In October 2015 Mr Chameoeun (“Jimmy”) Soun was hired to undertake $7,000.00 worth of work at a property in Cranbourne, Victoria. He did not provide the property owner with a formal contract and took a deposit of greater than 10%. Later that year he was also hired to build a laundry (which he did without obtaining a building permit) and a carport valued at $6,000.00 for which he again did not enter a contract. He was not a registered builder.
A builder must not enter into a major domestic building contract unless … the builder is registered as a builder under the Building Act 1993, in the case of a natural person … Penalty:100 penalty units.
A ‘major domestic building contract’ was defined as one where the contract price exceeded $5,000.00 (subsequently raised to $10,000.00).
Mr Nuon opted neither to appear nor be represented at the hearing of the charges. In his absence the Dandenong Magistrates Court convicted him and imposed a fine of $5,000.00 plus costs.
Victorian Building Authority v Nuon (2019) Cranbourne Star-News, 7 February 2019, p.3
I’m writing this on the tram from work. I left the office at 7:10pm and I’m letting go of the guilt.
It’s a warm day here – 40° just now – and so I’m getting the tram to St Kilda for a swim while there’s light.
I felt a pang of guilt before I left the office. My brain kept saying –
I could work till 10pm. I could get a lot done in those 3 hours. I could draw a long-outstanding Statement of Claim, for instance, or wade through a particularly intractable set of medical records.
Yes, I could have. But I did this for much of my earlier career and I know where it ends. It ends with evenings where you really just sit in your office browsing Twitter or playing YouTube videos and getting less productive and more demoralised.
So one evening off won’t matter. I had one yesterday because I wasknackeredafter yesterday’s County Court matter. I went for a great run at St Kilda and came in today feeling like a new man.
There’ll be plenty of late nights this year. I have a lot of files and no shortage of deadlines. But I do think it helps to remember that late hours are the scythes of legal practice. Use them shrewdly and effectively and you’ll cut swathes through your work. Overuse the and all you’ll do is blunt their edge.
And here I am at the Esplanade. See you at work tomorrow!
I’m starting this post in my office with a file in front of me and a cup of tea brewing. The file is one of those that I get passionate about within five minutes of looking at it, because it involves workplace bullying.
I hate bullies. I know, nobody likes them, but I truly fucking hate them.
I could tell you a lot of guff about why I hate them. It’s enough to say that I was knocked around at school a lot when I was a kid, and for a decent whack of my life I kinda thought I had to just wear it when people threw their weight around. I can’t abide the casual cruelty of bullies. I hate the way they present you with your own weakness: “you wouldn’t last ten minutes working there – the boss would be chasing you about the place with a hammer“. I hate their petty, venal abuses of power. Above all, I hate the endless excuses they have: “you don’t know the pressure I’m under” … “I built this business up from nothing so I can run it how I want” … and the most sadistic and responsibility-denying of all: “if you don’t like it here, you know where the door is” when the all concerned know full well jobs are scarce and workers easily replaced.
As an aside, I notice the legal profession has a few dark secrets of its own –
It’s tempting to name the person in the case I’m working on, but I won’t. I’m happy to let the pleadings do the talking (Michael Avenatti I am not). It’s very tempting, however, to paste a Hellraiser meme into an affidavit and serve it on my opponent:
The case in question isn’t straightforward but I think I can win it. I couldn’t fight back when I was on the factory floor. The courtroom and the registry are my preferred battleground. This defendant likes pushing people around? I’ll play.
Anyway, this got me to thinking about things in your job you didn’t expect when you went into it (or in my case, came back to it). Something I didn’t expect on returning to the law was how often I’d find myself drinking cold tea and coffee.
I should explain.
I love what I do, and because of that, I get a bit focussed on it, especially if it’s a challenging file. I also drink a lot of tea through the day. This is a poor combination. At least once a morning and a couple of times each afternoon I go and make myself a mug of extra-strong Tetley and then come back to my desk. As soon as I do I find myself caught up by the current legal problem that I need to unpick. Meanwhile, my mug sits there thus…
By the time I remember it, the tea is feeling unloved and (like any things that feel unloved) it’s having trouble staying excited about its job, which is to be hot and bracing.
I’m sure this isn’t a rare problem. My friend Allie, for instance, at Living My Full Life, recently posted about how much she’s enjoying a line of seasonal teas. She has a newborn baby, and I’m guessing from experience that she drinks a lot of it fairly lukewarm. Anyway, it seemed to me that my experience now contrasts radically with my not-too-distant work as a factory hand or gardener or labourer when the tea break/smoko was close to sacred and was rarely-if-ever disturbed. I suppose it’s because the five minutes of peace and quiet for a hot cup of tea or coffee made a welcome break from sun and dust and power tools and physical labour.
What do you find about your current work that you didn’t expect?
Even a small tax can cast a long shadow (British North America in the 1770s, for instance). A nineteenth century tax recently reverberated in a win for Chile in the International Court of Justice.
