Twelve tales from 12 months of pro bono tenacity

Fifteen months with lawyers in your corner really can change someone's life.

Our client is a man in his 40s and a disability pensioner. His adoptive father sexually abused him throughout his childhood. Although now estranged from the abuser, the existence of the adoption order continued to have a significant effect on our client's mental health and wellbeing. He had tried to bring an action on his own in 2013 to discharge the adoption, but the process was too traumatic. He was hospitalised and had to abandon those proceedings. We obtained leave in 2018 to continue the earlier application. Those proceedings required us to serve the application on all parties to the adoption. We organised an investigator to track down our client's adoptive mother and father, as well as his birth mother and father.

In March this year, the Supreme Court ordered that the adoption be discharged. We also secured an order which allows our client to bring a future application for funds out of his adoptive parents' estates when they pass away, despite no longer being legally considered their "child". We believe that this type of order is the first of its kind to be made in Australia or any other common law jurisdiction. It really is an incredible example of the power of pro bono representation.

We worked for three years to achieve success for our client before the High Court in February.

Our client lives in a property provided by an Aboriginal Community Council. His home was in substantial disrepair, and he wanted the Council to undertake the necessary repair work.

We argued that the Community Council has obligations under the Residential Tenancies Act to keep its leased premises in a reasonable state of repair. The Community Council said that the Residential Tenancies Act did not apply to a lease on Aboriginal land.

Our client was not successful before the Court of Appeal, but we persevered, and secured a 6-1 decision in our client's favour before the High Court.

The majority opinion noted that for the Community Council to argue that it is not subject to standard residential tenancy statutory protections:

… is to argue against the equal application to all … of laws calculated to preserve the health, safety and dignity of tenants.

The decision means that dozens of residents of this Aboriginal Community who lease property from the Community Council (and potentially many thousands of residents around Australia) now enjoy the same protections as any other tenants under a residential tenancy agreement, and have a clear path to obtain orders to repair their homes and obtain compensatory damages.

We know that domestic violence is not a private issue. It impacts the home, the community and the workplace.

Employers can play a positive role by developing policies for safe work places, free from violence, harassment and bullying, and supporting survivors of domestic violence. There are some great examples of employers taking steps to support employees experiencing domestic violence.

This is not one of those great examples.

Over 18 months, 10 lawyers and paralegals dedicated 1,285 hours fighting to enforce the rights of an employee who had survived partner violence both at home and at her work.

Our client and her partner worked at the same place. Our client suffered extensive domestic violence during and after the relationship. On one occasion, her partner attacked her in the workplace, during work hours. Following that attack, her partner continued to be present in the workplace and was even used in the workplace's promotional materials.

When our client complained that his presence meant that she did not feel safe at work, her employer moved her to a different location, which meant that her hours changed and she no longer received penalty rates. So - she was moved, and was now being paid less.

Our client experienced PTSD after the attack. The employer did have a domestic violence leave policy, but they refused our client's request to access this leave. Her only choice was to take long service leave. She brought a workers' compensation claim. This was contested by the employer and denied by the insurer.

We commenced general protections and breach of contract proceedings in the Federal Court and sought a review of the decisions denying the workers' compensation claim.

In mediation, we obtained a confidential settlement payment for our client, which encompassed every benefit she was entitled to, including retrospective domestic violence leave. In addition, she will now receive workers' compensation.

On the settlement day, our client cried and told us that we had "changed her life".

Fighting for compensation for a client who has been trapped in forced labour takes a long time.

We act for a client who was born in Iran and has little English. In 2013 a local doctor who was also from Iran, invited our client to work in his new Persian pastry business. For the next four and a half years, our client worked 104 hours a week, for no pay.

Why would anyone work 7 days a week without pay? Because they were frightened and trapped.

Our client has diabetes and a chronic pain condition. His doctor employer supplied him with (sometimes illicit) drugs for pain relief. Whenever our client suggested he was going to leave the business if he did not get paid, the employer threatened him. This included threats that photos and video of our client taking drugs would be turned over to the police in order to send our client to gaol.

The employer and his wife now await trial on criminal charges of conducting a business using forced labour. At the committal hearing, it was alleged that the employer had supplied drugs to many of his workers, almost all of whom were Iranian migrants and refugees with little English.

In October Clayton Utz filed separate proceedings in the Federal Circuit Court, seeking $672,000 in unpaid wages, as well as a series of penalty orders under the Fair Work Act.

