Discovering America?

Well, not quite.

Some years ago, I printed out a paper entitled Death By Discovery written by a Sydney barriater named Philippe D Gray-Grzeszkiewicz. The paper was designed to be an introduction to the mysteries of that proceral aspect of so much litigation called discovery.

The author specifically mentions poor junior solicitors and paralegals in his introduction. He must have come across a fair few in his day, and he obviously knows ...

... the concerns of newly admitted solicitors and paralegals who have lacked an authoritative but relatively accessible introductory paper that deals with the mechanics of a task that is often delegated to them without much instruction or supervision.

Basically discovery is where parties (or their legal advisors) disclose to each other all documents relating to the dispute hat are in their possession or are within reach. I rarely received much help from my supervisors about this topic. Perhaps that's because my superbisors were way too sensible than to practise (and therefore allow me to practise) in jurisdictions where such procedures were needed.

The author provides 2 very interesting definistions of discovery. The first is from Martin Vernon's Bluff your way in Law and focusses more on discovery by the client than his or her legal adviser ...

Discovery - Process of detailing in a huge chronological list the ten cardboard boxes of random but crucial paperwork discoveredrvals by your client at unpredictable intervals {after he first told you that he has given you everything of relevance).

The second is a somewhat more scientific definition by Albert Szent-Gyorgi and published in American Biochemist ...

Discover consists of seeing what everybody has seen and thinking what nobody has thought.

Thankfully I'm not terribly interested in either form of discovery.

Words © 2008 Irfan Yusuf


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EVIDENCE: Experts in civil litigation ...

I've had to return to law school and find out again how expert evidence works. Actually, I already know how it works, but I need to figure out the best manner in which to express this knowledge. Later in the week, I have to deliver a paper on the use of imams as expert witnesses in civil law cases. My main interest is in the area of workplace matters where employers are required to make reasonable provision for their employees' religious requirements. In such cases, you would thinke most imams would be the most logical choice of expert witnesses for either party or indeed the court or tribunal.

My audience will largely consist of non-lawyers. I guess this means I will have to explain the idea of evidence and why we have rules for determining what kinds of evidence a court will allow. In an increasing number of civil jurisdictions, the rules of evidence are applied in a more lax manner.

My starting point has been the following 2 documents:

1. J Burke, Osborn’s Concise Law Dictionary, Sixth Edition (1976) Sweet & Maxwell, London (Burke). I bought this copy in 1994 during a trip to Karachi after having completed my first six months working in a private legal practice. It cost 150 rupees, which in those days approximated to around A$7.

2. DM Walker, The Oxford Companion to Law (1980) Clarendon Press, Oxford (Walker). From memory, this was purchased at the Lifeline Book Fair in Canberra last year.

Some lawyers may be wondering why I'm not using a more specialised text such as Cross on Evidence. The main reason is that I don't have the time to translate esoteric legal textbooks into the kind of English non-lawyers (albeit academics and postgraduate students in Islamic studies) can understand.

The more interesting aspect of this topic is how the rules of qualifying witnesses as experts could apply in the case of imams, a profession who (at least in Australia) have no consistent method of accreditation.

Anyway, here are some threshhold points relating to evidence in general and expert evidence in particular ...

[01] Here is Burke's definition of evidence:

All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the proof of which is submitted to judicial investigation ...

[02] Burke includes in his definiton an wide variety of categories, including oral evidence given under oath.

[03] Here is Walker's definition of evidence:

Facts, inferences from facts, and statements which tend to convince a court or other inquiring body that certain facts, the state of which is unknown but being inquired into, are to a certain effect ...

[04] So why have rules of evidence? And what is their effect? Walker writes:

[T]he rules of evidence ... frequently restrict the kinds of evidence which may be adduced. The development of the law of evidence is ... on the whole a movement from reliance on non-rational grounds for decision to rational grounds.

[05] Next comes the issue of how an expert is defined. Burke defines an expert witness as follows:

A person with special skill, technical knowledge or professional qualification whose opinion on any manner within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant e.g. doctors and surgeons, handwriting experts, foreign lawyers. It is for the court to decide whether a witness is so qualified as to be considered an expert ...

