Litigation heavy

by Paul Cutler | May 29, 2024 | Uncategorized

Thanks to a note in Lawyer’s Weekly, I recently came across the Fair Work Commission decision in Dubow v East Coat Law [2024] FWC 1140. Deputy President Saunders commenced his decision with: “Ms  Yolande  Dubow  lives  alone  in  Dunedoo  with  about  a  hundred  farm  yard animals and five cats. She was admitted as a solicitor in New South Wales on 20 December 1984. For reasons I will shortly explain, Ms Dubow’s personal life has been “litigation heavy” for many months“.

The Port Macquarie Dispute

In September 2023, Ms Dubow who had been out of the workforce for 10 years, was an undischarged bankrupt and was contesting two criminal charges against her (which was known to the Law Society) commenced work at a Port Macquarie firm. In mid January 2024, she experienced a problem with her rental accomodation and the firm offered her two nights accomodation in the office. However, this was not an ongoing arrangement and she resigned when a senior solicitor told her she could no longer continue to sleep and bathe in the firm’s offices.

Despite that introduction, that is not what this post is about. Bells were ringing that I had heard of Ms Dubow in the context of some previous disputes and a litigation heavy personal life extended back in time for a lot longer than recent months.

The Court Dispute

In 1998, she was employed as a research officer at the Supreme Court. By March 2003 she alleged she had developed an asthmatic condition because of dust at work. She was then (in April 2003) transferred to the Probate Division [wouldn’t that be dustier?] as a Deputy Registrar, where she came into conflict with the Registrar and Manager of Court Services. In September 2003 the Court sought to transfer her to another vacant position commensurate with her salary, skills and expertise. This led to a constructive dismissal application in the Industrial Commission (see Dubow v AG Department [2004] NSWIRComm 84).

She claimed that she was threatened with dismissal for “having a pink dress, speaking to the media and joking with a colleague which joke he did not object to“. She was also apparently “….berated for wearing leopard print trousers. [and her] Customer service initiatives were derided.” (see [6]).

Interestingly, there was also reference to Ms Dubow’s speaking to the media and her employment with the Court in the 22 April 2004 edition of Justinian:  “A deputy register of the NSW Supreme Court has filed for unfair dismissal after she was sacked allegedly for infiltrating a hidden camera into the registrars’ room. The footage was then given to Channel Seven’s Today Tonight for an exposé on how the courts allow the banks to treat defaulting mortgagors with undue harshness. Yolande Dubow is the former deputy registrar at the heart of the storm. Previously she was the researcher for the President of the Court of Appeal.”

I haven’t yet located that hidden camera case, but I have been reminded of disputes with an Aboriginal Legal Service and also a notable stoush with Fitness First. Litigation heavy is an apt description of several decades of her personal life. Some people just don’t work and play well with others.

Stay tuned for other blogworthy stories…

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The Anniversary

by Paul Cutler | Apr 30, 2024 | Uncategorized

On 17 May 2024, it will be the 200th anniversary of the establishment of the Supreme Court of NSW. There will undoubtedly be various formalities and events to mark the occasion.

Some history

The backstory to the establishment of the Court is interesting (and takes us back to that “Legal Foundations” course that we have all forgotten about). In 1819 John Bigge (an English Judge and Royal Commissioner) was sent to prepare a report on the state of the colony. Up until that time, the Governor had virtually unlimited powers. There was growing concern about the lack of a superior court and the lack of a responsible government in the growing colony. After considering the “Bigge Report” the Parliament of Westminster passed the New South Wales Act 1823 (4 Geo. 4. c. 96). That Act established the Legislative Council in NSW as well as the Supreme Court.

Sir Francis Forbes (formerly the Chief Justice of Newfoundland) was appointed as the first Chief Justice of the Supreme Court of NSW on 17 May 1824. 

Opening of law term address

The rest of this blogpost has been inspired by the current Chief Justice’s (Andrew Bell) opening of law term address (which you can read in its entirety on the Supreme Court website).

A few things from that speech that made me stop and think:

In 1824, Napoleon Bonaparte had only been dead for 3 years and the architects of modern liberalism and communism, John Stuart Mill and Karl Marx, were still boys, as were Charles Darwin and Charles Dickens. Beethoven’s ninth symphony was performed in Vienna for the first time only 10 days prior to the proclamation of the Third Charter of Justice in New South Wales;
it is salutary to recall (or indeed discover) that, later that same year (1824), Governor Brisbane declared martial law against the Wiradjuri people of what we now know as Bathurst and its surrounds; 
it was not until the Women’s Legal Status Act of 1918 that females were legally permitted to practice law, let alone take up judicial office; and
Jane Mathews was appointed as the first female justice of the Supreme Court of New South Wales in 1987. The second female judge of the Court….Carolyn Simpson AO…retire[d] from the Court in March of this year, just shy of its 200th anniversary. That the second-ever female judge appointed to the Court is retiring on the cusp of its 200th anniversary speaks for itself.

