceedings against Ms Janes.

The QCAT hearing largely turned on the communications between Ms Janes and Ms Moody in the lead up to Janes’ appearance in the District Court, and involved extensive cross-examination of both women, with the tribunal finding Moody to be the more impressive witness. Other factors that lead to the court preferring the evidence of Moody were that:

– Janes’ typed notes of conversations with Moody in many respects did not accurately reflect an allegedly contemporaneous handwritten note she made of a conversation with Moody

– Janes’ admission that Moody had raised an extension of time with her on four occasions

– Janes’ claim that at the time she did not know the submissions prepared by Moody were not an Outline of Argument as directed by the Court

– an untruth in her affidavit concerning when Moody advised her the Outline could be prepared by

– Janes’ denial that she had requested Moody to withhold preparation of the outline when she had requested an extension from the Registry for filing of the Outline on the ground that the parties could resolve the proceeding

– her claim that she had asked Moody to prepare the Outline urgently but then had not contacted Moody for another two weeks

– Janes effectively conceding that paragraphs 28 and 29 of her affidavit were incorrect.

Janes was publicly reprimanded and ordered to pay a fine of $10,000 and costs fixed at $2,000.

Karen King

Meanwhile, Gold Coast solicitor Karen King was found guilty of professional misconduct in November 2013 after the Tribunal found that she breached an undertaking she made in 2006 to a barrister to pay his outstanding fees in full within an agreed time. The barrister was only ever paid $5,000 of the approximately $29,000 owed to him. Ms King denied the undertaking was given with her authority, however the Tribunal preferred the evidence of the solicitor in her employ who emailed the undertaking to the barrister.

Ms King was also found guilty of other charges, including withdrawing trust monies without authorisation, failing to provide an itemised bill and failing to comply with a written notice from the Commissioner. However, the Tribunal accepted the Commissioner’s submission that the failure to honour the undertaking to the barrister was the most serious of the charges.

The Tribunal ordered that Ms King should be struck off as she was not a proper person to remain on the roll. A significant factor which contributed to this conclusion was her lack of insight into her offending behaviour, as demonstrated by her various attempts to mislead the Commissioner and the Queensland Law Society, including the fabrication of evidence to support her position. In this way, the Karen King case bears a disturbing similarity to the case of Paul Anthony Dempsey, who in 2009 was struck off, partly for knowingly giving false evidence to the then Legal Practice Tribunal in an attempt to defend himself against the charges he faced.

Conclusion

Both of these recent cases show that solicitors should act honestly and ethically at all times in their professional dealings with barristers. In particular, solicitors should not blame barristers they instruct when things go wrong without good cause. And of course, when solicitors provide undertakings to barristers they must honour them.

Another important aspect to these cases is that when a lawyer is investigated, he or she would be best advised to be honest and frank in responding to any allegation of wrongdoing, including making full admissions where appropriate rather than attempting to conceal such lapses. Legal practitioners who admit their wrongdoing and express remorse are treated more leniently than lawyers who compound their predicament with implausible explanations for the evidence against them. The way Ros Janes and Karen King both responded to investigations and proceedings against them contributed to the substantial penalties imposed on them.

Perhaps solicitors would be well served to read Dr Tom Altobelli’s Working With Barristers publication.

The perils of social media for twits

Posted on Categories JudiciaryLeave a comment on The perils of social media for twits

The laws of defamation apply to social media as much as they apply anywhere else:

A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial.

Former Orange High School student Andrew Farley, 20, made “false allegations” about music teacher Christine Mickle on Twitter and Facebook in 2012, a year after he had left school.

Mr Farley, who had never been taught by Ms Mickle, seemed to bear a grudge against the 58-year-old based on a belief that she had something to do with his father, also a teacher, leaving the school, District Court Judge Michael Elkaim said in his ruling.

“There is absolutely no evidence to substantiate that belief,” Judge Elkaim said. “The effect of the publication on the plaintiff was devastating.’’

Anyone who frequents Twitter (or other social media) on a regular basis would know that false and defamatory assertions are often made about people. In some ways it’s a surprise that it’s taken this long for such a case to result in an award of damages in Australia.

Another twitter defamation case that went to court is that of Liberal pollsters Mark Textor and Lyndon Crosby against former Labor MP Mike Kelly for a tweet Kelly published about push polling.

When people go on social media to rant, they would be well advised to be careful that they do not open themselves to liability for defamation. A right to rant is not the same as a right to defame.

Why are lawyers so expensive?

