Perram J in top form … Cooking on the Central Coast … Employment law … Missing wages … Exemplary amateur conduct called into question … Assistance from a non-practitioner … Unhelpful … Beastly threats … Small case, big fry … Remarks sent to the Law Society … Janek Drevikovsky reports

This sorry fate befell Daniel Johnston, an unadmitted law graduate, who swooped in to aid his acquaintance, Tahlia Ross, in a Federal Court claim for unpaid wages. 

Perram’s judgment started breezily enough: 

“Sandwiched between Tuggerah Lake, Soldiers Point and Cabbage Tree Harbour, on the Central Coast of New South Wales, is a suburb called Norah Head. That suburb is home to a number of airy beaches, a picturesque lighthouse and various holiday facilities. Until recently, Norah Head was also home to Bombora Café …”

Ms Ross brought her case against Mr and Mrs Paea, proprietors of the Bombora Café, where she worked as a cook for about 15 months. 

During that time, she was underpaid in the order of $65,000, or so she claimed.  Neither Mr Paea nor Ms Ross had any representation, and Mrs Paea failed to appear, on the grounds of illness. 

During the hearing, Mr Paea filed a debtors petition with the Australian Financial Security Authority which rendered him an undischarged bankrupt. 

The effect of this, under the Bankruptcy Act, was that the proceedings were effectively stayed against Mr Paea, requiring leave of the court to press on. 

Ross told the judge she wished to proceed, and as Perram J said, “so here we are”. 

In the main event, Ms Ross prevailed, with an award of $17,583. 

But the matter was attended by “various procedural eccentricities” – not least the nature of Mr Johnston’s involvement. 

Though he had received a law degree “at some point in his life”, Johnston had not been admitted and never held a practising ticket. 

Nonetheless, the judge decided he would let Johnston help Ms Ross with her claim. He thought it would be useful to involve someone with legal qualifications, because he suspected:

“… that between them, Mr Paea and Ms Ross would have no idea what they were talking about …

“I have come to regret this decision,” HH added. 

“My impression of Mr Johnston’s capabilities as an unqualified industrial lawyer is that his estimation of his own legal acumen substantially exceeds my estimation. To be frank, Ms Ross has succeeded despite the efforts of Mr Johnston on her behalf. I found nothing he said to me of value. He was also to my observation rude to Mr Paea which was quite unnecessary and certainly unhelpful.”

The real problem was that Johnston held himself out to be a lawyer. So much was “apparent”, his Honour thought, from correspondence between the parties. 

“As discussed, I have been engaged to act on behalf of former employees of Bomborra Café … operating at Norah Head.”

On another occasion: 

“It is my intention to file for immediate orders restraining direct contact with my client should you fail to adhere to my request.”

Or again:

“My current client Ms Tahlia Ross, approximately 22-years-old worked for the business.”

And then there were the “improper threats”, which littered Johnston’s emails to Mr Paea:

“I have again been informed that you are studying a Law Degree. Please be advised that our civil claim against you will likely result in criminal charges brought against you by the Commissioner of Taxation, ASIC and the Federal Police. 

Please be advised that it is highly unlikely the Supreme Court will issue a practising certificate to you should any conviction be successful.”

He even threatened, horror of horrors, a doorstop by an ALP politician: 

“I note the State Labor policy is set to criminalise this conduct if elected in March. I would like to invite the sitting Member Mr Harris to have a discussion with Ms Ross on the doorsteps of her former employer with media present should he be interested.”

The judge raised these issues with Mr Johnston; he submitted that he had held himself out to be a lawyer; that all letters were sent at Ms Ross’s request; and that his conduct had been exemplary. 

“I am by no means sure of this,” Justice Perram said. He accepted that Johnston had leave to present submissions on Ms Ross’s behalf.  But that leave did not extend to representing himself as a lawyer or to making threats.  

HH noted that it is an offence to run a legal practice without the right qualifications. He resolved to send a copy of his reasons to the President of the Law Society, for further inspection. 

Ross v Paea trading as Bombora Café