It is hard to imagine what our client had to endure just to be able to turn up each day to work.

Our client was born in Kenya, and worked as a factory storeman. During 2016 and 2017, he faced a nasty group of co-workers, who left toy golliwogs and bananas on his desk, made monkey noises when he walked past, told our client that he was not Australian, suggested that he was part of an "African gang" and a terrorist, and left notes on his desk which gave links to white supremacist websites. The employer seemed unwilling and incapable of dealing with our client's complaints.

Our client toughed all of this out, because he needed a job. This had an increasing toll on his mental health. Eventually he was diagnosed with depression, was under the care of a psychiatrist, and was unable to go to work.

We filed race discrimination proceedings, and were able to resolve the case at conciliation. We got the employer to pay our client $80,000, and to provide an apology.

Our client has now left the job, but our resolution permits him to continue separate workers compensation proceedings for the wages he lost after his psychiatric injury had rendered him unable to go to work.

After her relationship ended, our client visited her ex-partner's caravan to ask him to remove his belongings from her house. Without warning, he attacked her, repeatedly punching her head. Our client escaped and went to hospital for emergency treatment. Her eye socket was fractured and required immediate reconstructive surgery, and she suffers ongoing psychological injuries as a result of the attack.

Although she reported the matter to the police and identified her ex-partner, our client declined to provide a police statement. Why no statement? Because she was scared. Scared of reprisals from her ex-partner, and scared of what her new partner might do. (He was also violent). The police reassured our client that she could make a statement in the future if she wanted to do so.

Our client's experience is not uncommon. The Australian Bureau of Statistics reports that 80% of women who experience partner violence do not contact the police about the violence.

Years later, our client heard that her ex-partner was in prison. This gave her the confidence to go back to the police to make a statement about the attack. The police refused, saying that there was no "new" information to investigate.

Last year, we helped our client apply for victim's compensation. This year, our client found out that her application for compensation had been refused. One of the reasons given was that she had not provided a statement to police, which had "prejudiced the police investigations". Even worse, the compensation assessor decided that there was no basis to accept our client's explanation that she was scared of her ex-partner when she first went to the police. The assessor used the remarkable logic that our client couldn't have been scared, because she had gone to her ex-partner's caravan. The assessor seems to have overlooked the fact that our client was not scared of her ex-partner until after he had assaulted her.

The assessor also wrongly assumed that our client only contacted the police the second time, so that she could make a victim's compensation claim. That was not true - our client had contacted the police as soon as she found out that her ex-partner was in gaol, and before we had given her any advice about the possibility of victim's compensation.

It should not be this difficult for a woman who has been severely injured by domestic violence to pursue her rights.

We are now helping our client appeal the assessor's decision to the District Court and are fortunate to have a CU alumni acting as pro bono counsel. If our client is successful, she is not likely to receive a large amount of money, but we hope that perhaps some of her faith in the justice system, and in humanity, may be somewhat restored (along with our own).

It took 30 of us, working over more than two years (including at a three day hearing before the Supreme Court), to prevent a terrible example of elder abuse.

Our client's son was trying to force the sale of her home to him under a mortgage to himself, which he had arranged for her to execute. This was a huge case, with enormous personal consequences for our client. She lives alone, is a disability pensioner, and has no assets other than her home.

In 2017 the son organised for his mum to sign 94 pages of documents which he had prepared (and which she could not read). These included a Deed which said that she owed him more than $1.6 million, and a mortgage in favour of him over her home. The mortgage was based on the alleged debt. It was for more than double what our client's house was worth. (Spoiler alert - our client had not borrowed $1.6m from her son).

As a pensioner, our client had no ability to repay a $1.6 million dollar loan, whose monthly interest instalments alone were around $7,500 each. When naturally she defaulted on the first instalment, the son applied to the Supreme Court to try to force the sale to him of his mother's house.

At the same time that he was suing his mother in the Supreme Court over $1.6 million of alleged debts, the son simultaneously was running two Local Court proceedings against her as well. He had also conjured up a Security Interest of Personal Property (SIPP) Agreement, which had been registered over all of his mum's personal property, and which he routinely threatened to enforce.

