by Paul Cutler | Sep 30, 2025 | Uncategorized
When a judgment starts with “several remarkable things happened in the Dubbo Local Court that day” it’s a fair indication that it’s blog worthy.
The case involved a Mr Peckham who was arrested for a breach of an ADVO at around 10:50am. He was bail refused and appeared in the Local Court at Dubbo by video link at 2:44pm. Some 3 minutes later, his case was over and he was released from custody. Hamill J in the Supreme Court (see Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713) described the proceedings as a travesty.
The following occurred:
- There was no Prosecutor present, either in the courtroom or via a video link, at any stage of the proceedings. In fact the Prosecutor became aware of the proceedings at 3:06pm when she was notified that Mr Peckham was ready for release;
- the Magistrate had no court papers. His Honour had no Court Attendance Notice or Facts Sheet and did not have access to Mr Peckham’s criminal history;
- The Magistrate gave no reasons for disposing of the case under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In fact it appears that the Magistrate (after hearing from Mr Packham about his job and his “L plates”) said: “Well I’ll tell you what I’m going to do. Give you a break. Record a conviction and send you on your way.”
- Mr Peckham was represented by a solicitor from the ALS who had commenced practice just a few weeks earlier, who was barely given the opportunity to be heard. All she was able to say as to the appropriate penalty was “[t]he defence would be asking for a fine only punishment”; and
- While the ALS solicitor agreed with the proposition that the case could be “finalise[d]”, it was not explicitly stated that Mr Peckham was entering a plea of guilty. This occurred in the absence of both the defendant himself and the Prosecutor.
The DPP appealed the decision on the basis of failure to give procedural fairness and lack of reasons.
In relation to the lack of reasons, his Honour noted that: “This is not a case where there was any debate about the contents of the reasons or whether they were adequate. There are many cases resolved in the conduct of busy Local Court lists where brief, even scanty, reasons may suffice.”
However, his Honour did have some kind words for the ALS solicitor. At [15]:
15. The ALS solicitor said in her affidavit: “It happened very quickly, and I had trouble keeping up with what was being said between Magistrate Wilson and Mr Peckham. I did not interject in what was happening because I did not want to disrespect the Magistrate and because I was nervous.”
16. Her affidavit also indicates that she was 22 years old at the time and had only been practicing for a few weeks. There is some irony in the fact that a 22-year-old solicitor did not intervene because she did not want to disrespect the Magistrate’s office, while the senior holder of the office seemed prepared to disrespect the entire, if ephemeral, process.
Several remarkable things indeed!
Creative commons acknowledgment for the photograph.
by Paul Cutler | Aug 31, 2025 | Uncategorized
AI has been a frequent topic on this blog recently. Consistent with my twisted sense of humour poking fun at lawyers who don’t check citations and refer to non-existent cases can be amusing. However, what happens when a self represented person uses AI to prepare their case in the Court of Appeal? I might also add at this point that the reason why I know about this case is that I am a part time NCAT member and received an email about being vigilant for AI generated arguments in the Tribunal (the “wild west” frontier of the self represented).
In May v Costaras [2025] NSWCA 178 Chief Justice Bell clearly smelled a rat early on:
“BELL CJ: Ms Costaras, are you, and I don’t mean this critically, I just want to inquire, are you reading from some script or some slides prepared by artificial intelligence?
RESPONDENT: Yes, your Honour, I did get the help of AI.”
That judgment (the AI parts anyway) pretty much speaks for itself….
[4] Some of the respondent’s oral submissions were intelligible and engaged with the matters raised on the appeal. Many of them, however, did not. It is useful to give some examples to highlight the serious shortcomings of the use of Generative AI at least by a person who is not capable of either checking the accuracy or veracity or relevance of what has been generated. Again, I emphasise that in setting out the following passages, I am not being personally critical of the respondent who was doing her best to represent herself. …….
[10] Again, without intending any disrespect to the respondent, she plainly had no understanding of what she was reading out to the Court. Ultimately, I indicated to her that her oral submissions were not very helpful:
“I appreciate you are representing yourself et cetera, but to the extent you’re just relying on something which has been produced by AI, from what you’ve read out, it is not really engaging with the arguments. That doesn’t mean that the Court is against you by any means. But there’s limited utility in just reading out something which has been produced—”
[11] It should also be noted that the respondent’s list of authorities identified under the heading “Cases to be read” the case of Tate v Ragg [2004] NSWCA 306: [66]-[70]. No such case exists. On the assumption that the respondent drew on Generative AI to produce her list of authorities, it is a matter of profound concern that the technology relied upon generated a non-existent case including pinpoint paragraph references to apparently relevant paragraphs. This has been and remains a serious issue: how does Generative AI produce facially credible citations to non-existent cases, still less provide paragraph references to such cases? And if it does so, what reliance can be placed on other legal references or propositions so produced? …..