Happy anniversary.

Creative commons acknowledgment for the photograph.

The Caravan

by Paul Cutler | Apr 3, 2024 | Uncategorized

While listening to news radio this week I heard about a proposal to change the law in relation to living in a caravan on your own land. Living in caravans (or anything for that matter) is, of course, topical because of the housing crisis.

Caravans – the current law

We all know that we need development consent to erect any building on land. A building is defined in the Environmental Planning & Assessment Act 1979 (“the EP&A Act”). A building: “includes part of a building and any structure or part of a structure, but does not include: (a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure”.

Also, regulation 77(b) of Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 makes it clear that: Council approval is not required for: (b) “the installation of not more than one caravan or campervan on land occupied by the owner of the caravan or campervan in connection with that owner’s dwelling-house, so long as it is used for habitation only by the owner or by members of the owner’s household and is maintained in a safe and healthy condition”.

Caravan is a defined term which means “a moveable dwelling that is designed so as to be capable of being registered (within the meaning of the Road Transport Act 2013) as a trailer, but does not include a camper trailer“.

Mr Findlay’s Caravan

Mr Findlay was living a peaceful existence in his caravan on his property at Bexley. That all came to an end when Rockdale Council started proceedings against him and sought declarations that he had carried out development without consent. Why? Well, although he was living in his caravan on his land, it turns out that the caravan (with annex) was on top of a shipping container that was also on his land. The case (Rockdale City Council v Findlay [2004] NSWLEC 592) pre-dates regulation 77 referred to above and the argument was all about whether the caravan in its current mezzanine position was still a “moveable dwelling”. It wasn’t.  To add insult to injury, there is also authority for the proposition that the container was itself, a structure which required consent (see Wyong Shire Council v Cohen & Anor [2004] NSWLEC 171).

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Declared Vexatious #2

by Paul Cutler | Feb 28, 2024 | Uncategorized

There have been some stand out examples of vexatious litigants over the years. You may remember Mr Wilson (the trial by jury guy) or Mr Skyring (the currency guy). My interest was recently piqued when I read an article about an ACT solicitor who was recently declared vexatious.

It all started innocently enough, when, after 5 years of supervised practice, the solicitor decided he wanted to go out on his own.  His initial application for an unrestricted practising certificate in August 2008 was declined on the basis that he hadn’t completed the practice management course. It appears he had enrolled in, but didn’t satisfactorily complete the July-August 2008 course. Eventually all the requirements were met and he was granted his unrestricted certificate on 1 July 2009. This was a few months later than he had hoped for. Instead of just getting on with business, he decided to sue the ACT Law Society for the damages incurred by that delay.

Anyway, almost 15 years and 37 (not a typo) sets of proceedings later, he was declared a vexatious litigant by Acting Justice Curtin (see Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12). Apart from the appalling facts, the judgment is a very useful summary of the law in relation to vexatious litigants.

It is also an opportune time to explore some of the highlights from the journey.

The Second Proceeding

It was perhaps a sign of things to come when Gray J (in proceedings #2 which were an appeal against the summary dismissal of proceedings #1) observed:

[5] That general pleading sets the tenor for a series of allegations of causing loss to the Commonwealth, discriminatory marking of the plaintiff’s script, discrimination against the plaintiff’s children and wrongful activities with respect to the ACT Vice Presidential Election, amongst other matters.

[6] The pleadings are in a form which readily lend themselves to a description of proceedings that would tend to prejudice or embarrass the fair trial of whatever cause of action might be the subject of them.  I must say, on my reading of the pleadings, there is certainly no clearly discernible cause of action on which the claim for damages is based.  The drawing of the pleadings in the form that they are presented, in my view, do not reflect at all well on Mr Ezekiel-Hart’s holding of an unrestricted practising certificate.

The Twenty Third Proceeding

Apparently, his drafting skills hadn’t improved by proceedings #23 when Kennett J struck out the plaintiff’s further amended statement of claim and dismissed the proceeding (see Ezekiel-Hart v Council of the Law Society of the ACT (No 3) [2022] ACTSC 300 at [86]). His Honour described the further amended statement of claim as follows:

[22]  The FASC is a daunting document. It contains 239 numbered paragraphs spread over 99 pages, followed by 21 paragraphs purporting to identify the relief sought. Further, those figures give only a hint of its complexity. Paragraph 15 contains 323 sub-paragraphs, purporting to be “particulars” (but not purporting to be exhaustive), which are repeated for the purposes of several of the paragraphs that follow. Paragraph 239 then repeats (to what purpose I am yet to understand) paragraphs 14 to 240, although there is no paragraph 240.

[23]  More significantly, the FASC presents as a document drafted and settled by a person who has at best a tenuous grasp of legal principle and principles of pleading, and who has such strong opinions about the subject matter as to be incapable of any degree of detachment. It is convoluted, repetitive and conclusory. etc etc [ouch!]

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