British India was always an odd blend of compassion and ruthlessness. By the 1920s, the Raj had enacted workers’ compensation laws for the subcontinent. It then proceeded to enforce them fairly ruthlessly.
In about 1936 Mr Maung Ba Aye was employed by the Bombay Burmah Trading Corporation as an elephant handler. On the day in question, however, he had been asked to hand-deliver a letter between two company officials. On his way back he was attacked by a bear, suffering fatal injuries. The Commissioner for Workmen’s Compensation ordered that compensation be paid to the deceased’s mother. The Company appealed to the High Court of Burma, stating that the deceased was not a worker at the relevant time.
(ii) employed in any such capacity as is specified in Schedule II [which included employment”in the training, keeping or working of elephants or wild animals”] …;
Roberts CJ considered that the Act was a “quasi-penal statute” and so it should be read strictly rather than leniently. As a result –
it is clear that at the time that the deceased was being sent out on a message to Mr. Barlow he was not employed in the task of training, keeping or working of elephants or wild animals. He was a person who was normally employed in that capacity, but was being given other duties to perform on that particular day. … [B]eing obliged to administer the Act as it stands,we are constrained to say that the deceased was not a workman within the meaning of the Act for the purposes of this appeal.
A similar line of reasoning was followed by Dunkley J. As a result the employer could not be ordered to pay compensation in relation to the death.
The most relentless buzzword in legal practice seems to be “wellness”. Jeena Cho writes an interesting column on the subject for the ABA Journal. Stress management is the source of quite a large number of articles. Lawyers Weekly recently ran a story with guidelines on establishing resilience covering –
1. Engage with family and friends. Take the time to maintain healthy and emotionally stimulating relationships outside of work and explore ways to connect with people in meaningful ways. For example, go for a nice walk after work or eat a meal with friends or family as often as possible. 2. Get into a structured sleep habit. Aim for seven to eight hours a night and wake up at the same time every morning (even on the weekend). …. 3. Divide your day into segments. Allocate time for certain work tasks, time to move your body and time for mental breaks. 4. Find a way to be active every day. …. Just 30 minutes a day can work wonders for your brain and increase your resilience long-term. 5. When in doubt, breathe out. ….
This sounds great, although it’s impractical when your workday looks like this –
Anyway, this left me wondering what I recommend in the way of stress management based on a career which has not been uneventful.
This is a biggy. One of the sagest bits of advice I ever received was from my friend Pam, who in turn got it from a veteran CFA Captain:
When you turn up at a bushfire, the first thing you should do when you get out of the truck is lean on the bullbar and have a cigarette.
It makes sense, right? The five minutes you take for a cancer-stick won’t make much of a difference and you’ll calm yourself down, appraise the situation and react to it calmly. In the world of law this translates to: your opponent’s sent you an email refusing to agree to a vital adjournment? Go and make a cup of tea, then come back and look at how you’ll respond to the unco-operative bastard.
You Can Fix It
It’s easy to forget, but just about every misstep in litigation can be fixed. The only ones that can’t be repaired are missing a statute-of-limitations date or (in my jurisdiction) missing a step in the workers compensation serious injury/common law field. Virtually every other glitch can be fixed. It may be expensive and embarrassing but it can be fixed.
Speak Without Thinking
This one is counter-intuitive. Let me explain. You can never show weakness or indecision and so your first response to a challenge must be to return fire. So, if you’re on the phone to your opponent and they’re telling you how rubbish your case is, you should have a stock set of phrases to commence any reply. First, hearing your own voice say something tends to persuade you it’s true. Second, the brain has a remarkable ability to come up with something that will back up you initial statement. Some of my usual phrases are –
Well, I’m afraid I don’t see it that way.
I can’t imagine a jury will agree with you.
I must say, that’s not my understanding of the law.
I don’t think that position is sound.
That’s a curious line of argument.
Well, if the defendant wants to take that position, that’s a matter for you.
If all else fails, you can finish with “It’ll be interesting to see what the Court makes of it”.
Have a Rag Bag
Litigators should have an intellectual rag bag they can rummage through for ideas. The only way to acquire this valuable resource is utterly chaotic reading about the law. Read decisions from random jurisdictions, like the All India Reporter – Rangoon or the Supreme Court of Latvia. Flip through any lawyers’ magazine or law journal that crosses your path.
It’s astonishing you can use an intellectual tool you gather from them. In no time at all you’ll feel like you can deal with any problem that the law throws your way.
Prepare a Strategy
If service with SES has taught me anything, it’s how to prepare a SMEACS briefing. These briefings are an ideal way to organise your thoughts and plan your way to a win. They’re incredibly helpful if you’re worried about a file and you can pick it it up and see exactly what you planned to do next. The acronym stands for
S = Situation: What are the client’s injuries? When was the accident? What is standing in the way of them getting some money?