The Supreme Court found that the $1.6 million debt did not exist, and that there was no good reason for our client to have entered into a mortgage for that debt. She had not done so freely. Our client's execution of the various debt documents was the result of the influential position her son held over her and the pressure he placed on her. The Court stated that our client's signing of the documents was "truly the result of a fear of what might happen between her son and herself if she did not go ahead". The emotional pressure placed on her was unfair, and she had been "vulnerable to that type of pressure, and in the circumstances was not able to fully protect her own interests".

The 94 pages of documents were held to be unjust, the son's claim was dismissed, and he was ordered to provide an executed Discharge of Mortgage.

Despite a comprehensive Supreme Court victory, there were the remaining questions of actually getting the mortgage discharged, rescinding the SIPP Agreement, and ending the other Local Court proceedings against our client. It took us a further four months to negotiate a Deed with the son.

In so many ways, the son is the unluckiest man in the world. There is no way that he could have foreseen that his mother would talk through tears to a counsellor at a Women's Health Centre about what was happening to her, and that they would put her in touch with a community legal centre, who would in turn refer her to the Pro Bono Practice at Clayton Utz, who could then brief two outstanding barristers, for free.

Collectively we formed an immovable object in the path of an appalling plan by a son to steal his pensioner mother's home out from under her. Our client's thank you card reads:

When you opened the door of your firm, you also opened your hearts and extended your hands. You were like angels sent down from heaven to help me.

Imagine you landed a dream job in Australia, with your employer sponsoring your 4 year visa to stay, with the prospect of permanent residency at the end. Now imagine all that being destroyed when you are sexually assaulted and harassed by your supervisor, one month into your new role. This is what happened to our client, in a matter we have been running for two years.

Not only did our client have to sit next to her assailant every day at work, but she also had to endure a workplace culture where lewd messages were routinely posted on the company’s WhatsApp group, and a colleague sitting across from her gave leering looks and sent obscene text messages.

Our client endured the discomfort and humiliation for months, as she wrestled with whether complaining would cost her a job and her visa.

She was right to worry.

When our client finally went to the boss to say that she could no longer work there because of the assault and the harassment, the employer was initially very supportive. The boss encouraged her not to resign, and offered counselling support, as well as suggesting working from home. However once she was referred to us by Legal Aid for some advice about her workplace rights, things changed quickly.

The employer's immediate response to our initial letter asking that correspondence came to us while the client was off work seeing a counsellor, was to say that our client had already resigned and that the employer would now notify the Department of Immigration that she was no longer entitled to a 457 visa.

With no alternative job and no visa, our client was forced to leave the country while she considered her next move. At this point, it would have been perfectly understandable for her to return to her home country and the support of her family. Instead, our client proved more tenacious than her former employer could ever have imagined. She reapplied for a work visa and eventually returned to Australia with another job.

It is hard to think of a more egregious example of an adverse action under the Fair Work Act – terminating an employee because she had sought advice about sexual harassment and sexual assault. What makes it even more remarkable is the way the employer’s actions have completely up-ended our client’s life plans. While she was out of the country, Australia's work sponsorship immigration laws changed, so that our client is no longer eligible to apply for permanent residency.

While we have settled with the two individual perpetrators, our client is continuing a Federal Circuit Court claim against her former employer. They have thrown everything at our client – substantial delays in filing evidence, lengthy emails alleging professional misconduct on our part when seeking to get them to stick to the Court timetable, and even a novel cross-claim alleging our client actually owes them money. Despite all this, our client has stood firm and refused to back down. She has a hearing set for March 2020.

Sometimes pro bono representation makes all the difference.

A confession from the Pro Bono team. When this matter was referred to us, we thought there was no way that we'd ever recover our client's money. It was wrong of us to discount the tenacity of our lawyers.

Our client was very vulnerable. He was unemployed and living in a boarding house. When his partner died, our client inherited some money. He made the mistake of talking at the boarding house about coming into money, and four days after he received the inheritance, the boarding house property manager had talked our client into giving that money over to him, to buy a locksmith's business where our client would be employed full-time.

Once our client had handed his inheritance over, the would-be business partner disappeared with the money, and no business or employment eventuated.

We were able to get an order for substituted service, so that our client could commence Supreme Court proceedings in the property manager's absence, to recover the funds. Once those proceedings were on foot, the other side miraculously reappeared. We were then able to negotiate a resolution, which saw judgment entered for our client and the repayment of $100,000 by the conman.

Sometimes you wish the other side would put as much energy into actually paying the damn debt as they do in avoiding the Court process.

