Review: Law and Popular Culture in Australia

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Law and Popular Culture in Australia, de Zwart et al eds., 2015, Lexis Nexis, 1st ed, Chatswood

Art holds up a mirror to society. The way that lawyers and the profession are portrayed in popular culture influences both the law and how the public interacts with it.

This is the premise behind “Law and Popular Culture”. Have you ever wondered about the principles of natural justice at play in a Zombie apocalypse? What the Wolf of Wall Street says about government financial regulation? and does a loveable rogue like Rake make the public think lawyers will bend the rules given the right circumstances?

Law and Popular Culture is not a work that will assist in general practise. However its contents are extraordinarily interesting to practitioners and fans of popular culture alike. The depiction of lawyers in works of fiction affects the public perception more so than lawyers often wish. If heeded, the understanding of the interplay between the public perception and fictitious depiction can assist a practitioner in understanding their clients expectations and pre-conceived notions of the way that practitioners operate.

In every depiction of the inevitable zombie apocalypse, the survivors choose certain laws to survive whilst others fall to the wayside. As a mild example, planning laws are obviously ignored to allow survivors to barricade their residence and often concepts such as provocation or self-defence hold up a bit better during times of extreme crisis but are still treated more flexibly.

This work is the only I have ever encountered that has compared the work of Plato (“Justice is an objective more valuable than masses of gold”) to the philosophy of
Dr Hibbert where the “smartest have no power and the stupidest run everything”. The U.S. conceptions of law and justice inevitably influence public perceptions through their cultural dominance but this text does give Australians credit generally for realising that US pop culture works are a tad more prone to being overly dramatic.

Law and Popular Culture also explores more realistic issues such as how the recently expanded data collection laws mesh well with pop culture comparisons like Orwell’s “1984” or prevention and crime profiling fits with Phillip K Dick’s “Minority Report”.

Law and Popular Culture is more of an anthropological study of law than a useful practise guide, but none of that diminishes the fact that it is an immensely interesting read.

 

McCarthy Appointed to ACAT

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Local Barrister Geoffrey McCarthy of Blackburn Chambers has been appointed as a Presidential member of ACAT with a term to expire in December 2022.

Along with the appointment of Mr McCarthy, the Attorney-General announced the appointment of Mary-Therese Daniel as a Presidential Member and Robert Orr PSM QC and Professor Peta Spender were appointed as acting presidential members.

Geoffrey McCarthy worked with the ACT Government Solicitor until he joined the bar 12 years ago and the Attorney-General has cited his strong community focus and strong leadership abilities as key attributes that will assist him in performing his Presidential duties.

Mr Orr, Ms Therese-Daniel and Professor Spender are currently on the ACAT and the re-appointments until 2022 and 2023 respectively are considered a show of confidence in their previous performance in the role.

As the Tribunal aims for quick and cheap delivery of justice outcomes, it regularly relies on its Presidential Members to step in to handle larger and more complex cases during times of greater case load.

Read the AG’s press release here if so inclined.

 

Uni Pub Development Hampered by Payments Dispute

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Uni Pub has faced a legal challenge relating to the development of its ground level expansion into the next door premises.

A plumber working on the development has made a claim under s15 of the Building and Construction Industry (Security of Payments) Act 2009 (ACT) (SOP) alleging unpaid work of ~$195k out a total contract for $686k which included additional variations not part of the original contract and disputed by Uni Pub. The case is here.

The Payment Claim

Mr Gelonese, the director of VG Enterprises was a plumber employed by Uni Pub to perform the work for the expansion of Uni Pub on the ground level into Tamar House, located next door.

VG filed a claim in the Magistrates Court in Feb 2015 for ~$72k. (Next listed Jan 2016.) On application from VG and seperate from the Magistrates Court action, on 24 July 2015 an adjudicator accepted an appointment to determine a claim of ~$195k outstanding under the SOP. This amount appeared to include the ~$72k previously claimed. Importantly, under s 15, a claim under the SOP must relate only to work performed within the last 12 months.

The SOP came into effect in 2009 as a stop-gap protection to ensure that contractors could claim funds owed to them without resorting to the courts and the associated expenses. The 12-month limit exists to make sure that the function of the act as a rapid resort does not unfairly prejudice defendants from having to respond quickly to aged claims.

The adjudicator awarded the amount despite claims from Uni Pub that none or little work was performed within the preceding 12 months.

Judicial Review

Uni Pub applied to the Supreme Court seeking a determination that the adjudication was invalid on the basis of the 12-month bar. The question of the 12-month bar rested on whether VG could show that any work was completed following the termination of the contract.

Associate Judge Mossop heard evidence including from the site manager, Uni Pub management, Mr Gelonese and a quantity surveyor who assessed the value of the work performed following the termination.

Included in the evidence were unverified timesheets from the plumber detailing thousands of dollars of work which the Court found could not be relied upon with any accuracy and appeared to be prepared by Mr Gelonese’s wife but it was not made clear what primary data she was drawing on.

Importantly, there was nothing signed including the original work contract, though this was not in contention, nor the supposed variation to the contract which brought about the additional amounts. Evidence that the contract was terminated orally in May 2014 was not objected to by the Defendant’s solicitors despite clearly being hearsay. It was the evidence of Uni Pub that no employees of the defendant attended the site after termination.

Uni Pub hired a quantity surveyor to assess the remaining work to allow them hire a new plumber for the remaining $86k worth of work. A second report by the surveyor concluded that approximately $3,500 of work was performed since the termination that could not be attributed to the new plumber.

Finding

The quantity surveyors evidence was key and appeared to corroborate that version of events given by Uni Pub. The assessment that there was $3,500 unaccounted for work also appears to mesh with the statements made by VG that his staff did attend the site and perform some work without coordinating with Uni Pub, though the $3,500 is well short of the claimed $195k.

Mossop AsJ found that little or no work was performed since the termination in May ’14 meaning that the claimed amounts of the arbitration were not performed within the last 12 months and therefore the arbitrator had no jurisdiction to make a decision.

This effectively kills the claim and although there is still the Magistrates Court claim on foot, I’m sure that Mossop AsJ’s reasons will be closely considered by the parties when determining the most effective course of action (i.e. dropping it, with an agreement as to costs).

In its reasons, the Court noted that the plumber was as generic as possible in giving his responses and could not point to any particular work, instead identifying “just general works” which is highly unusual for such a large claim. Most professions can usually point to some sort of concrete accomplishment in exchange for $195k, but I would be willing to accept that challenge.

Comment

There were a few quirks with this matter that seemed to paint the plumber as heaps a little dodgy. Included in the evidence from VG was part of a conversation he secretly recorded when he showed up at a Uni Pub manager’s house unannounced asking him to sign invoices and quizzing him about the remaining payments. One might assume that the tendering of only part of a conversation recorded without the knowledge of a person would usually imply editing, seeing as it is pretty difficult to selectively record without the subject noticing (though I’ve never tried, ok once, but it didn’t end well). Unlike NSW, the ACT has not explicitly created an offence for secretly recording a conversation and also it is unclear whether tendering as evidence would count and publication.
(See s 11, Surveillance Devices Act (NSW))

VG appeared pretty lucky to get off without a harsher finding. Mossop AsJ was linguistically lenient with his characterisation of the evidence of VG; generously “preferring” the evidence that “suggested” that the timesheets did not “accurately record the time”. sigh.