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The case law of lawyers bills in England, India, Australia, Singapore and Hong Kong

For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.

As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees.

Full story: https://sterlinglawqld.com/the-case-law-of-lawyers-bills-in-england-india-australia-singapore-and-hong-kong/

Further revelations of Public Trustee of Queensland’s gouging of estates

The Public Trustee of Queensland is a public body charged with managing the finances of some of the most vulnerable members of the community, including those lacking capacity and prisoners.

The ABC has now again reported on the Public Trustee, this time in relation to its mismanagement and fee gouging of estates.

Cora Whitfort appointed the Public Trustee as executor of her estate when she made her will back in 2011.  She passed away six years later in 2017.

It took two years  and cost the estate more than $20,000 for the Public Trustee to obtain probate.

Read more: https://sterlinglawqld.com/further-revelations-of-public-trustee-of-queenslands-gouging-of-estates/

Christian Porter loses appeal from restraint on Sue Chrysanthou SC

Former Attorney General Christian Porter has lost his appeal of a restraint against Defamation specialist Sue Chrysanthou SC representing him in his claim against the ABC.

Justice Thawley had ruled that there was a potential conflict of interest and the integrity of the judicial process and the due administration of justice required Ms Chrysanthou to be restrained. Furthermore, whilst Ms Chrysanthou had given evidence she did not recall any confidential information and that she no longer had emails received in connection with the meeting, Justice Thawley held that:

“However recollections are liable to being revived and there is nevertheless a risk of subconscious use of confidential information”

Full story: https://sterlinglawqld.com/christian-porter-loses-appeal-from-restraint-on-sue-chrysanthou-sc/

Ghislaine Maxwell gets 20 years in prison for sex trafficking crimes

Jeffrey Epstein’s long time girlfriend Ghislaine Maxwell was found guilty in December by a 12-person New York jury of five of the six counts she was facing, including sex trafficking.

Judge Alison Nathan of the United States Court of Appeals for the Second Circuit upheld Maxwell’s conviction on transporting a minor with the intent to engage in criminal sexual activity and sex trafficking of minors. However, Judge Nathan ruled that the three conspiracy counts Maxwell was convicted of were “multiplicitous,” and sentencing the convicted sex trafficker on all of them would violate the Fifth Amendment’s Double Jeopardy Clause.

Last week, Maxwell was sentenced to 20 years in prison in her New York sex-trafficking case for procuring teen girls for Jeffrey Epstein for him to abuse.

The Australian reported that:

“Before handing down the sentence, Judge Alison Nathan said Ms. Maxwell’s criminal conduct was far-reaching and a substantial prison term was necessary to deter others from exploiting underage victims.

“The damage done to these young girls was incalculable,” the judge said. She also imposed a $750,000 fine on Ms. Maxwell and ordered that she serve five years of supervised release after her prison term.”

Now, many are asking about the men who were involved in the international sex trafficking ring that went on for decades. Will they be brought to justice?

Full story:
https://sterlinglawqld.com/ghislaine-maxwell-gets-20-years-in-prison-for-sex-trafficking-crimes/

US Supreme Court gives back power to the people

The facts

In March 2018, the state of Mississippi passed the Gestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for a medical emergency or severe fetal abnormality but none for cases of rape or incest.

Republican Governor Phil Bryant said that he was:

committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal“.

He added:

“We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”

An abortion clinic named the Jackson Women’s Health Organization and one of its doctors filed a suit in Federal District Court the day the Gestational Age Act was enacted against various Mississippi officials, alleging that the Act violated Supreme Court precedents establishing a constitutional right to abortion. The District Court granted summary judgment in their favour and permanently enjoined enforcement of the Act, reasoning that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions” and that 15 weeks’ gestational age is “prior to viability.”

Mississippi appealed against the Fifth Circuit to the Supreme Court in June 2020, challenging the viability standard set by previous Supreme Court decisions and asking the Court to allow the prohibition of “inhumane procedures”.

Relevant law

The Ninth Amendment to the United States Constitution provides that:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Section 1 of the Fourteenth Amendment to the United States Constitution provides that:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Roe v. Wade (1973)

In Roe v. Wade, 410 U.S. 113 (1973), the US Supreme Court majority opinion in striking down Texas’s abortion ban as unconstitutional held that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.”