We have acted since December 2015 for 19 Mongolian clients who were tricked as international students into working for free for short periods of time as cleaners. The dodgy employer (or contractor, as he tried to style himself) counted on our clients' lack of English, unfamiliarity with their legal rights and the relatively small amounts of money involved with each student, as being enough to get away with this fraud. That plan didn't work.

We did execute a Deed to have the money repaid, but the scammer missed the first agreed instalment payment. We then filed proceedings in 2017 in the Local Court to enforce the Deed, but our friend did not respond to the claim. Instead, he kept contacting us on multiple occasions to assure us that the money was about to be paid. No money was ever paid. In May 2018 we received default judgment for $18,477.

With the default judgment order, the enforcement fun began - with continual (and ongoing) evasion of court dates. We issued examination notices to the defendant, requesting details of his asset and liability position, to which again he did not respond. Earlier this year we obtained examination orders which required the defendant to attend the Local Court to be examined as to his assets and liability position. When he failed to show on a third occasion, we got an arrest warrant issued(!) in August 2019. The Sherriff then arrested the defendant and examined him, and we were provided with the results of the examination in October 2019.

Now that we have solid information about the defendant's asset position, we will proceed to enforce the judgment debt by issuing a writ for the levy of property, a writ for a garnishee order and potentially filing bankruptcy proceedings in the Federal Circuit Court. Hopefully our clients will finally see their money in 2020 (or maybe acquire one of the $8,000 worth of watches he has listed in his asset pool). Clayton Utz - we never give up.

Sometimes our work might not impact anyone's life beyond our client. At other times, when we do law reform work in conjunction with our community partners, we can impact the way that the law affects the lives of many vulnerable people.

This year, multi-office teams have provided key pieces of legal research for policy submissions on behalf of Justice Connect one of our favourite and most effective social justice organisations working to help to close the ‘justice gap’ in Australia. These are significant pieces of work. They are part of Justice Connect's model of strategic advocacy, which builds on the collective law firm pro bono community's case work experience (including our own), to drive policy reform for some of Australia's most vulnerable people.

The first project resulted in Justice Connect's "Better Aged Care for all" submission to the Royal Commission into Aged Care Quality and Safety. The submission's policy recommendations were informed by case work from Justice Connect's Seniors Law service. They focussed on State and Territory governments:

• developing and delivering user-centred strategies to encourage future planning, especially the use of family care agreements, which will help to manage the intergenerational transfer of wealth; and
• investing in expert legal help for older people at risk of abuse, integrated into settings where clients can access early and preventative help.

You can read the submission here.

Our second project helped to produce Justice Connect's "Creating a fairer and stronger community for Victorians experiencing mental illness, homelessness & housing insecurity" submission to the Royal Commission into Victoria’s Mental Health System. This submission shared case studies and insights from twenty former Homeless Law clients, and made seven recommendations. These focussed on the importance of safe and secure housing to sustain mental health and improve mental health recovery, along with suggesting strategies to reduce the criminalisation of people experiencing mental ill-health and homelessness.

You can read the submission here.

Our current research project for Justice Connect looks at the unmet legal and non-legal needs of prisoners post-release, with a view to developing a best practice model to meet housing, health, access to social security, employment, education and rehabilitation needs. The eventual report will build upon the work of the Closing the Revolving Door Project and the casework history of Homeless Law over 18 years.

Some matters can make you ashamed of people in our profession.

Our client is 80 years old and on a carer's pension. In 2015 she attended the Court with her grandson, who faced criminal charges.

On the morning of the hearing, her grandson's law firm asked our client to stump up the fees for their appearance in Court. She managed to scrape together a few thousand dollars in cash from her savings and some friends.

When the lawyers received the cash, they got our client to sign a single sheet of paper, and explained that "you need to sign this, it's just to say that you're paying the money". Our client understood that she was acknowledging payment of that day's legal fees.

Three years later, our client received a bill from the law firm for $142,000. This was soon followed up by a Statement of Claim which alleged that our client had executed a personal guarantee in respect of the grandson's retainer.

Once Clayton Utz became involved, the Plaintiff law firm seemed to lose interest in their action against our client, and the proceedings were soon dismissed by the Court.

Had she not secured pro bono representation, it is likely that our client would have been unable to defend the claim, and she and her partner would have lost their home. Thank goodness we were able to step in when we did.