[06] In some senses, an imam in Australia may be regarded as a foreign lawyer in that he is an expert in a legal system foreign to Australia. Many imams play the role of jurists in that they are consulted for advice on matters pertaining to sharia (Islamic sacred law) and how it might be implemented within an Australian context. Typical areas where this might occur are family law and estate matters. Quite a few Muslims are going to imams with a view to obtaining advice on how their wills are to be drafted. At least one Sydney imam (who is also a qualified solicitor) is marketing sharia-compliant wills.

[07] In what sense is an imam an expert? What special skill, technical knowledge and/or professional qualifications do imams have? And how can we determine whether an imam actually has such qualifications? Is there am agreed upon method for qualifying imams?

[08] Further, are imams necessarily qualified to give expert evidence on all areas of sharia? Does Islamic sacred law have peculiar and discrete areas of specialisation.

[09] Some years back, I read a primer on the Islamic law of estates. The primer was written by a group of South African imams, some of whom were also practising lawyers. One thing I remember from the book was that the law of estates was regarded as one of the most complex and difficult areas of sharia. If this is the case even for sharia lawyers, how much more will this be for Australian lawyers with little sharia expertise? And how much more for judges who must decide on matters involving sharia-compliant wills where the deceased's intentions much be determined with reference to intricate rules possibly external to the testamentary document itself?

[10] Walker defines expert evidence as follows:

Evidence given to a court by a person skilled and experienced in some professional or technical sphere of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements or similar means.

More soon.

Words © 2008 Irfan Yusuf


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VIDEO: President-elect Obama's victory speech ...

HUMOUR/VIDEO: US Supreme Court decision on the death penalty ...

Supreme Court Rules Death Penalty Is 'Totally Badass'

Facing up to the workplace consequences of Facebook ...

It’s only been a year since I joined Facebook. I rarely update my Facebook page, except to post articles from time to time. Online social networking just isn’t my thing.

So I was surprised to read that this:

Employers are using sites such as Facebook and MySpace to check up on their employees and research prospective staff.

It gets worse. Under the headline “Facebook frolics can burn a hole in your office kudos”, the Australian Financial Review reports on Friday 20 June 2008 reports:

In Britain, retailer Argos last year sacked an employee who made negative comments about the company on Facebook.

Closer to home, managers who have been caught out by employees announcing their resignations online before they tell the boss are regularly scouring social network sites.

You even need to be careful about how you update your status. Flippant status updates can be deceptive and even dangerous. For instance, the last time I checked, my status update read “Irfan is asleep”. Arguably, that update was misleading.

Checking up on employees who have phoned in sick is also not unknown. Networkers who regularly provide “status updates” make such surveillance easy.

But just how reliable are such updates? And just how much should HR managers rely on information on Facebook? After all, people often don’t put their real photo up on their site. And I’m not always sleeping, even if my status update says otherwise.

Many people don’t behave all terribly seriously online. Social networking lends itself to colourful expressions and hyperbole. So if your status update says you’re partying or seriously bludging, you might actually be sitting in a work meeting.

It seems even your choice of cyber-friends can cause trouble.

It might not be your own message that brings you undone.

"People bring together all sorts of acquaintances online – and that could lead to trouble," said David Vaile, executive director of the University of NSW’s Cyberspace Law and Policy Centre.

“Online friends are not necessarily friendly,” Mr Vaile said. “They may be part of a broader
group, such as a particular geography or company. They are not restricted to people you trust."

All this might explain why friends tell me some of their former cyber-friends (including friends in real-life) are cancelling their Facebook and MySpace accounts.

Words © 2008 Irfan Yusuf

Maternity leave – a huge source of labour pain for employers ...

Some years back, I was asked by an employer to advise to advise on the least risky manner in which it could dismiss a female employee who was taking maternity leave and wanted to work from home after the birth of her child. The employer was not prepared to provide such a “flexible working arrangement” to its employee for various economic and other reasons.

I was hoping to advise my client on a certain course of action based on my reading of certain case law. I had just completed and sent my advice when a report appeared in the Sydney Morning Herald about a decision of the NSW Administrative Decisions Tribunal concerning a female public servant who sought similar flexible working arrangements. That decision went in the opposite direction of my advice.

If not handled sensitively, maternity leave can cause enormous labour pain to employers. Many employers don’t realise that employees proposing to take maternity leave can often have multiple remedies available to them. Remedies include action under State and Federal Industrial legislation (e.g. Industrial Relations Act (NSW) and Workplace Relations Act (Cth)), State and Federal Anti-Discrimination legislation, common law breach of contract action, claims under State Fair Trading and Federal Trade Practices Acts and much more.