Roe v. Wade decided that a state’s right to regulate abortion was limited according to which trimester of pregnancy:

“With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”

“To summarize and to repeat:
100
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

101
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

102
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

103
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Planned Parenthood v. Casey (1992)

The subsequent case of Planned Parenthood v. Casey, 505 U.S. 833 (1992) resulted in a particularly divided Court.

The plurality’s opinion overturned the Roe trimester framework in favor of a viability analysis allowing states to implement abortion restrictions that apply during the first trimester of pregnancy, and the Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard.

However, the plurality emphasised that stare decisis had to apply because the Roe rule had not been proven intolerable:

“The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.”

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

Justices Blackmun and Stevens approved of the plurality’s preservation of Roe. Justice Blackmun, the author of Roe, argued for a woman’s right to privacy and again insisted that all non-de-minimis abortion regulations were subject to strict scrutiny.

Justices Rehnquist and Scalia dissented from the plurality’s decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided.

The Gestational Age Act

Mississippi’s Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018) provides that:

“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” §4(b).

US Supreme Court decision

Justice Alito held that the divisive issue of abortion properly belongs and should be given back to the people:

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997)”

“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.””

“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.”


Full story: https://sterlinglawqld.com/us-supreme-court-gives-back-power-to-the-people/

Lisa Wilkinson lawyers up after Logies speech

On Sunday, 19 June 2022, Lisa Wilkinson gave a speech about former Parliamentary staffer Brittany Higgins at The Logie Awards.

At that speech, Wilkinson suggested Higgins was a political problem for the government at the time, and praised and thanked Higgins effusively.

The issue was that Higgins was being praised for raising allegations of rape against Bruce Lehrmann, the man who is standing trial in relation to those same allegations in the ACT Supreme Court.

Furthermore, Wilkinson will be a witness at that trial.

Subsequent commentary, including remarks made on the popular morning radio program, “Jonesy and Amanda” also assumed Lehrmann’s guilt.

Compounding things, days before the Logie awards, Ms Wilkinson participated in a conference with the Director of Public Prosecutions and those appearing with him and was warned that her speech may cause the trial to be further delayed.

McCallum CJ was scathing about the effect of the speech and recent commentary on the case:

“What can be known is that, somewhere in this debate, the distinction between an untested allegation and the fact of guilt has been lost. The Crown accepted that the Logie awards acceptance speech was unfortunate for that reason. He also accepted that Ms Wilkinson’s status as a respected journalist is such as to lend credence to the representation of the complainant as a woman of courage whose story must be believed.

The prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated. The trial of the allegation against the accused has occurred, not in the constitutionally established forum in which it must, as a matter of law, but in the media. The law of contempt, which has as its object the protection of the integrity of the court but which, incidentally, operates to protect freedom of speech and freedom of the press, has proved ineffective in this case. The public at large has been given to believe that guilt is established. The importance of the rule of law has been set at nil…

The irony in all of this is that the important debate as to whether there are shortcomings in the way in which the courts are able to deliver justice in sexual assault cases, to complainants and accused persons alike, has evolved into a form of discussion which, at this moment in time, is the single biggest impediment to achieving just that.

The delay of the present trial will not serve the interests of anyone. Contrary to popular assumption, it does not serve the interests of the accused, for whom the prospect of conviction and sentence must weigh heavily as an immobilising force in his life. He has said through his lawyer in the present application that he has no interest in delaying the trial but he wants it to be a fair trial, and I accept that that is the case.”

McCallum CJ

As a result, the trial date of 27 June was vacated.


Full story: https://sterlinglawqld.com/lisa-wilkinson-lawyers-up-after-logies-speech/

UK tribunal holds calling a man bald is sex harassment

The facts

Tony Finn was employed by beer barrel stopper maker British Bung Company as an electrician between 22 September 1997 and 25 May 2021.

In late July 2019 an altercation between Finn and Jamie King occurred. Finn alleged of that incident that:


“I was working on a machine that I had to cover awaiting specialist repair. The covers were taken off, and it was apparent that Jamie King had done this. When I spoke to him about it, he began to call me a stupid old bald cunt and threatened to ‘deck me.’ Fearful for my personal safety I retreated to the nearby office of Ady Hudson, supervisor. Jamie continued his tirade of threats and abuse at the office door.”

Later, Finn claimed he had been called a “fat bald old cunt” by King in that incident.