M = Mission: What are you trying to achieve? Do you want to bring the matter on as a priority? DO you want to win (one assumes so)? Do you need to extend time?
E = Execution: What precise steps need to be accomplished to get you to that point? What medical reports are needed, and who from? Do you need a site inspection? Should counsel be booked? This will usually be the longest piece of the note.
A = Administration: Are there interlocutory deadlines to be met? Do you need to allocate particular jobs to someone else (for example, preparing a Court Book?).
C = Communications: Do you need to update your boss? Are you dealing with your opponent’s Sydney office rather than their Melbourne office? Do you need to include a notice under the Service and Execution of Process Act 1992 because you’re suing an interstate defendant?
S = Safety: What is going to trip you up? Does the client need a Tigrinya interpreter for their medical examinations? Are they volatile and inclined to pick fights with doctors? Do you have a looming limitations date?
Preparing one of these briefings can take anything from 45 minutes to a couple of hours but (and trust me on this) it will save you a mind-boggling amount of time in the long run.
So there you have it: my two-cents worth on the subject of stress management for litigators. What tactics do you recommend?
In case you were wondering, committing a crime badly won’t save you from punishment.
In February 2019 a resident of Shepparton was found in possession of one mature cannabis plant, 17 small plants, a quantity of cannabis and cannabis growing material. He was charged with drug offences.
The matter was dealt with before Stuthridge M at Shepparton Magistrates Court. Ms Molly Wooderson appeared for the prosecution. The defendant was represented by Ms Kate Martin of Victoria Legal Aid. She submitted that the defendant had been seeking treatment since his arrest, was not a good gardener and had failed to care for the plants.
Her Honour sentenced the defendant to a one-year good behaviour bond without conviction.
Police v Povey (2019) Shepparton News, 2 July 2019, p.5
Mrs Carstein left behind a husband and thirteen children. Her widower, George Carstein, retained the law firm of JW Galbally (now Galbally & O’Bryan). He sued Locco on his own behalf and on behalf of their children under Part III of the Wrongs Act 1928. Sections 15 and 16 of the Act relevantly provided that
15. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death has been caused under such circumstances as amount in law to felony.
16. Every such action shall be for the benefit of the wife husband parent and child of the person whose death has been so caused …
Locco raised the defence that Mrs Cartein’s widower guilty of contributory negligence “by his servant or agent, Alfred Leonard Carstein”. George Carstein applied to strike out that part of the defence.
The application was ruled on by Gavan Duffy J. His Honour ordered that the relevant parts of the defence be struck out. He reasoned that in a case such as this, the issue of negligence was decided as if the deceased were herself bringing the case. If the defendant’s negligence would have entitled the deceased to sue successfully, then the defendant would be liable. It followed that the negligence of either George or Alfred Carstein was simply irrelevant.
Australian readers will be well aware of the legal brouhaha surrounding the social media use of rugby player Israel Folau. The most neutral way of putting the matter is to say that Mr Folau made comments about gay people which were considered gravely offensive and resulted in his contract as a professional athlete being terminated. The post in question was as follows –
As it happened, about the time this particular storm was brewing, I happened to notice a case in my home jurisdiction’s law reports that was worth considering on the matter of what speech is impermissible
Robert Brickell was a pretty angry man. He was described as a “mission worker” and on 7 April 1940 he was a man on a mission. He had fitted a microphone and loudspeakers to his car and gave a speech in Barkly Street, Ararat, which drew quite a crowd. He referred to the mayor’s decision to refuse permission to use the town hall for a religious meeting, and then to the mayor’s own religion. Warming to his theme he said –
The organisation responsible is that whose blighting influence has spread over most of the countries of Europe and whose slimy hands, dripping with blood unrighteously shed, is subtly but effectively grabbing control of this country, namely, the Roman Catholic Hierarchy of Authority which operates from the Vatican city, Rome, and carries on the biggest racket ever perpetrated upon mankind, blasphemously attaching the name of God and Christ to their racket.
The crowd became agitated and some people said “stop him or we will”. Police constable Eric Annett intervened to prevent a riot. Brickell was charged with breaching §24 of the Police Offences Act 1928, which provided –
Every person who … uses any … insulting words … in … any public place … whereby a breach of the peace is likely to be occasioned shall be liable to a penalty of not more than Ten pounds; and in default of immediate payment shall be committed to prison for a term of not more than three months unless such penalty is sooner paid.
Barrister DM Little, instructed by the firm of Nevett, Nevett & Glenn (now Nevett Ford Lawyers) sought to overturn the conviction on the basis that the words used, while offensive, were not insulting, unless there was insult to the personal feelings of the hearers. Insulting, he said, was confined to attacks on a person’s moral character only and not (say) physical appearance.