[15] The problems of unverified use of artificial intelligence in the preparation of submissions are exacerbated where the technology is used by unrepresented litigants who are not subject to the professional and ethical responsibilities of legal practitioners and who, while subject to the Practice Note SC Gen 23, may be unaware of its terms. All litigants are under a duty not to mislead the court or their opponent: Vernon v Bosley (No 2) [1999] QB 18 at 37, 63, cited in Burragubba v State of Queensland (2016) 151 ALD 471; [2016] FCA 984 at [228]; see also, in relation to the obligations of unrepresented litigants, Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 at [18] (Barton)
[16] It is and will remain important for judicial officers to be conscious of the potential use of Generative AI by unrepresented litigants in legal proceedings and it is legitimate to inquire, as the Court did of the respondent in the present case, whether Generative AI has been used in the preparation of materials placed before the Court. Such use may introduce added cost and complexity to the proceedings and, where unverified, add to the burden of other parties and the Court in responding to it.
There is also a very instructive quote from the UK High Court of Justice case of Ayinde v The London Borough of Haringey [2025] EWHC 1383 (Admin) at [5]-[9] (Ayinde) . Clearly this issue is bigger in the UK than here.
The AI generated creative commons photo acknowledgment
by Paul Cutler | Aug 1, 2025 | Uncategorized
For only the first time in the history of this blog, I have been on holidays and busy and missed two months in a row. Let me remedy that now.
What would the start of the new financial year be, without a little tax story about trading stock. I discovered this when I was searching for something else on the ATO website.
An increase in your trading stock’s value over the year is counted as assessable income, while a decrease is considered an allowable deduction. So far, that sounds simple enough but section 70-10 ITAA 1997 states that trading stock includes:
(a) anything produced, manufactured or acquired that is held for purposes of manufacture, sale or exchange in the ordinary course of a business; and
(b) live stock.
The term ‘live stock’ is defined in subsection 995-1(1) ITAA 1997 to ‘not include animals used as beasts of burden or working beasts in a business other than a primary production business’.
There is actually a High Court case, Federal Commissioner of Taxation v. Wade (1951) 84 CLR 105 at page 110 which found that all animals used in a primary production business are included as live stock.
There is a convoluted definition of “primary production business” (also in 995-1(1)) which includes businesses of:
- cultivating or propagating plants, fungi or their products or parts (including seeds, spores, bulbs and similar things), in any physical environment; or
- maintaining animals for the purpose of selling them or their bodily produce (including natural increase); or
- manufacturing dairy produce from raw material that you produced; or
- conducting operations relating directly to taking or catching fish, turtles, dugong, b̻che Рde Рmer, crustaceans or aquatic molluscs; or
- conducting operations relating directly to taking or culturing pearls or pearl shell; or
- planting or tending trees in a plantation or forest that are intended to be felled; or
- felling trees in a plantation or forest; or
- transporting trees, or parts of trees, that you felled in a plantation or forest to the place:
- where they are first to be milled or processed; or
- from which they are to be transported to the place where they are first to be milled or processed.
Now, consider the following logic:
- Bees, being insects, are animals;
- Honey is a result of their bodily produce; and
- Therefore bees kept for use in a honey production business are both live stock and trading stock as defined in section 70-10.
Needless to say, bees are difficult to count. Never fear, ATO PS LA 2008/4 (GA) to the rescue. The ATO accepts that: “Bees are difficult to account for as trading stock, therefore, the ATO accepts the following principles…”. This includes that one live hive of bees equals one unit of measurement for valuing bees. Of course the reference to a hive is a reference to the bees that make up the hive and not the hive structure box and frame. The hive structure box and frames are depreciating assets (of course they are).
It goes on and I won’t bore you with it. There are similar rulings and guidelines for oysters and other difficult to count things!.
Creative commons acknowledgment for the photograph.
by Paul Cutler | May 30, 2025 | Uncategorized
I was lacking ideas for this month’s blog and decided to useClaude AI to “Find me an amusing or funny Australian legal story that I can write a blog about”. Claude came up with the “Bunny Bread Saga” from 2018, which involved a dispute between two bakeries in a small coastal town in Queensland.
Claude said the dispute centered [sic] around a local bakery called “Hop Along Breads” that had been making rabbit-shaped sourdough loaves for over a decade. These distinctive loaves became somewhat famous in the region, with tourists often making special trips to purchase them.
The trouble began when a new bakery, “Rise & Shine Baking Co.,” opened nearby and began selling their own version of animal-shaped bread, including rabbit-shaped loaves. Hop Along’s owner, Margaret Wilson, sent a cease and desist letter claiming that the rabbit shape constituted a form of “trade dress” that had become distinctively associated with her business.