One recent case illustrates how workplace litigation related to maternity leave can be commenced by employees at all levels of seniority. The Australian Financial Review reported on Wednesday 9 July 2008 of action commenced by a doctor against multinational pharmaceutical company GlaxoSmithKline (GSK). The action claimed that GSK had breached its obligations to the doctor by demoting her after she returned from maternity leave.

The doctor’s papers filed in the Federal Court include claims GSK engaged in misleading and deceptive conduct (presumably in breach of Section 52 of the Trade Practices Act) by making certain representations to her about her future employment as a medical director. The employee was seeking orders that she be reinstated to the same position she was at prior to going on maternity leave. She is also seeking compensation as well as a court order that any statutory penalty imposed on the company for breaching the Workplace Relations Act be paid directly to her. The maximum penalty payable for breach of maternity leave provisions under the WRA is $30,000.

The AFR report also mentioned two other recent cases, all of which involved employees using multiple remedies simultaneously.

Earlier this year ... a former employee of ... Perpetual accused the company of discriminating against her and breaching her contract by making her position redundant while she was on maternity leave.

Fiona Dunn, who earned almost $700,000 a year as general manager, wholesale, lodged a claim in March involving allegations of discrimination, breaches of the Trade Practices Act and
contractual breaches, and is seeking multimillion dollar damages ...

In another maternity leave-related case, a software company that sacked an employee who was on maternity leave because it liked her replacement better was fined the maximum penalty of $30,000 earlier this year.

Employers have to be extremely careful in this types of cases. Employees facing a change in their working conditions should also obtain advice on their rights, especially before signing any proposed settlement or contract upon their return from maternity leave.

Words © 2008 Irfan Yusuf

Spigelman J on Lord Mansfield

It’s difficult to make a lecture on legal history sound interesting and entertaining. It’s even more difficult to imagine a judge successfully doing this.

His Honour Justice Spigelman, Chief Justice of the NSW Supreme Court, managed to comfortably achieve this requirement. His presentation to the Enlightenment Forum organised by the Centre for Independent Studies was a master-stroke of clarity, erudition and good humour.

His Honour focused on the enlightenment value that seeks to implement a culture of improvement through the application of reason. He said that no individual or society should be deemed sentenced by the Creator to remain at the same standard.

Spigelman J distinguished between reform and improvement. He illustrated his discussion by examining the life of one of England’s foremost jurists, Lord Mansfield.

English enlightenment was a more pragmatic affair than its counterparts in other parts of Europe. It focussed more on what works than on how the world should be. It was realistic, but at times too insular.

Lord Mansfield was an apparently rare entity - a Scottish Francophone. He didn’t share the insularity of the common lawyers of his day, especially in commercial matters. In his 30 year career, he developed English common law (especially in the area of property) in a manner that made English law consistent with developments in other parts of the world. He insisted that there must be freedom of contract and that contracts should be based on good faith.

Mansfield was in many ways a man ahead of his time. Many of the issues he addressed in his judgments – issues of delays and mounting costs to litigants - are still relevant today. Mansfield also was happy to refer commercial disputes to independent arbitrators. He was an interventionist judge, happy to actively participate in hearings as opposed to just leaving matters to the parties and/or their legal counsel. Indeed, many aspects of modern judicial practice (such as case management) can be traced back to Mansfield’s enlightened reforms.

Spigelman J cited an American judge Posner who once said that the law is the only discipline in which innovation is regarded as a pejorative concept. Lawyers prefer to speak of improvement as opposed to innovation. Yet Mansfield’s role in developing English commercial law represented both innovation and improvement.

The last time I read about Lord Mansfield was when I studied an undergraduate course in commercial law under Professor Mark Cooray. At the time, I found the entire development of the Sale of Goods Act rather boring. Spigelman J’s lecture might just revive an interest in the topic again.

Words © 2008 Irfan Yusuf

CASE NOTE: OH & S and staff car parking ...

In Health Services Union v Ambulance Service of NSW, President Boland J of the Industrial Relations Commission of NSW Sydney considered:

> whether a matter concerning health and safety of employees constituted an “industrial matter” under s6 of the Industrial Relations Act 1996 (NSW) which would trigger the NSW Commission’s power to arbitrate.

> whether protecting employees from injury should be extended to the employer subsidising secure parking for staff who choose to drive to work where the workplace is an area notorious for crime.