O’Bryan J took a different view. He considered that the word “insulting” had a wide meaning and covered scornful abuse of a person or the giving of a personal indignity or affront.
A Catholic would, I have no doubt, hearing the words in question, regard them as an abusive attack upon his personal religious beliefs and practices and would thereby suffer a personal affront. To say to a man that his religion is a sham, that it is a mere dishonest business and trickery, is to offer him a personal indignity as direct as possible.
It seems to me there are lessons for both sides in the ruling in Annett. On one hand, critics of what one might call public Christianity should not claim a right to say whatever invective comes into their minds –
Nobody likes hearing the alarm go off in the morning. Except for one man, who would have preferred his alarm to the sound of police executing a search warrant at 4:20am.
The search warrant turned up a stolen motorcyle along with 28 grams of cannabis and 10 ecstasy tablets. The subject of the search faced drug and property charges.
The matter was dealt with at Shepparton Magistrates Court before Stuthridge M. The defendant pleaded guilty. Ms Molly Wooderson appeared for the prosecution. Mr Anthony Coote of Camerons Lawyers appeared for the defendant. He submitted that the defendant, despite a criminal record, had beenoutr of trouble and was trying to re-enter the workforce.
The defendant was fined $1,500.00 without conviction.
Police v Dean (2019) Shepparton News, 2 July 2019 at 7
South Park devotees will no doubt remember the character Towelie, a drug-addicted towel with a surprisingly annoying personality. One of his scenes was essentially a model for a recent case in Texas (and after you’ve watched it, maybe watch a few other cartoons, because today’s casenote is kind of depressing).
On 10-11 April 2016 Karalee Williams made nine visits to a Walmart store in Houston, Texas. Each time she bought tins of dust removing spray. She bought at least sixty tins of spray, each time returning to her car in the parking lot to inhale it. On her second visit to the store she was noticed to have soiled herself and to have vomit in her hair. On her third visit she was naked from the waist down. The staff gave her a sundress and otherwise continued to serve her. On the morning of 12 April 2016 she died of an overdose of Difluoroethane inhaled from the tins.
Williams mother sued the store operator and a number of other parties. Proceedings were commenced in the 11th Harris County District Court. They were removed to the US District Court for the Southern District of Texas. The plaintiff, represented by Jeffrey Steidley, relied on a number of grounds to establish negligence. Several grounds relied on Texan statutes, but one in particular may be of general interest to common lawyers: the plaintiff alleged that the defendant’s employees had assumed (and breached) a duty when they took steps to assist the deceased by providing her with a towel and a sundress.
Walmart (represented by Daw & Ray LLP) sought dismissal of the claim, which was granted. The plaintiff appealed to the Fifth Circuit Court of Appeals.
The appeal was dismissed. Concerning the allegation of negligence mentioned above, the Court agreed that a duty to use reasonable care could arise where –
A undertakes to perform services necessary for B’s protection
A fails to exercise reasonable care in performing those services; and either –
B relied upon A’s performance, or
A’s performance increased B’s risk of harm.
Here there was no allegation that Walmart’s staff had caused Williams to rely on them or that they had increased her risk of harm. As a result no duty of care arose.
An animal cruelty case recently came before Shepparton Magistrates Court.
In June 2018 horse trainer Pauline Brodie’s property was inspected by officers of the Royal Society for the Prevention of Cruelty to Animals (RSPCA). Ten of the horses in her care were found to be in poor condition. Three others required veterinary assistance. The horses were subsequently relocated by Harness Racing Victoria.
(f) is … the person in charge of an animal which is confined or otherwise unable to provide for itself and fails to provide the animal with proper and sufficient food, drink or shelter; or …
(i) is … the person in charge of a sick or injured animal and unreasonably fails to provide veterinary or other appropriate attention or treatment for the animal; …
commits an act of cruelty upon that animal and is guilty of an offence and is liable to a penalty of not more than, in the case of a natural person, 250 penalty units or imprisonment for 12 months or, in the case of a body corporate, 600 penalty units.
The matter was dealt with before Stuthridge M. Ms Wendy Gutteridge appeared for the prosecution. The defendant was represented by Mr Markorius Habib of counsel. It was submitted that the defendant had been going through a difficult relationship breakdown, had struggled financially to care for the horses and had experienced significant humilation as a result of the incident.
The defendant was sentenced to a one year good behaviour bond without conviction and ordered to pay $500.00 to the Court fund.
