by Paul Cutler | Jul 4, 2024 | ADR
I thought it was fitting to start my Mediator’s Blog with a few thoughts about about being a new lawyer.
Canadian professor Julie Macfarlane’s book “The New Lawyer” is one of the many things I read during my dispute resolution studies at UNSW.
It has made me think about the future of the legal profession and made me think about how I approach litigation generally. It is one of the things which has prompted me to pursue opportunities as a professional mediator.
What is a new lawyer?
We all know that there are high costs, delays, and an emotional toll on clients associated with litigation. These factors are challenging the traditional adversarial model of legal practice and there is a growing emphasis on settlement and conflict resolution. Clients and lawyers are seeking alternative paths to resolving disputes.
This changes the way that lawyers interact with clients. There is a need for lawyers to adapt to a world where practical problem-solving is increasingly valued over lengthy adversarial processes. This new approach requires lawyers to actively seek negotiation opportunities, assess various dispute resolution methods, and collaborate closely with clients to develop strategies that aim for optimal settlements as a viable alternative to trial.
As a result, the new lawyer’s role extends beyond courtroom battles to encompass skills in negotiation, mediation, collaborative practice, and restorative justice. New lawyers need to be problem solvers, strategic thinkers, adept negotiators, and continuously updated on conflict resolution techniques. Macfarlane discusses the concept of conflict resolution advocacy and the evolving role of the new lawyer.
Of course, these ideas challenge traditional notions of legal education and legal practice. These new lawyer “conflict managers” need to be able to skilfully navigate both adversarial and non-adversarial approaches.
Legal education and professional development to adapt and change to equip lawyers with the necessary skills to meet the evolving needs of clients and society. Certainly when I was a law student 40 years ago, legal education primarily focused on rights-based approaches to dispute resolution rather than emphasising effective negotiation skills and the benefits of various consensual dispute resolution methods. I know that things are changing and certainly at postgraduate level there are whole masters’ degrees in dispute resolution.
It’s also my view (probably controversially) that life experience and age bring perspective into how lawyers view the needs of their clients and perceive the opportunities for flexible settlement proposals.
The role of the new lawyer also brings ethical complexities with it.
The new lawyer will need to carefully evaluate settlement options. One of the duties of the new lawyer is to prevent clients from being coerced into settlements that do not align with their best interests. Vulnerable parties will need to be protected in the resolution process. This highlights the need for informed decision-making.
Summary
“The New Lawyer” highlights the changes that settlement and ADR have on the future of the legal profession. Although I have been doing adversarial commercial litigation for decades, I consider myself to be a new lawyer. I bring life experience in both law and in my previous career (as an industrial chemist) to all of my matters. This follows me into my mediation practice and the way that I can facilitate negotiations between disputing parties.
If you want to read the book (and I think all lawyers should) it’s readily available at the usual online sources.
by Paul Cutler | Jun 28, 2024 | Uncategorized
At the end of last month’s post, I alluded to a long running dispute between Ms Dubow and Fitness First. Apparently (according to Nine News she was a founding member of Fitness First and entitled to lifetime fixed fees).
Weight dropping
This all started to unravel in June 2004 when Justinian noted that Ms Dubow had received a letter from Fitness First’s legal counsel which included:
We note that you regularly attend the Body Pump classes at our Bond Street club and that you drop weights to the floor throughout those classes. The dropping of weights to the floor causes:
disturbance and distress to others in the class;
damage to the flooring in the aerobics studio.
Please be advised that we require this behaviour to cease immediately.
You should be aware that we have the right under the terms of our membership agreement to terminate your membership for behaviour which we deem to be inappropriate and we do deem this behaviour as inappropriate.
Should you continue to drop weights to the floor during Body Pump classes, your membership will be terminated.
Further, should any damage be caused to the flooring in the aerobics studio as a result of you dropping weights to the floor, we will hold you responsible for the cost of repairing the damaged flooring.
Litigation and the SCNSW
Why am I not surprised that the matter wasn’t resolved by negotiation and that the membership was eventually terminated? Why am I also not surprised that this resulted in an application to the CTTT (as NCAT was then)? At the conclusion of the CTTT hearing in March 2005, Ms Dubow sought to withdraw her application. Also unsurprisingly Fitness First sought a costs order and Ms Dubow was ordered (in May 2005) to pay 75% of the costs.
Moving forward seven years to the judgment of Garling J in the SCNSW in February 2012, it’s probably fair to observe a degree of exasperation, when his Honour observed at [3]-[4]:
The actual dispute between the parties that was before the CTTT, the details of it and the rights and wrongs of each party have now been lost in time. Since 2005, in a number of courts and in a variety of ways, Ms Dubow and FFA have been engaged in litigation dealing with the costs order made by the CTTT on 5 May 2005.
On 18 November 2011, I embarked upon the hearing of four matters that had been commenced in the Supreme Court of NSW. Two of these were commenced by Ms Dubow, and two by FFA…..
So what happened? If you skip forward to paragraph [155] Ms Dubow’s actions in registering the Cost Certificates, obtaining judgments against FFA in the Local Court and the Supreme Court, and then attempting to enforce those judgments, were contrary to the terms of the stay order made by Hulme J (finally) in February 2008. Not to mention that she had no legitimate basis for seeking the entry of judgment in her favour and the enforcement of those judgments because she had already released her entitlement to those costs.
Creative commons acknowledgement for the photograph.
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…
Creative commons acknowledgment for the photograph.
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.
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).
Creative commons acknowledgment for the photograph
