Monthly Archives: Jun 2015

Canberra Disability Rights Legal Service

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“Advocacy for Inclusion” launched the Disability Rights Legal Service on 18 June 2015.

One of the only of it’s kind in Australia, the service is seen as a natural extension of their advocacy work and aims to provide information for people with disabilities and advocacy through volunteer solicitors and partnerships with private providers.

The centre has named its priorities as addressing disproportionate representation in the prison system, high rates of child removal and restrictive guardianship orders.

The DRLC is located on University Avenue and are grateful for volunteer solicitors or civilians who can give up any amount of time to assist.

Read Chris Knaus’s article from the Canberra Times.

A Brief History of….Pecuniary Losses

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Time for another opportunity for myself to indulge in my amateur history and etymology.

Like all societies that have lasted their time, Roman society started as an agricultural society well before the empire, hedonism and numerous yawns for HSC students.

Every early society has understood value as an intrinsic thing well before there were minted coins with a specific value. The things these societies valued are not difficult to guess; life, family and livestock.

An abundance of livestock meant the survival of your family and community. Groups would fight for and defend their sheep and cows since at least the first domestication of sheep in around 10,000 BC and Cattle in about 8,000 BC. (Corrections are welcome)

Even the word “husband” did not originate as relating to marriage, but simply was a manager of animals. The “husband” was usually married as the head of a successful household. Hence the two became conflated.

That’s the context. Now for the exciting stuff.

Pecuniarius “pertaining to money,” from pecunia “money or wealth,” from pecus meaning “sheep”. In pre-monetary society, the most common form of barter involved sheep or other livestock. Hence in Roman society a pecuniary loss was a loss pertaining to your wealth, or sheep. The term morphed and stuck around and this is certainly where our term pecuniary originates from, but it is not the only example of this.

Further down the rabbit hole? you got it.

Caput is not just a great gangster word, it’s Latin for “head“…and you guessed it, head of cattle. Caput leads to Capitale which becomes anglicised as Catel and retains its reference to the amount of cows to this day. Obviously this became “Cattle” but interestingly the root was retained and “Capital” still exists alongside “Cattle” which evolved from it.

Keep going? all day son.

Fioh is old english and there are plenty of Celtic and other alternatives, but we don’t actually have all day so I’ll be brief. Fioh or Fehu (but that’s more Germanic Saxon) means cows. This evolved into “fee” and hence meant a collection of property. “Fee Simple” was a straight exchange of property for other (absolute ownership); fee simple came to relate specifically to pasture and now it exists in the system as relating to land. A “Fiefdom” became an area of land over which a party had exclusive licence to collect fees.

Sanskit, Gothic, Germanic and basically any society throughout Europe and the Middle East can trace the definitions of money, property or value directly to livestock. I’m sure it’s even more prevalent than these areas, but unfortunately my usefuless expired long ago. (once again, corrections welcome)

Will this information ever come in handy?…Probably not. But understanding the value and meaning of something usually involves understanding its context and importance. Money is the new livestock and losing it still means the same thing to most people that it did 10000 years ago, a loss of ability to provide for their family and community. Money is a very emotional subject and understanding the base human drive behind this is fundamental to understanding the emotions involved behind most litigation.

Supreme Court tuts Proactive Magistrate

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The ACT Supreme Court has warned Magistrates not to undertake their own investigations when deciding applications before the Court.

In Le Clair v Childs [2015] ACTSC 118 the Defendant was before Court, listed for hearing, after months of adjournments and having been set down for hearing a number of times previously.

The Defendant was brought up from the holding cells and was somewhat perplexed that his Legal Aid solicitor had not appeared to run his ABH assault charge. The Defendant claimed he had in fact been granted aid for the hearing but had refused to Legal Aid solicitor assigned to him on the basis that she had previously advised to to plead guilty to a different charge but that another was assigned to him.

The Magistrate, seemingly unhappy with the veracity of these claims, stood the matter down and apparently contacted a Legal Aid solicitor or the office who confirmed that they had granted aid but could not provide a different solicitor. The Defendant ran his own case and was subsequently found guilty.

On appeal, Justice Burns was seemingly not impressed with the investigations, whatever they revealed and having found that an oral application for an adjournment was on foot, warned the Court not to rely on anything that was not directly before it when deciding the application.

7. I want to make it clear that I do not suggest that magistrates are required to grant an adjournment every time such an adjournment is sought by an unrepresented accused in proceedings in that Court. Much will depend upon the circumstances of the case. However, what I want to make clear is that, in exercising the discretion whether to grant an adjournment, a magistrate is expected to act judicially and to abide by the rules of natural justice and also procedural fairness.

This is a tough one, there is no doubting the importance of the right of the parties to challenge anything the judicial officer seeks to rely on. But that being said, the ACT Magistrates generally have a hard go of it. They are the most expert Magistrates in the country and their jurisdiction is closer to a District Court or the old Federal Magistrates, on top of their local court style jurisdiction. They currently have the biggest backlog in the Territory and despite the constant repetitions of the Supreme Court about the need for quick, inexpensive justice in the Magistrates Court, they are increasingly under a caseload burden. When a Defendant is before the Courts, having been listed for hearing several times, applies for aid, is granted aid, fires aid and asks for another adjournment….it’s not too much a stretch to believe that about 3/4 of the Magistrates would have done the same thing.
Broad message? Remember to get anything you need to rely on into evidence.