A further incident on 25 March 2021 occurred in which King again threatened Finn.

Because a subsequent statement by Finn was prepared on West Yorkshire Police letterhead paper, Finn was dismissed on the grounds that he had “deliberately provided a witness statement which falsely suggested on its face and by its content, that it had been made to, and taken by, West Yorkshire Police in connection with the investigation of an alleged crime”.

In dismissing Finn with immediate effect, British Bung Company wrote to him that:

“We do not accept your explanation, or that you acted in good faith, or that there was merely an oversight. You did not apologise. On the contrary, you said that you did not think that you had done anything wrong… We are satisfied that your actions amount to gross misconduct justifying your immediate dismissal. In light of your failure to apologise, and insistence that you have done nothing wrong, we are satisfied that it would be impossible to have trust and confidence in you as our employee.”

British Bung Company letter to Finn

Finn was dismissed from his employment without notice despite until March 2021 having an unblemished disciplinary record over nearly 24 years of service.

Tribunal’s decision

The Tribunal panel, headed by Employment Judge Brain, found that Mr King did call Finn a “bald cunt” and that the word “old” did not feature. The Tribunal also found that King did threaten Finn with physical violence, rejecting King’s denials:

“We can attach no significant weight to Mr King’s version of events. Having received a warning from the respondent about the July 2019 incident it is unsurprising that he gives an account in which effectively he denies the use of threatening words or behaviour towards the claimant.”

Employment Judge Brain

The Tribunal found that the reason for the dismissal was the Finn’s conduct in presenting British Bung Co with a witness statement on West Yorkshire Police headed notepaper and which gave the appearance of matters having become a police matter. The Tribunal was satisfied that the health and safety reason and the protected disclosures were not the reasons for the dismissal.

Because Finn was led to believe that no decision would be made by British Bung Co pending hearing from the West Yorkshire Police with the outcome of their enquiries, only for his employer British Bung to dismiss him only two working days later, it was held good faith was lacking in British Bung’s disciplinary hearing which was not cured on its internal appeal.

The reason why this decision made headlines was due to the Tribunal’s finding that Mr King‘s comment amounted to harassment under the Equality Act 2010 because it targeted a protected characteristic, namely his sex:

“Plainly, some words or phrases would clearly be related to a protected characteristic. Where the link is less obvious then Tribunals may need to analyse the precise words used, together with the context, in order to establish whether there is any negative association between the two.

In our judgment, there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. Miss Churchhouse was right to submit that women as well as men may be bald. However, as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex. (In contrast, we accept that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age)…

it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male. Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men. The Tribunal therefore determines that by referring to the claimant as a “bald cunt” on 24 July 2019 Mr King’s conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating etc environment for him, it was done for that purpose, and it related to the claimant’s sex.”

The complaint of harassment relating to sex arising out of the incident of 24 July 2019 therefore succeeded.

The claims that Finn was unfairly dismissed upon the grounds that he made the disclosures of the incidents of July 2019 or 25 March 2021, or for the health and safety reason, failed. However, the claim that Finn was unfairly dismissed pursuant to sections 94 to 98 of the Employment Rights Act 1996 succeeded because of the lack of good faith by British Bung Co in respect of the manner in which Finn was dismissed.

Full story: https://sterlinglawqld.com/uk-tribunal-holds-calling-a-man-bald-is-sex-harassment

Supreme Court banishes Satan from Queensland classrooms

The Queensland Supreme Court has effectively refused to allow the Noosa Temple of Satan to provide religious instruction to children.

The Noosa Temple of Satan is an unincorporated association preaching Satanism in Queensland.

The applicant, Trevor Bell, is a member of the Noosa Temple of Satan.

In March 2021, Bell and Robin Bristow, a fellow member of the Temple, applied for approval to deliver Satanic religious instruction at four Queensland State schools. Their application was refused on the ground that the Temple “has no entitlement to provide religious instruction” because it “is not a religious denomination or society for the purposes of” s 76(1) of the Education Act.

Bell sought a statutory order of review in relation to that “decision” under Part 3 of the Judicial Review Act 1991 (Qld) and, further, orders setting the “decision” aside along with a declaration to the effect that the Noosa Temple of Satan is a religious denomination or society for the purposes of s 76 of the Education Act.

Read more: https://sterlinglawqld.com/supreme-court-banishes-satan-from-queensland-classrooms/

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