Latest round of judicial hand washing … Sal’s failed case transfer to the Feds … Lack of resources … Industrial relations, Nazi style … Perth lawyer off the hook in bikie-related false statement conspiracy … Groper reports from Perth
We can make up for the hiatus now, with news that Sal has been roundly and thoroughly squelched by Justice Katrina Banks-Smith in the Perth branch of the Federal Court.
In November last year, Judge Vasta was case managing a Fair Work claim against the University of Western Australia. The claimant, Shane Chambers, was an employee and a PhD candidate at UWA.
Between 2015 and 2020 he was employed as a senior technician on UWA’s ‘shark project’. UWA says his employment terminated when the shark project came to an end.
There were 20 claims and voluminous material, which Judge Vasta said will take some time to “get one’s head around”.
Sal said the issues included:
“… A discussion as to the role of PhD students who are being paid a stipend and whether that makes them employees, or whether, if such duties are done and then combined with a active employment role, that changes the relationship with regard to the PhD candidature such that it morphs from being a position, with a stipend, to a different position with an overall unwritten, but understood, contract between the applicant and the university.”
According to the university, Chambers was a PhD candidate between 2005 and 2018. There were episodes when his candidate was suspended or when he was on sick leave.
To Sal’s way of thinking:
“… This court simply does not have the resources to properly consider the matter. This court is a court of large intake and large turnover.
“The court, at the moment, has backlogs of, approximately, 14,000 matters in family law and over 16,000 in migration, and it is that pressure that every judge within this court, especially those like myself who have a mixed docket, are under.”
He flicked it to the Federal Court, where it landed in the lap of Banks-Smith, who flicked it back to the FCFC, and in the process itemised the shortcomings of Sal’s thinking.
There are mandatory considerations in the FCFC rules that need to be weighed before a case can be moved upstairs. It seems that Vasta’s consideration to the rules was sorely wanting.
He said that the case involves “complex matters of law” requiring a great deal of time. Yet, the essential requirement before a case can be transferred is consideration whether it involves questions of “general importance”.
Nor did Vasta in his reasons discuss the cost, the availability of particular procedures or the convenience to the parties.
“The failure to address these matters indicates that the judge misunderstood his task under the FCFCOA Act and the FCFCOA Rules and did not have regard to mandatory considerations.”
The legal force of Vasta’s transfer order is left “tolerably unclear”.
Mr Chambers did say he would prefer his case to be heard by the Federal Court because of the likelihood of appealable error by the FCFC.
This ground was also insufficient to warrant a transfer. The case was “well within the experience and jurisdiction of the FCFC”, where it has been on foot for more than two years, with at least three judges seeking to wash their hands of it.
Chambers v University of Western Australia, per Vasta J FCFC
Chambers v University of Western Australia, per Banks-Smith J, FCA
The poor overworked and underpaid nurses held a strike outside parliament house – in contravention of the commission’s edict.
The registrar is alleging 3,590 breaches by union members and another breach by union secretary Janet Reah – with potential fines totalling more than $27 million.
Each breach is being treated separately, which cranks up the potential tally of fines.
To add to the ramped up mood, Maria Saraceni, counsel for the registrar, said the union had written down what it planned to do and carried it out.
She added, in an attention grabbing flourish, that was comparable to the actions of Adolph Hitler. Not Stalin or Pol Pot, but Hitler.
She subsequently withdrew the Nazi comparison, instead saying that the nurses and midwives union was more akin to Karl Marx.
Communism, fascism. This is some union.
Ms Reah said:
“I’m just wondering what kind of country we’re living in where an officer of the court likens the actions of the nurses union and the nurses and midwives of Western Australia … to Hitler’s Mein Kampf.
Maria Saraceni is a Cavaliere, a knight of the Italian order of chivalry. The ABC approached her about her comment, but she did not wish to expand on her unfortunate remarks.
Last week the WA Court of Appeal (Justices Michael Buss and Robert Mitchell, with Justice Mark Livesey shipped in from South Australia) decided to set aside Rodgers’ conviction for conspiring to pervert the course of justice.
Rodgers had been the subject of colourful media coverage over the alleged conspiracy with bikie-related individuals to procure a false statement from a gentleman known as Jack Ryan Tonta.
Rodgers was found guilty in March 2021 and got three years porridge.
Tonta, who was in the methyl amphetamine business, had been abducted by bikies and their associates, thrown in the boot of a car, hogtied, beaten, waterboarded, doused with petrol and “briefly set alight”.
Later it was decided that Tonta should forget the identities of his abductors, in order to get them “off the hook” and arrangements were made for him to change his earlier story provided to the police.
The state of WA contended that Rodgers was procured to take a false statement from Tonta, who had been pressured by another former prison inmate known as Mr Curry, who was in contact with the alleged co-conspirators.
Engaging stuff for the fish wraps.
At the trial Judge Troy Sweeney identified the state’s case as “an agreement to pressure Jack Tonta by means of encouraging, cajoling and threatening him into falsely changing the account he had given to the police about the [abduction and assault]”.
However, what was particularised by the prosecution at trial was different from the conspiratorial agreement alleged in the indictment.
The indictment only referred to procuring a false statement from Tonta, without reference to “threatening, cajoling and intimidating” him to change his story.
What was left to the jury was a jumble – an agreement alleged in the indictment and the allegation made during the trial that Rodgers had procured the false statement by improper means.
As Mitchell JA put it:
“It was highly undesirable for the State, by particulars and opening submissions, to allege a different conspiratorial agreement from that alleged in the indictment.”
The conviction was not reasonably open to the jury on the evidence, particularly after it only deliberated for less than two hours, including the lunch break.
While Rodgers was not acting for Tonta and may have been acting for someone else, the recorded evidence from their meeting was that he had not directed him what the say in his revised statement, even though he had not advised him to tell the truth.
“As I say mate, I’m not pushing you to do anything. No skin off my nose …”
Tonta’s evidence at the trial was to the effect that Rodgers had talked over him while taking his statement of disavowal “and reword what I had said”.
He added that the solicitor had told him that when it goes to trial, “I’m not to identify anyone … I’m just to say I can’t be sure … who did it to me”.
Mitchell JA said there were good reasons for the jury to “approach Mr Tonta’s evidence with caution”. He was not of good charter, with an extensive criminal record and had received a discount for cooperating with evidence against the alleged co-conspirators.
For Rodgers the appeal was allowed, conviction set aside and substituted with a judgment of acquittal.
Rodgers v State of Western Australia