NZ Supreme Court
Law Practitioners, certificate of character
NZ Law Society v Stanley [2020] NZSC 83 (17 August 2020)
Unsuccessful appeal from CA - Having had a career in business, S completed the necessary academic and professional qualifications for admission – NZ Law Society (NZLS) refused to give him a certificate of character essentially because of concerns relating to his history of criminal offending - including four drink driving convictions, and his attitude towards that offending - Without a certificate of character, S could not be admitted in the usual way – Instead led to contested HC hearing – HC said, in terms of the Lawyers and Conveyancers Act 2006 (the Act), S not a fit and proper person to be admitted – CA overturned HC decision - NZLS unsuccessful re staying CA judgment – S admitted and issued with practising certificate - NZLS later granted leave to appeal to SC – SC majority dismissed appeal – said no controversy regarding legal principles – Said fit and proper standard to ensure those admitted could be trusted to meet the duties and fundamental obligations imposed on lawyers - Obligations included upholding the rule of law - Fitness and propriety assessment focused on need to protect the public and to maintain public confidence in the profession- Had a protective, not punitive, purpose - Also involved considering whether applicant honest, trustworthy and a person of integrity - Where applicant had prior convictions, Court had to consider whether convictions remained relevant - Was fact-specific inquiry and the Court had to look at all the evidence to judge applicant’s present ability to meet a lawyer’s duties and obligations - Applicant had onus to show the standard met - Although the standard a high one, the Court should not lightly deprive qualified persons from the opportunity to practise law – Here majority said CA correct to say S a fit and proper person - When evidence viewed in the round, the concerns arising from S’s convictions not a controlling factor given his otherwise good character, including the fact that he had led a productive life - Although offending an obvious concern, not of a character that had a direct connection with legal practice - No suggestion of lack of candour or dishonesty - Further, there was a gap of some seven years since Mr Stanley’s last offence and offending not at the serious end of drink-driving range - Also relevant that both of the Courts below accepted the sincerity of Mr Stanley’s commitment to reform - Finally, majority drew an analogy with disciplinary context where practitioners who had committed similar offences had not been removed from the roll – Appeal dismissed.
High Court of Australia
Negligence, paramedic, professional opinion, standard of care
State of Queensland v Estate of the Late Jennifer Leeanne Masson [2020] HCA 28 (13 August 2020)
Successful appeal from Supreme Court for Queensland - On the night of 21 July 2002, M collapsed outside a friend's house in Cairns – P, an intensive care paramedic responsible for treating M observed that she was in respiratory arrest and had high blood pressure and a very high heart rate - He administered intravenous salbutamol, which like adrenaline acts as a bronchodilator – Initially M’s condition appeared to be improving - However during transportation to hospital her vital signs worsened - Officers switched to administering adrenaline but, by the time of arrival at Cairns Base Hospital, M sustained severe, irreversible brain damage due to oxygen deprivation - She lived in a vegetative state until her death in 2016 - Proceedings commenced on M’s behalf seeking damages in negligence and the claim survived in the hands of her estate- Trial judge said: (1) P considered administering adrenaline at the outset, as recommended by the QAS Clinical Practice Manual ("the CPM"), but decided against doing so because of the risks associated with using adrenaline on a patient with M’s high heart rate and blood pressure; and (2) in 2002 a responsible body of opinion within the medical profession supported the view that those presenting symptoms provided a sound basis for preferring salbutamol to adrenaline in the initial stage of treatment ("the body of opinion finding") - On appeal, the QCA said P failed to consider using adrenaline, as he mistakenly believed the CPM precluded him from doing so - Also CA said evidence did not support the body of opinion finding - Even if there had been such a body of opinion P had been aware of it, departing from the CPM by not administering adrenaline would still have amounted to a want of reasonable care - Having granted special leave to appeal – HCA restored trial judge’s findings - In two sets of reasons said trial judge's conclusion, that P made a clinical judgment not to administer adrenaline because of M’s high heart rate and blood pressure, was neither contrary to compelling inferences nor glaringly improbable – it should not have been overturned - Contrary to the QCA's reasons, decision not to administer adrenaline did not contravene the guidance in the CPM - Nor decision negligent, as it conformed with a responsible body of professional opinion - In concluding otherwise and rejecting the body of opinion finding, the QCA disregarded the evidence of expert witnesses - In the circumstances, P’s treatment did not fall below the standard of care expected of an ordinary skilled intensive care paramedic – Appeal allowed.
