Law shop disquiet over pay and leave during the plague … Other shops pressing galley slaves for an early return to work … Homework not up to scratch … On tap for pressing matters … Street assemblies in court … Revisiting 1970s student radicalism … The Chestnut reappears … Theodora reports
At Minters there are grumbles among the lower decks that consent was not sought for the scheme to “purchase” six weeks extra leave.
This involves cutting salaries by 15 percent up to December in exchange for taking off an extra six weeks. Two weeks should have been taken before June and the balance by the end of December.
However, some have been advised that within that time frame they cannot necessarily take Covid leave when they want.
They understand that if they make a fuss about buying extra leave they would be the first to walk the plank.
People in busy practice areas such as employment and government may be exempt from the leave policy. Management says this is the best way of “sharing the pain”.
Somewhere there’s a policy document about this that would “make any employment lawyer squirm”.
Partners’ draws have been cut by 50 percent, but this seems meaningless as the remaining profits can be drawn on in later months.
Some passionate types were hoping for “create positive impacts”, but that didn’t fly.
Happily the firm’s CEO and managing partner Annette Kimmitt carried off an AM in the Queen’s Birthday honours parade, for “significant service to business and to gender equality and inclusion”.
We also hear rumbles from the bowels of Yarraside’s Arnold Bloch Leibler, preferred lawyers for the Andrews government.
The state government had discouraged bosses from bringing employees back to the coal face in June, a proposal that has run into difficulties at ABL.
For instance, in late May litigation lawyers were requested via an impromptu Zoom meeting to return to the HQ at 333 Collins Street the next day and that this was a requirement of their employment.
Rank and file personnel who wanted to stay at home would have to use leave entitlements to do so.
Some understood that if they stayed beyond their leave entitlement they would be turned into pillars of salt, or worse.
The reason for all this was that the top brass was dissatisfied with the quality of written work produced at home. They were advised at the meeting that because they worked on high profile and complex cases they were essential workers and consequently the work directive complies with public health requirements.
Apparently, Premier Andrews has been advised that his litigation people are at their work-stations, ready for action.
On Friday, June 5, Justice Des Fagan of the NSW Supremes, refused an order that would have allowed Sydney’s BLM protest to go ahead.
The following afternoon the Court of Appeal exercising magic powers overturned the decision and said that the assembly could go ahead – 15 minutes before it officially started.
The Commissioner for Police had commenced proceedings in the court to prohibit the rally, after the previous day agreeing that it could go ahead following an amended notification by the organisers of the protest.
Des Fagan found that the amended notification amounted to a new notice of intention under part 4 of the Summary Offences Act and because it was not made at least seven days prior to the assembly it had to be authorised by the court.
Because of the radical increase in the projected size of the vigil, the judge refused the authorisation on public health grounds.
The appeal judges (Bathurst CJ, Taco Bell P and Mark Leeming) thought otherwise – that the amended notice did not amount to the notification of a new notice. It was the same notice and was within time.
Consequently, the wrong orders had been made at first instance. The appeal judges wrapped up their judgment, saying:
“We make it plain that, in circumstances where the entirety of the proceedings at first instance and in this court were heard and determined within 24 hours, neither party is to be criticised for the lack of precision in the originating process or the form of the orders which were sought and all parties, their legal representatives and the primary judge are to be acknowledged for the utterly professional manner in which complex issues were agitated and determined under circumstances of great urgency.”
All of which has flushed out some memories of former University of Tasmania colleagues who were at law school with Des.
The hearsay is that Fagan was a bit of a student radical and that following the Vietnam war the main campaign on campus was to get a pedestrian crossing under or over Churchill Avenue.
Now, statues of Winston Churchill are under attack in the Old Dart, back then it was the road in his name that was at the centre of agitation.
The road separated the union building from the main campus and there had been a couple of injuries as students collided with cars.
According to this report of student activism in the 1970s, a group was formed called SIVRAR, Students in Violent Revolt against the Road. They wrote to the university newspaper Togatus:
“The ultimate aim of our movement is the destruction of the road. It is proposed that our movement will be completely unstructured, our brothers will be bound together only by the common thirst for violent action!”
It cannot be suggested for a second that Des Fagan wrote that call-to-arms. Memories of our Map-based field agents have become jaded over the years. Some thought he “led” the demonstrations while others believed he was simply on hand to counsel the agitators.
Protests were accompanied by beer barrels and rock bands. At one demo an old car was rolled onto Churchill Avenue and torched, a sure way to draw attention to the unstructured cause at stake.