> the extent of any such subsidy.


In September 2006, the Health Services Union notified the Commission of an industrial dispute with the Ambulance Service about the safety of ambulance drivers and other staff accessing the Sydney Ambulance Centre (SAC). The Centre was located in the Sydney Technology Park in the inner-city suburb of Redfern, “an area notorious for crime”. Staff had no secure and dedicated parking area, and the Ambulance Service had received reports of staff being assaulted and their vehicles interfered with, especially at night. The Centre also operated as a 24 hour Ambulance Station.

Some 11 months prior to this, the employer had commissioned a risk management/OHS staff member to conduct a security risk assessment. That assessment showed a severe risk of staff being assaulted on afternoon and night shifts when walking from their car to the Centre. There was also a high risk of damage to or theft of cars parked in the street. The Ambulance Service requested more police patrols and offered a staff escort where requested. However, staff escorts were not always available.

After some conciliation attempts by the Commission, the Service offered staff access to 50 dedicated car spaces in the Sydney Technology Park, though these would be available on a user pays basis at a maximum of $76.15 per fortnight. The matter was further complicated by the relocation of the Aeromedical & Medical Retrieval Services Unit (MRU), also part of the Ambulance Service, from St George Hospital to the SAC. MRU staff had enjoyed subsidised secure parking of $2 per week at St George Hospital and said refused to relocate to SAC unless secure parking was available. The Ambulance service offered to subsidise the cost of secure parking in Sydney Technology Park. The subsidy commenced at 75% of the employee cost and decreased by 25% each six months, ending after 18 months.

An interim arrangement was put in place whereby staff would park at the Ambulance Service State Headquarters and then be bussed to the SAC. In November 2007, after numerous more conciliations, the matter was referred for arbitration.

The Union insisted that MRU staff receive the same subsidy as at St George Hospital, and that remaining staff should be given “secure parking … accessible safely to all persons required to attend for duty at the Sydney Ambulance Centre” at a cost of no more than $9.50 per week. Further, staff commuting by public transport be provided with an escort to and from public transport locations.

When the matter reached arbitration, the employer made a procedural point that the Commission may be impeded from making an award or order in the arbitration without the Full Bench sitting. The President of the Commission ruled the Commission was not so impeded. In particular, the President ruled that a matter concerning the health and safety of employees involving eliminating or alleviating the risk of harm to those employees was an “industrial matter” under s6 of the Act which would trigger the Commission’s arbitration power.

The Commission ruled that, as far as possible, any employer subsidy of parking should apply equally to Ambulance Service staff, whether original Centre staff or relocated MRU staff. The Commission found there was a severe risk of assault to staff walking to and from their vehicles parked in the street. This meant any measures for protection of staff by the employer include the Ambulance Service subsidising car parking. The amount of the subsidy would vary depending on the number of employees requesting secured parking. The Commission ordered such a subsidy be provided and set out the terms of the subsidy.

Ensuring employee safety can include provision of secured parking subsidised by the employer, especially where the employer’s premises are in an area known to be notorious for crime.
Health Services Union v Ambulance Service of New South Wales (11 April 2008)

Words © 2008 Irfan Yusuf

A new form of personal property?

The Australian Financial Review reported on Friday 18 July 2008 about some of the legal implications of the proposed emissions permit scheme.

Alex Abaxial writes ...

Emissions permits would create an entirely new form of personal property.

The story quotes a partner of Clayton Utz praising the proposal for not treating permits as mere licenses, instead opting for a situation where ...

you [can] do things like use it for security and to contract for equitable interests over it … [I]t becomes a free-flowing instrument within the Australian marketplace.

The story also reports about the impact of emission permits on fixed-price contracts. Companies are consulting lawyers “on ways to amend [their contracts] to pass price increases through to their customers” through the use of “carbon clauses” operating in a similar fashion to clauses used when the GST was introduced.

It will be interesting to see the extent to which Australian commercial and legal practice in this area is influenced by experience in the EU.

Words © 2008 Irfan Yusuf

EVENT: Launch of latest edition of anti-terror laws guidebook ...

I received the following e-mail from the good folks at AMCRAN ...

Dear friends,

You are warmly invited to the third edition launch of the publication series Anti-Terrorism Laws: ASIO, the Police and You.

