by | Dec 20, 2024 | Uncategorized
Workplace Christmas parties can cause lots of legal issues. In Collins v Signature Blend Pty Ltd t/as Alira [2015] NSWWCCPD 22 there was an issue about when the employer’s liability for workplace injuries ceased (i.e. when did the party end).
The basic facts were that:
- Mr Collins, was the manager, sole director and employee of Signature Blend Pty Ltd t/as Alira, a restaurant in Sydney;
- On 19 December 2011, he and other members of staff attended a Christmas lunch at a restaurant called the Grasshopper at Temperance (oxymoron?) Lane in Sydney. Lunch started at around midday and there was no issue that Mr Collins was in the course of employment while he was at lunch. Signature Blend paid the cost of lunch;
- While at the restaurant, Mr Collins consumed alcohol and cocaine;
- After the lunch, which finished at about 4.00 pm, Mr Collins and some of the attendees at the lunch returned to his apartment at Darling Point where they consumed further alcohol and cocaine on his balcony;
- There was conflicting evidence about what happened next. However, Mr Collins suffered serious injuries when, at about 5.30 pm, he fell about 24 metres from the eighth floor balcony
- Did Mr Collins: (a) do an “irish jig type movement”, lose his grip and fall over the railing; or (b) did he jump the railing attempting to land on the cement ledge?
- It was put more colourfully by the Arbitrator: on a wet, stormy afternoon, with rain coming over a balcony, causing people to go inside, [Mr Collins] made a conscious decision to fling himself over a balcony more than 25 metres above ground, in a fluid single motion (having been to lunch), with a view to hanging on to a wet, slippery, thin metal railing and landing on a narrow ledge on the other side.
You might think the outcome of this case was obvious (it was), but the challenge to the initial arbitration decision was dealt with quite decisively:
“[Signature Blend] did not induce or encourage [Mr Collins] to engage in the behaviour that resulted in him falling from the balcony, including being intoxicated, under the influence of an illegal drug, and jumping on a wet and slippery balcony.”
It follows that, on any view of how Mr Collins came to fall over the railing, the respondent did not induce or encourage Mr Collins to engage in the activity or activities that brought about his injury and he was not in the course of his employment at the time he fell. For the same reasons, his injury did not arise out of his employment and his claim must fail.
So, there you go!
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by | Nov 28, 2024 | Uncategorized
My curiosity was recently piqued by a 2018 article by Gaegler J called “Truth and justice, and sheep“. It is actually quite a serious article about the inter-relationship of truth and justice. So what have sheep got to do this topic? His Honour uses three sheep stories (he thought about calling them parables) as the basis for his discussion.
The first story is about a prosecution for sheep stealing, colloquially known as ‘sheep-duffing’, tried before a local jury in western Queensland. At the conclusion of the trial, the judge asked the jury the customary question, ‘How do you find the accused?’ The response of the jury, delivered through its foreman, was ‘Not guilty your Honour — provided he gives back the sheep’.
The second story came from an 1887 case in Michigan where a Mr Dunbar alleged that his 34 sheep had become mingled with a larger flock of sheep belonging to a Mr McGill. The trial judge directed the civil jury that the question was whether there was more evidence to show that 34 of the sheep were Dunbars than there was to show that they were not Dunbar’s. The appellate court said that was the wrong question with the correct one being: whether there was sufficient evidence to satisfy the jury that the (34) were Dunbar’s sheep.
The third story was about a partnership dispute between two Greek farmers (who were cousins). One cousin alleged that 227 sheep were a partnership asset and the other denied it. After 19 days of trial, McInerney J delivered a judgment in the following terms:
- On the Plaintiff’s Claim, I am not satisfied to the civil standard of balance of probabilities that the sheep existed. Claim dismissed with costs.
- On the Defendant’s Counterclaim, I am not satisfied to the civil standard of balance of probabilities that the sheep did not exist. Counterclaim dismissed with costs.
His Honour says that these stories show that:
- our concept of justice is reliant on our concept of truth;
- our concept of truth is not absolute but a matter of degree. Truth for us is relative;
- true or untrue is proven or unproven; and
- proven or unproven is ultimately believed or not believed with the requisite degree of intensity.
There is also a very interesting discussion about fact finding and the development of the common law system of justice over the last 8 centuries. We’ve all heard of trial by ordeal but I didn’t know about trial by compurgation (you’ll have to google it or read the paper). Also as a fun fact I was surprised to find out that trial by battle was only abolished by statute in 1819 after the last gauntlet was thrown down the year before.
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by | Sep 30, 2024 | Uncategorized
In August 2013, the applicant was charged with an offence under the Commonwealth Criminal Code of using a carriage service in a manner that reasonable persons would regard as being offensive. The matter was dealt with summarily in the Local Court and she was convicted. She then appealed her conviction in the District Court and the matter ultimately made it to the Court of Appeal (see Morgan v District Court of New South Wales [2017] NSWCA 105 )(see below).
She was clearly not on good terms with the local Byron Bay publican when she wrote the following email (which was the basis for the charge):
Re: Update – Life Ban from Hotel Great Northern, Railway Friendly Bar and “all Mooney Hotels”.
