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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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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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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by | Jan 31, 2024 | Uncategorized
You may have noticed that for the first time in around 10 years of writing this blog, that there haven’t been any posts for a couple of months. There were lots of things happening late last year, including the winding up of my old chambers and the move to new ones at Queen’s Square. Unfortunately blogging became a lower priority for a short time. However, 2024 is a new year and an opportunity for a fresh start.
However, those circumstances and a recent article I read in The Conversation gave me the idea for this post. You may remember the intricacies of being buried at sea? If that is not adventurous enough for you, perhaps you should consider a “burial” in space or even on the moon? One of the controversies surrounding NASA’s recent failed Peregrine moon (non-) lander was that amongst it’s payload were the ashes of Arthur C Clarke (the scifi writer). This sparked protests from the Navajo people who believe the moon to be sacred and oppose its use as a memorial site. There are numerous other issues to consider:
no-one owns the moon (and no-one has authority to grant burial rights);
there is an Outer Space Treaty which makes space the “province of all mankind”. Of course, the treaty doesn’t deal with what commercial operators can do;
domestic law could make things difficult. Apparently it is the law in Germany that ashes have to be buried in a cemetery; and
in Australia and NZ, there is law which refuses space payloads that are not in their national interest. Hmmmm – ashes?
Notwithstanding all of the above, the US company Celestis offers a number of memorial spaceflight services for you or a loved one. For US$2995 your ashes can be launched to space and returned to earth. For US$12,995 your ashes or DNA could be launched to lunar orbit (or the surface of the moon) or sent into deep space. My personal preference is to carry “the cremated remains or DNA into orbit where it remains until it re-enters the atmosphere, harmlessly vaporizing like a shooting star in final tribute“. This service is from US$4,995 and of course there is an app where you track the progress of the mission.
Welcome to 2024.
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by | Oct 30, 2023 | Uncategorized
Courteous correspondence (or lack of it) has been the subject of posts to this blog several times in the past. This week I think I have found the low point. A solicitor in the NT was fined $770 (7 penalty units) for this letter to a client:
“Do not call me as your call would most certainly not be welcome … you are the most paranoid, pathetic client I have ever encountered … I suggest you get a life as I now understand why the offender in your matter would have felt compelled to slot you. … I otherwise confirm the settlement amount exceeded your expectations … for which you have expressed all the gratitude of a mangy dog with the heart the size of a split pea, with grub in it.”
I have found a number of references to this quote in ethics papers given by judicial officers and legal services commissioners. None of them give a citation and the matter must pre-date 2006. Those papers sadly also often reference the 1937 quote from US novelist Thomas Wolfe: “The more I have to deal with lawyers, the more I feel as if I have been compelled to take a voyage down a sewer in a glass bottom boat”.
Why do people do this? Conduct rule 4.1.2 to be honest and courteous in all dealings (not just correspondence) in the course of legal practice is not that hard to comply with!
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by | Sep 27, 2023 | Uncategorized
Judge Salvatore Vasta’s decision to imprison Mr Stradford (a pseudonym) for contempt of the former Federal Circuit Court in 2018 was promptly reversed by the Full Family Court. The Full Court had described the process to be “so devoid of procedural fairness that to allow the order for imprisonment to stand would be an affront to justice” (see Stradford & Stradford (2019) FLC 93-888).
The damages case
The case has recently become newsworthy again with Mr Stradford’s claim for damages against Judge Vasta being successful. In an 852 paragraph judgment, Wigney J in the Federal Court traversed some rarely seen issues including judicial immunity and whether it applies to inferior court judges. The end result is that the Judge will be personally liable for a portion of the damages. If you’re not up to reading the judgment you could just listen to the Law Report podcast.
Angelo Vasta
However, this post is not about Judge Vasta Jr. I grew up in Bjelke-Peterson pre-Fitzgerald Queensland and even I remember the controversy surrounding his father, former justice of the Supreme Court of QLD, Angelo Vasta.
On 8 June 1989, Mr Angelo Vasta QC’s commission as a Judge of the Supreme Court of Queensland was cancelled by the then Governor of Queensland, the late Sir Walter Campbell AC QC. The action taken by the Governor followed a motion of the Queensland Parliament passed the day before to remove Mr Vasta from the Supreme Court due to behaviour which in the opinion of a Parliamentary Judges Commission of Inquiry warranted his removal from office.
Needless to say there was a tangled web of matters that ultimately led to his removal. He is (I think) the only Supreme Court Judge who has ever been removed from office. The matters started with a defamation case against the magazine Matilda, which published material about his relationship with the then police commissioner Terry Lewis. Of course, friendship with Terry Lewis resulted in him being invited to give evidence in the Fitzgerald Enquiry. That invitation was declined and Justice Vasta was then given notice that there may have been evidence that an affidavit he swore in the defamation proceedings may not have been entirely correct.
This is quite a long saga and most of it is difficult to find on the internet. However, in 2017 Robbie Katter (state member for Mt Isa and Bob’s son) introduced a private member’s bill to the QLD parliament. A parliamentary committee examined the Honourable Angelo Vasta (Reversal of Removal) Bill 2017 and recommended that it not be passed (which it wasn’t). The detail of the history and background are set out in the report of that committee which is on the internet.
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