This series of publications is designed to educate the community on their rights and responsibilities under Australia's counter-terrorism laws. It is presented in four languages: English, Arabic, Bahasa Indonesia, and Urdu. The third edition covers new areas of law introduced since the first edition in 2004, including the association offence, sedition, preventative detention and control orders. This publication is essential reading, and provides a concise, simple, yet thorough coverage of the laws that all Australians should be aware of and understand.

The booklets will be distributed at no cost at the launch, and will also be available from AMCRAN's website (http://amcran.org/) in all four languages after the launch.

This project would not have been possible without the generous funding support of the Law and Justice Foundation of NSW, the UTS Law Faculty and UTS Students Association.

When: Thursday
17 July 2008
Time: 10 am – 12 pm
Where: Lansdowne Room, Bankstown Town Hall, Cnr Chapel & Rickard Rds,
Bankstown

Speakers include:

Mr Peter Russo, Defence lawyer of Dr. Mohamed Haneef
Dr Zachariah Matthews, President, Australian Islamic Mission; Board Member, AMCRAN
Ms Marika Dias, Solicitor, Convenor of Anti-Terrorism Laws Working Group, Federation of Community Legal Centres (Vic) Inc.
Mr Geoff Mulherin, Director, Law and Justice Foundation

RSVP by Friday 11 July 2008 essential: amcran@amcran.org

For more information please contact Ayishah Ansari, Legal Convenor NSW, at legalconvenornsw@amcran.org.

We look forward to seeing you at the launch.

Yours sincerely,

Australian Muslim Civil Rights Advocacy Network (AMCRAN)
Australian Muslim Civil Rights Advocacy Network
PO Box 3610Bankstown NSW 2200
Tel: (02) 9708 0009
Fax: (02) 9708 0008
amcran@amcran.org

http://amcran.org

Here is the actual invitation card (click on it to view enlarged version) ...

CRIKEY: Tabloid journalists and the presumption of innocence

OK, I'm now going to try to make this blog a little more active. So I'll start with this entry published in Crikey today ...

Tabloid journalists and lawyers have a strange relationship. Tabloid journos often have little regard for the legal rights, privacy, presumption of innocence or reputation of (especially accused) persons they report on. So I found it quite ironic when a tabloid journo threatened me some years back with a defamation suit. S/he was unhappy with my description of his/her/its ridiculous reporting of a chap s/he claimed was a terrorist.

The chap was actually accused of keeping bomb-making materials in his house. The police had already ruled out terrorism-related charges. But for the journo reporting the incident, the accused was a Muslim who had framed Arabic calligraphy on his walls and a Koran and some religious books in his bookshelf.

Anyway, the point I’m trying to make is that some journos are quick to see accused deprived of their rights, without realising that their hysterical reporting threatens the rights of all of us. Journos included.

Rights that people have fought and died to defend over the centuries. Like the presumption of innocence, and the right to refuse to be interviewed by police. These rights form a key plank in our criminal justice system. In a liberal democracy, these rights form an important element of "The Rule of Law".

So when Ben Fordham accosted Belinda Neal and asked questions like "What have you got to hide?", he effectively suggested Neal’s exercise of a basic legal right was illegitimate. He basically said she must talk, if not to the police then to viewers of A Current Affair.

Now let’s put the shoe on the other foot. Let’s say Fordham or one of his camera crew were the subject of a police investigation for potentially assaulting Neal (as I hope they are), what would Fordham say if Neal suggested that he and/or his crew must submit to a police interview?

My guess is Fordham would cry foul and self-righteously claim political interference in the criminal justice system. Fordham might even instruct his lawyers to express their disgust at this political interference, both before the magistrate and the cameras.

Populist journos and politicians are crying foul over one Queensland judge’s decision to release convicted pedophile Dennis Ferguson after finding that media saturation had made it impossible for a jury to deal with the facts of Ferguson’s impending charges in a "dispassionate" manner, despite the weakness of the Crown’s case.

Instead of blasting the judge, tabloid journos and shock jocks need to consider how their own conduct is compromising our criminal justice system. These same shock jocks should ask themselves what would happen if they were accused of pedophilia or some other criminal offence. They should understand that even accused persons deserve human rights. After all, until they are convicted, they are innocent.

Tabloid media needs to understand the meaning of innocence. And before anyone accuses me of sounding like a typical criminal defence lawyer, allow me to disclose that my area of practice is employment and workplace relations law.

Copyright 2008 Irfan Yusuf