RSPCA v Brodie (2019), Shepparton News, 2 July 2019 at 5
Something interesting has happened in legal education. When I started my degree back in the mid-1990s, one of the first things covered was how to find a case in published law reports. Somewhere along the line this seems to have dropped off the curriculum in favour of wholesale use of online databases like Austlii. This is a shame, because while electronic resources are very convenient, not everything has been digitised. British case law, in particular, is gathered at Bailii but includes old cases only in a very scrappy manner. In addition, online cases very seldom include a headnote – the case summary that is a gift to time-poor lawyers who need to get a handle on something quickly. If you’ve never seen a headnote, take a look at this website, for which I wrote dozens of them.
Because this has become a bit of a gap in the legal skill set, I ran a quick course for my colleagues Amila, Sarah and Tremayne today up at the Supreme Court Library. This post is mainly the notes of that course: I thought they might be useful for other lawyers out there.
This note covers the two most commonly used Anglo-Australian systems of case citation. American, Canadian and South African cases use somewhat different systems, and there’s a special system for English cases from before 1873.
The first system we’ll talk about tends to be preferred by Australian report series. A case citation will look like this –
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387
The key thing is that if the year is written in round brackets, then you don’t need to know it: it’s there only to tell you the year the case was decided. The details you really need to know are are –
50 The volume in of the series of law reports
CLR The series of law reports. In this case, the Commonwealth Law Reports, covering the reports of the High Court of Australia and (occasionally in the past) Privy Council appeals from Australia.
387 The page of the reports where the report begins.
The second system tends to be used for British cases. It looks like this –
McLoughlin v O’Brian  1 AC 410
If the year is in square brackets, you need to know it. The key details are –
 The year the case was reported. This will be how the volume of cases is identified.
1 If there were several volumes of that report series that year, this is the number of the volume.
AC The series of law reports. AC stands for Appeals Cases and covers reports of the House of Lords (now the UK Supreme Court) and Privy Council.
410 The page on which the report starts
Common series of law reports
Some of the most common series of reports for Australian lawyers are –
AC Appeals Cases. House of Lords (now the UK Supreme Court) and Privy Council
ALR Australian Law Reports. High Court and other cases mainly concerning Federal law.
CLR Commonwealth Law Reports. High Court of Australia and (occasionally formerly) the Privy Council
FLR Federal Law Reports. Self explanatory.
QB Queen’s Bench. Reports of the English Court of Appeal. (KB – King’s Bench – before 1952)
SASR South Australian State Reports
TLR Times Law Reports. A bit of a grab bag of old cases reported over the years by the Times of London.
VR Victorian Reports. Supreme Court and Court of Appeal. Previously VLR (Victorian Law Reports)
WLR Weekly Law Reports. Decisions of English courts at all levels
All ER All England Reports. Decisions of English courts at all levels
If you’re training younger staff, you might like to set them the task of finding cases within a time limit and sharing a photograph of the first page of the judgment. This list used in this exercise was
Duke of Wellington Gold Mining Company NL v Armstrong (1906) 3 CLR 1028
Hill v Chief Constable of West Yorkshire  AC 53
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
National & General Insurance Co Limited v Chick (1984) 2 NSWLR 86
R v Pittwood  TLR 37
R v Russell  VLR 59
R v Smith  2 QB 35
The Winkfield  P 42
I was a little bit surprised by how competitive my colleagues were over this!
If you’re planning to run this exercise, it takes about an hour. It should count for one CPD unit (Professional Skills).
Arguments in the matter of Pell v R were completed today in the Court of Appeal here in Melbourne. As one might expect, they’ve been followed closely by journalists and the public at large. The court has reserved its decision. My profoundest sense at this moment, however, is annoyance at the criticisms being leveled against Counsel for the Crown, Mr Chris Boyce SC.
I have difficulty commenting on Mr Boyce’s performance. I’m remarkably ignorant when it comes to things I know nothing about. I’m an occasionally-competent litigation solicitor. I’ve appeared in any number of procedural applications but have never run a trial. It’s unthinkable that I’ll ever appear in an appeal. And for that reason I don’t seel I’m qualified to assess anyone else’s performance.
Not everyone agrees, of course.
So the highly paid Victorian prosecutor couldn’t tell the Pell Appeal Court , child victims of sexual assault tell nobody because they are traumatised, ashamed and confused. Disgusting incompetence.
I have a major difficulty in matters of public importance: I’m aware of being ignorant when it comes to things I know nothing about. I’ve certainly had a few dreadful times on my feet in court. I’ve had a few of my submissions described as “remarkable” or “interesting” by the Bench ( “remarkable” and “interesting” are not words of praise). And on one memorable occasion in the County Court I heard a rambling incoherent voice droning on and then realised it was mine. I certainly know that it’s no easy job.
You feel like critiquing an expert? Fair enough. Go get your law degree, qualify, join the Bar, reach its highest levels and run a couple of hundred appeals and trials and then you might be qualified to be an armchair quarterback. Until then, you’re just another 130kg asthmatic sitting in the grandstand at the MCG shouting useful advice to professional athletes.