Important witness in claim for Aboriginality found to be alive .. Federal Court corrects the record … How to get ahead – masterclass spiked … Energiser batteries implanted in Sam Hay KC … Another slow delivery from Jenni Hill J … Theodora reports
The applicant has had his visa cancelled by the minister on character grounds. He can’t prove his biological Aboriginal ancestry, but identifies as an Aboriginal Australian and desperately wants to stay in Australia.
You can imagine the screaming headlines if Lord Moloch’s hacks ever find out about it:
All in 70 point Bodoni Bold.
There is a wrinkle in the judgment that the fishwraps may have missed. Five days after the judgment was delivered a “table of corrections” was inserted. It read:
“In paragraph 10, ‘deceased by the time of the hearing’ has been replaced by ‘not called to give evidence at the hearing’.”
The reference is to a Yorta Yorta elder who supported the applicant’s claim of Aboriginal identity with a hand-written letter.
“The applicant provided other documentation in support of his application including an undated hand written letter from an Elder of the Yorta Yorta community, who was not called to give evidence at the hearing. That letter stated that the applicant was known to the Elder for “some 10 years …”
A Lazarene moment for the Yorta Yorta man, whose death at the hands of the Federal Court had been “greatly exaggerated”.
Austlii’s version of the judgment included the “table of corrections”, but Jade’s report still has him deceased.
The applicant Ashley Thompson, also known as Like Robins, was informally adopted at birth and arrived in Australia in 1998, aged five. He only met his biological mother on one occasion and has never known the identity of his biological father.
He has three children, but is not their primary carer partly because he was imprisoned for various offences commencing in 2010.
Thompson/Robins claimed the AAT did not have jurisdiction to make the determination under the alien power, and that it failed to identity, understand and evaluate that he was an Aboriginal Australian, that his ex-partner and mother of two of his children is an Aboriginal Australian, and so are those children.
He is unable to establish biological decent but claims to identify as an Aboriginal person, with close connections to the Aboriginal community with support from the Yorta Yorta elder.
The applicant’s “substantial criminal record” and “history of family violence” appeared to weigh heavily with the AAT in its reasons not to revoke the decision to cancel the visa.
McElwaine said that the tribunal did not properly consider Robin’s claim of Aboriginal self-identification by reason of his association with the Aboriginal community.
“The explicit failure to assess these claims when addressing the mandator considerations … bespeaks of material jurisdictional error by the tribunal.”
There is a “realistic possibility that a different decision could have been made” if these matters were considered.
Back it goes.
Thompson v Minister for Immigration
Other local bars were likely in on the wheeze as well. The “investment” to “scale your practice to new heights” was set at $790 plus GST per enrolee, tax deductible.
What would Owie Dixon or Gar Bar think of this? The March 28 session was titled “mastering solicitor client relationships” – a strange one for barristers – and for April 12, “the area of rainmaking and strategic networking in a post pandemic world”.
Sadly, we’re told that both shows have been “postponed”.
Could this be a sign of the times, where there are too many barristers with too few cases getting on and the dreaded solicitors are eating the bar’s lunch – leaving little spare change to invest in tutorials on pocket-moistening and getting ahead?
It’s a double pity because we won’t get to hear from scheduled speaker Brian Lee, a former senior clerk at 20 Essex Chambers in the Old Dart.
It’s the first time we’ve seen someone gonging themselves with the title “Former Senior Clerk”.
Back in 2013-2016 Brian was chairman of the niche and selective Institute of Barristers’ Clerks in the UK with a lifetime achievement award for services to lawyers.
Further he’s a qualified toastmaster, plays golf and hoots for Manchester United.
It wasn’t so long ago that the way to get ahead professionally was moistening the pockets of senior people over a few liquid ambers at the Leagues Club in Phillip Street.
And the record shows he’s busier than a one-armed piccolo player with the barbers’ itch.
A random selection of the epistles reveals Sam never misses a party, picnic, ball, opening, farewell, conference or chinwag.
The message from February 24 saw him that week at a meeting of the Police Informants Implementation Taskforce; a working group responding to recommendations from the Coroner; a meeting with Anne Ferguson CJ (discussing “topics of common interest”); farewell to a faithful Bar Council employee; drinks at the Essoign for speakers and guests at the LCA’s Commonwealth Law Conference; meetings with the Law Council; a party to celebrate the 60th birthday of List S; a meet and greet with the state opposition leader and the state shadow AG with discussion about the Human Source Management Bill.
Phew.
Sam reports that about 25 people “raised with me the content of these In Brief messages”.
“I’ve been struck by just how many people read them (and by how closely they read them). In the last three days alone, two current and former Chief Justices have spoken to me about recent In Brief messages …”
This mention of judges getting in touch is pregnant with ambiguity.
There’s scant evidence that other bar presidents go to the trouble of scratching out weekly epistles to the troops.
Here’s Sam’s most recent message (March 13), again jam-packed with a frantic round of presential activities.
Just as we went to press, Vic’s bar released proposed amended terms and conditions relating to the privacy of members’ emails, a.k.a “electronic environments”. Briefs are invited to provide feedback before Barristers’ Chambers Ltd implements the changes.
An email investigation arose last August following an offensive notice posted in Owen Dixon’s lifts. There was a hunt through barristers’ email subject lines by BCL, which hosts the bar’s’ email services.
Microsoft Purview Compliance Portal identified about 10 emails where the initials LGBTQMS had been recognised. One email was opened and an alleged offender identified.
The bar president at the time and the CEO of Barristers’ Chambers Ltd believed that the relevant terms and conditions allowed them to open emails.
Sam Hay said the question of who authorised the email search is “complicated”, but he promises it will never happen again.
See earlier missives, here and here.
From now on “electronic environments used by members are to be maintained in the strictest confidence and will only be interrogated under the compulsion or authorisation of law”.
That’s nice to know.
This is the sixth instance where we have had the miserable duty to report HH’s slow-coach deliveries.
See:
Delays, fees and rubbish removal
Morpheus arises
The latest is Mirabela Nickel Ltd v Mining Standards International Pty Ltd [No 5] – 166 pages of eye glaze dealing with a dispute about the circumstances that gave rise to an asset sale agreement.
Following termination of the agreement the receivers sold assets of the plaintiff to someone else. The defendant said the termination of the agreement was unlawful.
With reasoning in granular detail, Hill J was not persuaded that the termination notice was valid and so was unable to make the declaration sought by the plaintiffs.
She heard the case in December 2020 and the judgment arrived on March 3, 2023 – well outside the court’s three month time frame for delivery of first instance reasons.
It was wrapped with the usual boilerplate of well-worn reassurances that, despite not completing the reasons for her decision as “quickly as I would have liked”, her memory was crystal clear, she had a grip on assessing the evidence and everything was hunky-dory.
Heaven forfend that anyone thinks we’re picking on Justice Hill when there are others who drag the chain, even with simple interlocutory decisions – NSW Supremes we’re looking at you.
The NSW Judicial Commission has remarked, in another setting, that the head of jurisdiction “cannot entirely disinterest himself or herself from the pace of progress and the timeliness of disposition of the cases the court has to deal with. He or she has a responsibility to ensure that the Court provides “timely justice”.
Lawyers and litigants alike are saying that the powers-that-be in WA should crack the whip.