Posted on Categories Legal profession, Professional fees, Queensland Law SocietyLeave a comment on Why are lawyers so expensive?

Most complaints about lawyers concern how high their legal fees are. The professional fees charged by lawyers are notorious. When many clients earn an average of $20-40 per hour, it can seem unfair that your lawyers charge you hundreds of dollars per hour. However, as this article will demonstrate, there are reasons why legal fees are so high.

Operating costs

The main reason legal fees are so high is because it costs a lot of money to lawfully run and operate a law firm. Law firms incur all of the costs normally associated with operating an office (rent, wages, photocopy leases, furniture, power, stationary, paper, ink, tax etc). Inner city law firms pay massive amounts of rent and of course this cost gets passed onto you. Additionally, there are extra costs that law firms have to pay, mainly because the legal profession is so highly regulated.

In addition to normal business costs, lawyers also incur the following costs:

Professional indemnity insurance – this is liability insurance that all law practices are required to have. The costs of this depends on the size of the practice, but it is invariably expensive. This insurance is ultimately to the clients’ benefit, as it ensures that in cases where lawyers make mistakes, clients can be compensated for this.

Practicing certificate fees – lawyers also must pay thousands of dollars every year to the Law Society in order to renew their practicing certificates. The cost of a practicing certificate depends on the type of certificate which is granted. Included in the cost of a practicing certificate is a fidelity fund contribution fee of several hundred dollars in order to reimburse clients who are defrauded of money by a small number of unscrupulous members of the profession.

Continuing Professional Development – every year, lawyers are required to complete 10 points CPD as part of their continuing legal education. This typically costs thousands of dollars per practitioner as the seminars/courses that must be attended or undertaken are rather dear. Lawyers can be severely disciplined for not complying with the above requirements. Because a solicitor’s time is worth a lot of money, the monies spent on CPD are arguably small compared to the time expended on CPD which could be used on chargeable activities.

Trust account expenses – most firms hold at least one trust account, which is a bank account where monies which do not belong to the firm are deposited. Examples of trust monies include funds used for paying house deposits or outlays, and monies paid upfront by clients or third party payers on account of the firm’s professional fees. Firms have to pay for annual external audits of their trust accounts, which usually cost a minimum of $1,500.  Firms also have to deposit 2/3 of the lowest balance held in their general trust account of the previous year into a separate account. In addition, firms can be audited by the Queensland Law Society, with the costs of such audit being passed onto them.  And of course, banks impose monthly account keeping and other fees on solicitors’ trust accounts.  Finally, the costs of keeping and maintaining records, including trust accounting software and the time spent by members of the firm also add up.

 

As a result, the financial costs of practicing law are enormous. There are however other reasons why legal fees are high.

Demanding occupation

Being a lawyer is one of the most demanding occupations. Lawyers have to negotiate competing demands placed on them by their clients, the courts, their employers, disciplinary bodies and their families. Some clients are difficult or have unrealistic expectations, and this ensures that they walk away unhappy with their lawyer, even when their lawyer has done an OK job.

The law is a competitive, adversarial and aggressive environment. Lawyers typically are required to work long hours, including sometimes on weekends. The consequences of mistakes and failures can be severe, including embarrassment, loss of reputation, being sued and even being disciplined.

As a result of these pressures, lawyers are one of the occupations whose members most prone to suffering depression.

For these reasons it is unsurprising that lawyers expect to be adequately compensated for the work they do.

Becoming a lawyer

The process of becoming a lawyer is a long and expensive one. The reality is that lawyers become qualified and eligible for practice at enormous personal and financial cost.

Lawyers have typically gone to university for many years in order to obtain a law degree and have then undertaken a diploma in legal practice in order to become a solicitor, or undergone training and mentoring to become a barrister. Before being able to practice law, they must be admitted to the legal profession. This is an expensive and time-consuming process which involves paying a large fee to the Legal Admissions Board, and filing an application and affidavit in the Supreme Court.

Even when they are admitted to the profession and commence legal practice, it takes many more years before a lawyer becomes sufficiently experienced and knowledgeable to practice without any supervision.

Conclusion

Put simply, lawyers are so expensive because the financial and other costs of practicing law are enormous. Many of these costs are due to the onerous regulation of the profession. The costs of legal practice inevitably must be passed onto the legal consumer, ie the client.

The good news is that clients can minimise their legal fees, as this article explains.