In February 1878, the Bolivian government imposed a (possibly unlawful) tax on the Chilean mining company Compañía de Salitres y Ferrocarril de Antofagasta which was operating in its territory. The resulting War of the Pacific went badly for the Bolivia and its ally, Peru. The subsequent Treaty of Peace and Friendship of 1904 resulted in Bolivia ceding its coastal territory to Chile, making it a landlocked country. The matter remains a sore point in Bolivia. In 2013 that country applied to the International Court of Justice for a finding that Chile was obliged to negotiate with Bolivia “in order to reach an agreement granting Bolivia a fully sovereign access” to the Pacific Ocean.
The Court’s decision was given on 1 October 2018. The court noted as an initial point that –
While States are free to resort to negotiations or put an end to them, they may agree to be bound by an obligation to negotiate. In that case, States are required under international law to enter into negotiations and to pursue them in good faith. As the Court recalled in the North Sea Continental Shelf cases, States “are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification” …. Each of them“should pay reasonable regard to the interests of the other”.
The point might be usefully remembered in negotiations of any sort.
In the matter at hand, the Court did not consider that any of the bilateral agreements relied on by Bolivia required Chile to negotiate access to the sea. Equally, Chile’s unilateral statements of general goodwill regarding negotiations did not create a legal obligation (sample text: “the policy of the Chilean Government has unvaryingly been a single one: to express its willingness to give an ear to any Bolivian proposal aimed at solving its landlocked condition”).
Interestingly, the court also found that the United Nations Charter did not assist Bolivia. While the Charter provides that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”, the Court said
This paragraph sets forth a general duty to settle disputes in a manner that preserves international peace and security, and justice, but there is no indication in this provision that the parties to a dispute are required to resort to a specific method of settlement, such as negotiation. Negotiation is mentioned in Article 33 of the Charter, alongside “enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements” and “other peaceful means” of the parties’ choice. However, this latter provision also leaves the choice of peaceful means of settlement to the parties concerned and does not single out any specific method, including negotiation. Thus, the parties to a dispute will often resort to negotiation, but have no obligation to do so.
Relevant to matters involving other international bodies, it was also not significant that Chile had voted in support of resolutions by the Organization of American States recommending the two countries negotiate over the issue: “Chile’s participation in the consensus for adopting some resolutions therefore does not imply that Chile has accepted to be bound under international law by the content of these resolutions.”
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …
It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss. The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.
Judge Dyer noted that
Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.
She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.
His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely. She was granted leave to sue for damages.
The image that kept cropping up in my social media feeds today was an unflattering photo of Madam Justice Ruth Bader Ginsburg at Justice Kavanaugh’s swearing in. The usual comments have been, unflatteringly but not unfairly, along the lines of “she looks like she was taken from a nursing home and is deeply annoyed that this isn’t a visit to IHOP.
This got me thinking about when judges should hang up the boots. Judges on the High Court of Australia are required constitutionally to retire at seventy years as a result of a referendum in the 1970s. This, perhaps, reflects some extremely long judicial careers on the High Court. Longest of all was that of Sir Edward McTiernan. McTiernan was appointed in 1930 and retired (not altogether willingly) in 1976. He was aged 84 years. His judgments were never overly impressive (my impression as a law student was that his most common judgment was the phrase “I concur”), but he still seemed to be active and involved until retirement.
McTiernan J’s career was rivalled by the longevity of Sir George Rich. Rich served from 1913 to 1950 and retired at the age of 87. His judgments, too, are never overly deep. Wikipedia offers the mixed compliment that –
Rich’s judgments are generally considered to be clear and concise. Some commentators attribute this more to laziness than to a knack for clarity.
The same can be said away from the Bench too: I’m sure we can all think of barristers, solicitors and legal academics we’ve known who were, well, past their prime. So my question is: when should lawyers look at calling it a day?
You don’t often see an employer using its own fault as a defence. Except maybe in a jurisdiction where gambling is a way of life.
Mr Baiguen seems to have had a stroke before or just upon arriving for work. He was noticed to be dribbling, his face was drooping and he appeared unresponsive and disoriented. Two coworkers gave him a lift home. When his girlfriend found him two days later he was dribbling and unable to talk. He had missed entirely the three-hour window within which medical care might have substantially improved his outcome.
The rights and remedies provided in [this Act] for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive … of all other rights and remedies of the employee … on account of such injury.
The Supreme Court agreed with the District Court. It followed its earlier decision of Mirage v Cotton, 121 Nev. 396; 116 P. 3d 56 (2005), finding that an injury occurs ‘in the course of employment’ when it occurs at the workplace while going to or from work within a reasonable time.
The Court also considered that the accident had arisen out of Mr Baiguen’s employment. Nevada law classes risks at work as “employment risks” (for example, getting a hand caught in a machine), “personal risks” (for example, epilepsy) and “neutral risks” (for example, getting struck by lightning). A mix of an employment risk and another risk would be an employment risk. The court found that while Baiguen’s stroke was a personal risk, his employer’s defective response to his symptoms had caused him to lose his chance of a better medical outcome:
That Harrah’s might respond inadequately to Baiguen’s stroke in the workplace, due to inadequate workplace policies, procedures, or training, or fail to follow existing policies, procedures, and training, is a risk related to Baiguen’s employment. Such inadequate policies, procedures, and training are conditions of the workplace akin to well-recognized physical hazards, like the risk that the injury from a painter’s stroke will be worsened by falling off a ladder, or an epileptic cook who suffers a seizure and burns himself on a stove.