When the fire-brigade arrived the rebels turned the hose on the firemen. The whole event was regarded as a huge triumph and by 1978 a Churchill Avenue underpass had been completed.
Des’ father Roy Fagan had been attorney general and then deputy premier and attorney general of Tasmania in the Labor governments of Robert Cosgrove and Eric Reece.
Roy also was active in university life and for a time was president of the Tasmania University Union.
In further developments from The Map, Justice Greg Geason had to remove Madge Reg Marron from a work, health and safety case after the learned magistrate failed to find that he was apprehendedly biased.
A forklift driver was killed after his machine, while working on a slope, tipped over unloading steel sheets from a truck.
Proceedings were brought under the WHS Act against the employer, Roadside Products Pty Ltd. The prosecution wanted to amend its original charge, but Roadside’s lawyers said the charge was incapable of amendment.
Reg Marron stepped in and drafted the amendments off his own bat.
“… it is just that I should exercise my discretion to amend the complaint so as to disclose the way in which it is alleged the defendant has committed the offence.”
Satisfied that he had cured the deficiencies in the complaint, the defence nonetheless made an application for recusal on the ground of apprehended bias.
Reg would have none of it. He said that at the time he made the amendments there had not been a formal application by the prosecution to amend the particulars of the charge, so any objections could be heard later.
“Consequently, there has been no denial of natural justice,” Reg said in a confused ruling.
Geason overturned that finding:
“The milk was already sour, and the magistrate ought to have acceded to the request [for recusal].”
The point was that Madge Marron would have been called on to adjudicate on the efficacy of his own particulars. The apprehended bias application met the well-established test:
”The role of independent judicial officer has been abandoned. The court has undertaken the prosecution case, actively engaging in the task of rescuing a deficient complaint. That is not the court’s function.”
As for Reg’s observation that there was “no denial of natural justice”, HH pointed out, with respect, that:
“The considerations pertinent to the question of natural justice, and a denial thereof, are not applicable on the application for recusal for apprehended bias …
The learned magistrate reached a wrong conclusion on the law with respect to the application for recusal; he applied the wrong test, and he reached a conclusion, which in the circumstances was not open. The learned magistrate should not continue to hear the case. I remit the matter to the Magistrates Court to be dealt with by a different magistrate.”
This not the first occasion we have had the melancholy duty to mention Reg (The Chestnut) Marron in dispatches.
In April 2010, our Van Diemen’s Land agent filed a report that said Chief Justice Ewan Crawford identified 12 errors in Reg’s handling of a speeding case in Launceston.
The Chestnut had conducted the case without due process, but rather in the nature of an inquisition. He “demonstrated an ignorance of the usual process in speeding cases”.
Eleanore Wells had been charged with riving at 65 kph in a 50 kph zone. She appeared for herself and pleaded not guilty, contending that the speed detection device was detective.
The speed camera operator was in court. The Chestnut read some of his proof of evidence, but did not show it to Wells, declaring that the camera operator did not need to give evidence. He pressed on to find the charge proved without any admissible evidence to support the finding.
The CJ said the applicant “should not have been treated in the way she was”. He set aside the conviction and the $350 penalty.
In March 2013, we reported that the then CJ-in-waiting Alan Blow booted another of the Chestnut’s decisions in a tricky driving licence drama.
Blow described the decision to grant real estate agent George Andrew Bushby a restricted driving licence as “extraordinary”, adding that the Chestnut had been “extremely gullible”.
Bushby’s provisional licence was suspended for three months as a result of an accumulation of demerit points. He told Marron that he needs a car for his job seven days a week between 8am and 8pm.
The Chestnut granted him the restricted licence after some creative interpretation of the Vehicle and Traffic Act which requires that a disqualification can be set aside if the magistrate is satisfied it would impose “severe and unusual hardship“.
Bushby produced a letter from his boss saying that the lad’s employment would be “terminated” if he did not get a restricted licence.
Bushby already had been twice disqualified from driving and there was a shortage of evidence that he faced severe or unusual hardship. Blow said:
“I suppose I have to accept that the learned magistrate was approaching his duties conscientiously. It follows therefore that he was extremely gullible on this occasion in accepting the letter.”
In 2010 The Examiner reported that someone suspected of being the Chestnut was caught driving 42 kmh over the limit.
Such an experience can often cause a judicial officer to either be quite hard or unduly soft on those committing similar offences.
In December 2012 The Mercury noted that the Supreme Court upheld the sixth appeal against Reg in 12 months.