Identity politics, political correctness and section 18C of the Racial Discrimination Act

Posted on Categories Human rights, Judiciary, LibertyLeave a comment on Identity politics, political correctness and section 18C of the Racial Discrimination Act

On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim brought by Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth) as a result of posts published on Facebook by students at the Queensland University of Technology that complained of being kicked out of an ‘Indigenous only’ computer lab. This ends a 3 year long legal saga and ordeal for the students concerned.

 

The facts

On 28 May 2013, some students were kicked out of a computer lab reserved for Aboriginal students.

QUT student Alex Wood posted the following comment on Facebook:

Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?

Another student named Jackson Powell joined in with this comment:

I wonder where the white supremacist computer lab is

A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.

The law

Section 18C(1) of the Racial Discrimination Act 1975 (Cth) provides as follows:

Offensive behaviour because of race, colour or national or ethnic origin

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

People sued under section 18C typically seek to plead the defence under section 18D:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

A famous case of when section 18C resulted in a successful suit was in the case of Eatock v Bolt [2011] FCA 1103 (28 September 2011). In that case a conservative columnist named Andrew Bolt was found to have contravened s18C by writing mocking columns concerning a handful of individuals of part Aboriginal descent who identified as Indigenous. Bolt had suggested that these individuals had chosen to identify as Aboriginal in order to qualify for prizes and obtain career clout.

Judge Jarrett’s decision

Judge Jarrett found that the abovementioned comments by Wood and Powell were not reasonably likely to offend, insult or humiliate. Wood saying that he had been kicked out of a computer lab for not being Indigenous was a statement of fact. Powell’s comment asking about a computer lab for white supremacists was a poor attempt at humour and nothing more. Judge Jarrett accepted that Thwaites was not responsible for the Facebook post which contained the word ‘nigger’.

For these reasons the claim was dismissed.

Analysis

This case arose from comments made on social media by students expressing understandable displeasure at having been thrown out of a computer room on the basis of their race. It is astounding that the Facebook comments in question resulted in a three year legal journey, including conciliation at the Human Rights Commission and proceedings in the Federal Circuit Court of Australia. Far more offensive things are said and done every day which do not result in any legal processes, and few would suggest that they should.

However, it is wrong to suggest that Ms Prior’s claim was vexatious. Although Judge Jarrett found in favour of the students, Prior still did have an arguable case. The comments in question could arguably have been likely to offend, and did in fact obviously upset Prior. For this reason, the case highlights and demonstrates the need to repeal or amend section 18C in order to prevent similar claims being brought in future.

The suggestion that the law worked well and justly by dismissing the claim ignores the fact that the students have endured enormous stress, inconvenience and reputational damage as a result of this case. They would have also incurred massive legal bills if Tony Morris QC had not agreed to act pro bono. The students must be considered victims of the case and a law which allows such a case to be brought to court at the very least needs to be reformed for this reason alone.

Identity politics and political correctness 

An interesting and yet unfortunate aspect of the case is the fact that Ms Prior’s emotional reaction to the posts was a grossly disproportionate response. Perhaps this is not surprising given the advent of identity politics and political correctness in recent decades.

Identity politics, a child of cultural Maxism, is underpinned by a worldview which divides people into groups of oppressors and the oppressed, rather than as individuals who each have their own unique experiences. Justice involves granting special rights to members of oppressed groups in order to compensate for past wrongs committed against members of their group. According to this viewpoint, Indigenous disadvantage today is entirely the direct result of historical wrongs which have been committed against many Indigenous persons in the past, and to suggest otherwise is to be guilty of racism. Perhaps this is the real reason why Bill Leak’s controversial cartoon about broken homes in remote Indigenous communities so upset the politically correct. Principles of personal responsibility are eschewed because any wrongs committed by the oppressed are attributed to oppressors, to the long term detriment of such individuals.

Political correctness is the ideological sibling of identity politics. Political correctness holds that we must not say or do things which might upset members of oppressed groups. It infantalises by treating members of certain groups as particularly sensitive beings in need of protection from hurtful comments, and provides moral validation and encouragement to those who take offence, in doing so promoting feelings of grievance. Section 18C itself is the legal promulgation of political correctness in Australia. One politically correct former academic has even described attempts to reform section 18C as being “not about free speech, but the freedom of white men to hand out racial abuse”.

Cindy Prior had clearly benefited from identity politics. We know that her Aboriginality obviously helped her obtain a role as an administrative officer in QUT’s Oodgeroo Unit on what may well be more favourable pay and conditions than a position she could have obtained in the private sector. She would have felt that asking non-Indigenous students to leave a computer lab reserved for Indigenous students was only just and fair. The result of identity politics and political correctness was a person of unusual psychological fragility.

