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.
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…
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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.
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