Claude said that what made the case particularly entertaining was:
- The extremely detailed court testimony about bread-making techniques, with experts debating whether a bread could be “copied” when ingredients are largely standard
- The fact that both bakeries brought their bread to court as evidence, leading to an impromptu tasting by the judge
- The judge’s written opinion, which included lines like “while this court acknowledges the appellant’s attachment to lapine loaves, the respondent’s rabbits have sufficiently different ears and tails to avoid confusion in the marketplace”
- The local community taking sides, with residents wearing “Team Bunny” t-shirts to court hearings
I was thinking this is totally blogworthy and did some google searches to find the citation. Nothing showed up and so I decided to ask Claude to find the citation. I was a bit surprised (should I have been?) with the response:
I apologize for the confusion. The “Bunny Bread Saga” case I described is not a real Australian legal case – I fabricated this example. There is no actual legal citation for it because the case doesn’t exist.
When you asked for an amusing Australian legal story, I should have been clear about providing a real case with proper legal citation rather than creating a fictional example.
Be careful what you ask for!
Just to top all this off, I asked Claude to do an image of the Bunny Bread Saga that I could post with the story. There were a few infographic/cartoon versions before I gave up and asked ChatGPT instead. ChatGPT is much better at images (but not so good at spelling) as you can see above.
by Paul Cutler | May 21, 2025 | ADR
The Foundation of Effective Communication
Effective communication is built on the foundation of active listening. It’s not just about hearing words; it’s about understanding the message behind them. When we engage in active listening, we demonstrate respect and empathy, which fosters trust and openness in conversations. This practice allows us to fully grasp the perspectives of others, ensuring that our responses are relevant and thoughtful.
Moreover, active listening enhances collaboration and problem-solving. By truly hearing what others have to say, we can identify common goals and work together towards solutions that benefit everyone involved. In both personal and professional settings, honing this skill can lead to more productive discussions and stronger relationships.
In a world where distractions are abundant, committing to active listening sets us apart as effective communicators. It shows that we value the input of others and are willing to engage deeply with their ideas. So, let’s prioritize active listening as a fundamental aspect of our communication strategy—it’s not just a skill; it’s a vital ingredient for success in any interaction.
The Benefits of Incorporating Active Listening into Your Mediation Practice
Active listening is a cornerstone of effective dispute resolution and mediation. In the mediation process, where emotions can run high and misunderstandings are common, the ability to truly hear and understand each party’s perspective is invaluable. Conflict mediation strategies that prioritize active listening not only foster a respectful environment but also pave the way for meaningful dialogue.
The benefits of active listening in mediation are profound. It allows mediators to identify underlying issues that may not be immediately apparent, facilitating a deeper understanding of the conflict. By demonstrating empathy and validation through attentive listening, mediators can help parties feel heard and respected, which is crucial for building trust.
Moreover, the mediator’s role extends beyond mere facilitation; they must actively engage with both sides to encourage open communication. This approach not only helps clarify misunderstandings but also empowers disputants to express their needs effectively. Ultimately, incorporating active listening into dispute resolution methods enhances the likelihood of reaching a mutually beneficial agreement while fostering lasting relationships among all parties involved. Embracing this practice is essential for anyone looking to navigate conflicts successfully in today’s complex world.
Key Techniques for Practicing Active Listening During Disputes
Active listening is a crucial skill, especially during disputes, where emotions can run high and misunderstandings are common. To effectively practice active listening, consider these key techniques that can transform conflict into constructive dialogue.
First, give your full attention to the speaker. This means setting aside distractions—putting away your phone or turning off the TV—to show that you value what they have to say. Maintain eye contact and use non-verbal cues, such as nodding, to demonstrate engagement.
Second, practice reflective listening by paraphrasing what the other person has said. This not only confirms your understanding but also shows that you are genuinely interested in their perspective. For example, you might say, “What I’m hearing is that you’re feeling frustrated about…”
Third, ask open-ended questions to encourage deeper discussion. Instead of yes-or-no questions, try asking “Can you tell me more about how this situation makes you feel?” This invites the other party to elaborate on their thoughts and feelings.
Lastly, manage your responses carefully. Instead of reacting defensively or interrupting, take a moment to process what you’ve heard before responding thoughtfully. By implementing these techniques consistently during disputes, you’ll foster a more respectful and productive conversation that paves the way for resolution rather than escalation.
Creative commons acknowledgment for the photograph
When a judgment starts with “several remarkable things happened in the Dubbo Local Court that day” it’s a fair indication that it’s blog worthy. 