The psychological report of Dr Simone Shaw revealed that Prior unlikely to attribute personal responsibility to events that occur in her life, as well as the following:

Ms Prior presents with strong convictions in relation to fairness and equity and her sense of injustice, not only in relation to the most recent workplace incident, but this was also evident through her recollections of her involvement in four previous workplace incidents and two historical personal incidents that subsequently caused her significant distress and she reportedly instigated legal involvement on several occasions to resolve those issues. Her core belief of fairness and equity justice has resulted in a sense of injustice in relation to the incident on 28 May, 2013.

Conclusion

The evidence before the Federal Circuit Court suggested that Cindy Prior’s pre-existing psychological frailties, which made her fear a KKK presence at her university as a result of the abovementioned Facebook posts, were the products of the infantilisation of Indigenous peoples caused by identity politics and political correctness. And having been humiliated in the courts and facing a substantial award of costs against her, she is now for a variety of reasons a victim of identity politics and political correctness.

Those supporters of section 18C who are so concerned with the psychological wellbeing of Indigenous individuals should bear in mind the unintended consequences of identity politics and political correctness that underpinned their support for section 18C. As well as promoting political divides and restricting fundamental rights such as free speech, identity politics and political correctness ultimately harm the very people they are intended to assist.

Things to do when you separate from your partner

Posted on Categories Family lawLeave a comment on Things to do when you separate from your partner

Have you just separated? Are you thinking of separating? If so, here is a list of useful things to do as soon as you can.

1. Take Important Things with You

If you are going to leave, then take all your important things with you. Don’t bank on being able to get them later. Lawyers have often dealt with separated parties who take perverse delight in not handing over something their former spouse really, really needs or wants. Sometimes a party is not able to get their child’s medication, their own family heirlooms, the childrens’ sporting equipment, photographs, passports, birth certificates, financial documents – the list goes on. The lesson? If you need it. If you want it. Take it. Now.

2. Tell your Kids Together

Agree with your former partner on what to tell your Children and do it together. You are going to have to learn to co-parent some time. Start now. The kids will have questions. It will be best for the children to learn about their parent’s separation from you together, not get different stories from each of you. Don’t confuse them. Don’t make it worse for them. Find a way to do this one thing for them.

3. Get Mail Redirected

If you’re living under the same roof, or you are the one to leave, get your mail redirected. The reasons for this are to prevent unauthorised access of your mail and to ensure that important mail does not get withheld from you. Many a lawyer has had clients say to them, no I’ll be right, he/she won’t do that. Then their former spouse does, and the client is surprised.

Once you’re separated, your former spouse wants to see into all your private stuff. They will open mail, read it, keep it and not care about either when, or if, it eventually gets to you. This often happens even if you don’t think they will do that. Don’t take the chance. Hurt people seem to love hurting the other person too.

4. Change your Passwords

For the same reasons, change all of your passwords. Even if you don’t think your husband/wife/partner knows your password. You’d be surprised how many sneakily do. You don’t want them being able to access your email, your banking etc. Sometimes an upset spouse won’t stop at reading or sticky beaking. The scorned wife of one client once sent an email to everyone in his address book (friends and business colleagues) telling them about the numerous extra marital affairs he had been having, as well as some ‘outing’ him about some nasty habits he would have preferred to keep private.

5. Get a New Bank Account

If you don’t want your spouse to access the wages that get paid into your joint bank account (or a bank account they have access to) then open a new bank account.

6. Protect your Finances

Take steps to protect funds in joint bank accounts and make sure that any credit cards or lines of credit can’t be ‘maxed out’. It is extremely common for a spouse to empty bank accounts or max out credit cards and then refuse to pay the funds back, even if it leaves the other person in the lurch or without any money.

7. Make a New Will

Make a new Will. Separation does not invalidate your old Will, only Divorce does. Making a new Will after you have separated has some complexities to it. Make sure you use a lawyer to do it properly.

8. Update Superannuation Beneficiaries

Contact all of your Superannuation providers and nominate a new beneficiary if you don’t want your spouse to receive your Superannuation and Life Insurance if you pass away.

Employee caught stealing alcohol ‘unfairly dismissed’

Posted on Categories Fair Work Commission, Industrial relations, Unfair dismissalLeave a comment on Employee caught stealing alcohol ‘unfairly dismissed’
The Fair Work Commission (FWC) is known for sometimes making unfair dismissal decisions which arguably are counter-intuitive and/or contrary to community standards and expectations. The following recent case, in which a Qantas employee was caught stealing and later lied about the stealing, is an excellent example.