Employment law, paid/ personal carers leave
Mondelez Australia Pty Ltd V Australian Manufacturing Workers’ Union and ors [2020] HCA 29 (13 August 2020)
Successful appeal from Full Court of FCA - s 96(1) of the Fair Work Act 2009 (Cth) said "[f]or each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave"- Section 96(2) said employee's entitlement to this leave "accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year" -S 99, provided payment for leave taken calculated by reference to an employee's "ordinary hours of work" - S 55(4) said an enterprise agreement may only include terms not detrimental to an employee when compared to certain provisions of the Fair Work Act including s 96 - Mondelez Australia Pty Ltd ("Mondelez") employed T and McC - Under their enterprise bargaining agreement, each worked, on average, 36 ordinary hours of work per week - Worked an average of three 12-hour shifts per week - Mondelez credited them with 96 hours of paid personal/carer's leave per year of service - When they took paid personal/carer's leave for one 12-hour shift, Mondelez deducted 12 hours from their accrued leave balance - Over one year’s service, T and McC accrued paid personal/carer's leave sufficient to cover eight 12-hour shifts - They (together with the Australian Manufacturing Workers Union) argued that s 96(1) entitled them to paid personal/carer's leave sufficient to cover ten absences from work per year - Full FCA majority agreed, saying "day" in s 96(1) referred to "the portion of a 24 hour period that would otherwise be allotted to work" ("the 'working day' construction") – HCA majority rejected "working day" construction and instead held that what is meant by a "day" or "10 days" must be calculated by reference to an employee's ordinary hours of work - "10 days" in s 96(1) was two standard five-day working weeks – One "day" referred to a "notional day" consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Because patterns of work did not always follow two-week cycles, the entitlement to "10 days" of paid personal/carer's leave could be calculated as 1/26 of an employee's ordinary hours of work in a year – Appeal allowed.
Singapore Court of Appeal
Judicial review, capital punishment, execution method
Gobi a/l Avedian and anor v Attorney-General [2020] SGCA 77 (13 August 2020)
Unsuccessful appeal from HC - Appellants convicted in separate proceedings for drug-related offences and sentenced to death - While they awaited execution, Lawyers for Liberty (“LFL”) released a press statement (“the LFL Press Statement”) alleging that it had discovered that in the event the rope broke during an execution, officers of the Singapore Prison Service (“the SPS”) were trained to execute the prisoner by kicking the back of the prisoner’s neck - LFL claimed it received this information from a former SPS officer who was not identified (“the Witness”) - Appellants applied to commence judicial review seeking prohibiting order to stay their sentences (“the Prohibiting Order”) and a mandatory order directing the Attorney-General (“the AG”) and the Minister for Home Affairs (“the Minister”) to grant immunity from criminal and civil liabilities to the Witness so that he could give evidence (“the Mandatory Order”) - Application relied on LFL Press Statement and affidavit from their Malaysian solicitor in which he claimed he had met the Witness – R was the Appellants’ counsel - At a pre-trial conference, the Attorney-General’s representative told the court, “I am also instructed to state that we are expressly reserving all our rights against R (“the Statement”) - Subsequently, appellants applied for declaration that the Statement breached their right to counsel and a fair hearing - To their first application, the appellants also applied for an order that the court grant immunity to the Witness (“the Court Immunity Order”) - HC dismissed applications and the appellants appealed to CA – CA said no factual basis to grant leave to commence judicial review to seek an order to prohibit the executions as the appellants had only produced unreliable evidence in support of their allegations of illegal execution methods - No legal basis to grant leave to commence judicial review to seek orders to grant immunity from criminal and civil liability to the Witness as the AG had already declined to do so and court did not have the power to grant immunity - No breach of the appellants’ right to counsel as the right did not exist in the context of civil proceedings - In any event, counsel continued to act for the appellants without reservation – Appeal dismissed.