A second argument for the injury arising out of employment is intriguing. The court accepted the classic position that at common law a person is not obliged to aid a stranger in peril*. A duty exists where a special relationship (like employer/employee) exists. The court said that
Under the facts before us, any duty on Harrah’s part to render aid to Baiguen would have arisen out of the employer-employee relationship, not another special relationship such as innkeeper-guest or restaurateur-patron. … Thus, while the NIIA’s exclusive remedy provision cannot bar a guest or a patron from suing in court for negligence on facts analogous to these, the NIIA limits an employee’s remedy to workers’ compensation.
A constantly vexing question for plaintiff lawyers is when a person’s liability for another’s drunkenness kicks in.
On June 2011 four young men threw a party in Boulder, Colorado. It must have been a good one, because it attracted many people beyond the invitees. One such person was 20-year-old Hank Sieck, who attended with Jared Przekurat. They were friends of a friend of a friend of the organisers (no, really). Alcohol was served and Sieck became drunk. He and Przekurat left in the latter’s car, with Sieck driving. Inevitably an accident occurred, causing Prezkurat severe brain injuries.
No social host who furnishes any alcohol beverage is civilly liable to any injured individual … for any injury to such individual …, because of the intoxication of any person due to the consumption of such alcohol beverages, except when … It is proven that the social host knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage.
The District Court summarily dismisses the claim, finding that a social host must actually know a guest is underage to sustain dram shop liability. The Court of appeal agreed: Przekurat v Torres, 2016 COA 177. Przekurat appealed to the Supreme Court of Colorado.
The Supreme Court agreed with the District Court. It found, firstly, that the requirement to act knowingly applied both to provision of a place to drink and also the (under)age of the drinker.
[T]he provision of a place to provide for consumption of alcohol must be done knowingly, as it is difficult to conceive how a social host could unknowingly provide a place for alcohol consumption and still be considered a social host. To conclude that “knowingly” only modifies the act of providing the space would thus make that word superfluous in the statutory scheme.
The next question for the Court was whether the host must actually know the drinker’s age or whether constructive knowledge would suffice. Specific knowledge was found to be required under the norms of statutory construction –
Affording “knowingly” its “plain and ordinary meaning,”…, we conclude that actual knowledge is required. When the General Assembly imposes a constructive knowledge requirement, it typically provides that a person “should have known” of a particular thing. … Statutory interpretation in Colorado has consistently construed the words “know” or “knowingly” without that qualifying “should have known” to require actual knowledge.
I have a pet theory that the period from 28 February 1991 to 10 September 2001 was “history’s long weekend”. But despite the general laid-back feel of the era, some serious questions needed answering. The Baha Men, for instance, asked –
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
We now know the answer. And thanks to the Supreme Court of Vermont, we also know where the fault lay.
On 15 January 2016 the Flores family went to the home of the Pearo family. The Pearos has invited the Flores to let themselves in and left the door unlocked. As the Flores’ son opened the door, the Pearos’ three dogs (later claimed to be pit bulls) bolted from the house. The dogs ran up to passerby Eric Gross. They attacked his dog and grabbed the man’s arm, dislocating his shoulder.
Gross commenced proceedings in the Vermont Superior Court, alleging that the Pearos’ landlord and the Flores’ had negligently failed to control or restrain the dogs. The defendants sought summary dismissal of the case which was granted. Gross appealed.
The key question on appeal was whether either defendant owed a duty of care to protect third parties off the premises from harm caused by the Pearos’ dogs. The Supreme Court of Vermont said no. The landlord had a duty to
… take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. … By permitting a tenant to keep a dog that the landlord knows to be vicious, the landlord could be viewed as having created the risk that led to the third person’s injuries. … Requiring the landlord to exercise due care to protect the public in such a situation is consistent with the general duty of care owed to the public by a landowner who personally carries on unreasonably dangerous activities on his or her land.
The plaintiffs did not offer evidence that the landlord knew or should have known of a vicious tendency in the dogs.
The court accepted for the sake of argument that the Flores’ were the dogs’ keepers at the relevant time. Vermont law considered keepers to face the same standard of care as owners of dogs. That is, they are not liable for injuries to persons unless they have some reason to know the animal is a probable source of danger. When an owner or keeper knows a dog is dangerous, they must “exercise reasonable control and restraint” of the
dog to avoid injury to others. The case against the Flores’ failed for the same reason as the case against the landlord: they did not know the dogs were a danger to anyone.
Interestingly, the court took time to consider pit bulls are an inherently dangerous breed, stating that
this Court has never held that a dog’s breed alone is sufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per se. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.