The following information is not a threat, it is an attempt to educate – though I concede that comprehending the lesson requires a greater intelligence than that demonstrated by Hannah and Amber to date. Be grateful that I am the sort of person who always resolves disputes lawfully – others would have arranged for Amber and Hannah to star in a ‘snuff f**k’ movie, put a bullet in Mike’s head, sold [their child] to a brothel in a third world country – leaving Tom and Cath alive to wonder whether or not it is really worth f**king over a person simply because you can. Old Celtic saying – Mooney being an Irish name, I trust the Mooney Clann will comprehend the message: “Never start a War without considering the possibility that, should you loose the War – all men will be killed; all women raped and enslaved; and all children butchered”.
So why did this end up in the Court of Appeal? Her (2 years out of time) application for judicial review of her conviction was successful because she hadn’t consented to the matter being dealt with summarily in the Local Court. This obviously impressed Meagher JA who made the following observation:
[21] The applicant appeared in person, having declined the opportunity to be represented by a solicitor funded by a grant of legal aid. Her stated reason for having done so is that as “a Druid (Celtic Pagan Priest) … being represented by a solicitor in Court is not an option.” According to Strabo, druids were once held in such high regard that they could quell any private or public dispute, including a stand-off between opposing armies: Geographica at 4.4.4. Their jurisdiction was divine and limitless. By contrast, and fortunately for the applicant, the jurisdiction of Australian inferior courts is statutory and limited.
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by | Aug 29, 2024 | Uncategorized
As luck would have it I came across another (not) fair and impartial case in the past few weeks. This time it’s a prejudgment case. I didn’t set out to write related blog posts in pairs, but here we go anyway.
This time, it was in a judge alone criminal trial. Senior Counsel for the accused foreshadowed that he would make an application for a directed verdict of acquittal at the close of the Crown case on the basis that there was no case to answer.The following exchange with the trial judge took place:
Counsel:
Well your Honour there will be an application tomorrow for no case to answer.
Judge:
I see, well that application will be refused. So how long then will the defence case take?
Counsel:
How can your Honour possibly come to that view without having heard one word from either me or Mr Wilkinson?
Judge:
Because I’ve closed the Crown case, and I have just said it.
Counsel:
But you’ve heard not one word of any submission by either of us upon either the law or the fact
Judge:
No, I’m simply telling you the application will be refused. I perceive what’s in the Crown case, I perceive there’s a case to answer.
This case made its way to the High Court (Antoun v The Queen [2006] HCA 2). The sole ground of appeal was that the trial judge had prejudged the matter and conducted himself in such a way that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the question of whether the appellants ought to be convicted.
We know from the judgment of Gleeson CJ that after the exchange set out above that on the following morning the Judge “listened to argument on sufferance, then repeated his decision. As it happens, his decision was right. The submission was without merit. That, however, does not remove the impression created by the course that was followed.”
However, as often happens, it’s Kirby J who nails it:
[27]…. it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates…..
[29]….A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.
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by | Jul 31, 2024 | Uncategorized
It is a cornerstone principle of the administration of justice that Judges are fair and impartial. Thankfully, allegations of bias are not common (and it is rare for them to be proved). However, there are always outliers as the case of Charisteas in the Family Court of WA demonstrates.
Some history
Family law property proceedings were commenced in 2006. There were a litany of applications, hearings, orders and appeals. However, cutting a long story short:
2011
Orders dividing property were made (these were set aside by a Full Court)
August 2016
A two week hearing of the property case was heard
September 2016
the first recusal application (based on things the Judge said during the trial) was made and refused. An appeal was dismissed by the Full Court;
12 February 2018
Walters J delivers his judgment in the property matter
15 February 2018
Walters J retires (3 days after judgment)
12 March 2018
An appeal was lodged (of course it was)
Some (true) gossip
Now this is where it gets interesting. On 8 May 2018, the husband’s solicitor wrote to the Wife’s barrister raising with her that there was “gossip” that she and the judge engaged outside of court in a manner inconsistent with her obligations and those of the judge.
The barrister’s response ultimately led to professional misconduct proceedings Legal Services and Complaints Committee and Anderson [2023] VR 60 which resulted in a reprimand, a fine and a 9 month suspension.
There was a finding that: during the period that Justice Walters was seised of the proceedings and while the respondent was counsel for the applicant wife in the proceedings, the respondent and Justice Walters maintained a close personal relationship characterised by or involving personally close or familiar association in which they: (i) engaged in extensive private SMS and WhatsApp communications, had private telephone calls, met privately, and briefly kissed [!!!!!!].
Relationships – impartial
Although it is almost inevitable that sometimes there will be personal relationships between judges and lawyers, the words of McInerney J in the 1972 case of R v Magistrates’ Court at Lilydale; Ex parte Ciccone remain relevant today:
“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way…. the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
So what happened to …
The barrister’s response led the husband’s solicitors to file an amended appeal including an apprehension of bias ground.
The Full Court dismissed the appeal. Special leave was sought and in October 2021 the High Court found that the Full Court’s reasoning erroneous and the lack of disclosure of the relationship to be “troubling”. They also set aside the property orders made in 2011 and remitted the matter for rehearing.
Just what the parties wanted (back to where they were over a decade ago)! – I haven’t checked on the current progress of the case
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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.
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Workplace Christmas parties can cause lots of legal issues. In Collins v Signature Blend Pty Ltd t/as Alira [2015] NSWWCCPD 22 there was an issue about when the employer’s liability for workplace injuries ceased (i.e. when did the party end).