What happened

On 14 February 2016, nine Qantas crew members were taken to a room and searched. One of the crew members named David Dawson was found to have 1 can and 1 bottle of beer in his jacket, a 50ml bottle of gin in his bag and two 50ml bottles of vodka in his trouser pockets.

In his response to the allegation that he had attempted to steal the alcoholic beverages, Dawson initially denied the allegation claiming that they were inadvertently pocketed by him as a result of serving passengers.

Fair Work Commission’s decision

 

Although Deputy President Lawrence found that there was a valid reason for the dismissal because the stealing of the alcohol was contrary to Qantas policy, the dismissal of Dawson was held to be unfair because of the following personal circumstances and circumstances of the misconduct:

 

His 28 years of unblemished service for Qantas as a long-haul flight attendant.

The small value of the items stolen.

The Applicant’s age of 50 meant it would be difficult to get another job, certainly as a flight attendant.

Although he gave an incorrect explanation, he did correct it.

He had a number of medical and family issues prior to the incident.

Given these factors, Deputy President Lawrence held that a penalty other than dismissal would have been appropriate.

Assessment of compensation

Another controversial aspect of the decision was the way in which Deputy President Lawrence arrived at awarding Dawson the maximum amount of compensation allowed under section 392(5) of the Fair Work Act 2009 (Cth):

The Applicant earned $67,462 per annum. I am satisfied that he would have remained a flight attendant for the rest of his working life which could have been 15 or so years. He could have earned $1,011,930…

The Applicant has not earned income since the dismissal, but he has not sought employment…

It is appropriate to adjust the compensation to take account of the fact that I have found that there is a valid reason for the dismissal. The compensation will be reduced to $500,000 on this ground…

I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal..

The high income threshold component is $69,450…

The compensation needs to be reduced to the salary cap… Accordingly, I will order the Respondent to pay to the Applicant an amount of $33,731 which is 26 weeks of the Applicant’s earnings.

As far as we are aware, there is no line of authority which says that compensation in unfair dismissal cases should be assessed at the full salary of the dismissed employee until retirement, subject to the statutory limit imposed by section 392(5) of the Fair Work Act if he is deemed to be unlikely to find employment again.

Furthermore, such a method of calculating compensation is highly dubious, for a number of reasons.

Firstly, there is nothing in the Fair Work Act which states that FWC must fully compensate an unfairly dismissed employee for his entire anticipated or possible future loss, subject to the cap under section 392(5) of the Act.

Secondly, even at common law, which does attempt to fully compensate a person for their losses, discounts are made for the possibility of a plaintiff finding work afterwards, as well as for vicissitudes. Deputy President Lawrence made no such discounts.

Thirdly, the notion that an employee who has been dismissed after stealing and then lying to his employer would somehow deserve $500,000 is manifestly ridiculous.

Finally, although Deputy President Lawrence held that “It is appropriate to adjust the compensation to take account of the fact that I have found that there is a valid reason for the dismissal”, because the discount Deputy President Lawrence imposed was applied to Dawson’s full salary until retirement beforeapplying the cap under section 392(5) of the Act, the result is that the same amount of compensation was awarded, notwithstanding the employee’s grave misconduct.

Conclusion

This case highlights the fact that FWC draws a distinction between there being a valid reason to dismiss an employee and their dismissal being fair in the eyes of the FWC member who hears the case. Furthermore, this case shows that almost no misconduct by an employee is guaranteed to ensure that they will be found to have been fairly dismissed by FWC. Stealing from an employer amounts to serious misconduct: not only is it a criminal offence against the employer, but it also results in a breakdown of trust between the employer and the employee.

Deputy President Lawrence’s decision almost condones employees stealing from their employers. Qantas employees aware of this case will probably rightly conclude that even if they are dismissed for stealing there is a good chance they will subsequently be awarded generous compensation by the FWC if they apply for an unfair dismissal remedy.

Employers considering dismissing an employee need to be aware of the pro-employee bias in the FWC, which has resulted from the vast majority of FWC Members being former trade union officials who have never run a business in their lives. In this case, Deputy President Lawrence was a former Secretary of the Australian Council for Trade Unions. Even when an employer has a valid reason for dismissal arising from serious misconduct and then follows the procedural requirements of a fair dismissal (as Qantas did in this case), there is every chance that FWC will nevertheless still find that the dismissal was unfair.

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