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The Victorian injustice system

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Tess Lawrence is a professional journalist who, in our experience, is of unimpeachable integrity, high character and great goodness of heart.

Tess Lawrence

And so we are saddened to report that Independent Australia’s contributing editor-at-large has recently been declared bankrupt for debts she claims she does not owe — after having being forced, due to financial hardship, to represent herself in court. In a sworn Affidavit, which the Victorian Supreme Court appears to have entirely ignored, and that we include in the following piece, Lawrence alleges that she was subjected to death threats in an interval in an earlier proceeding in the Melbourne Magistrates' Court by an opposing solicitor in an effort to procure her to change her sworn testimony.

Medical diagnoses show that the trauma associated with these threats triggered a breakdown that, despite her having worked as a journalist in war-zones, and having been physically assaulted on several occasions in the course of professional duties, caused Lawrence to lose the mental and physical ability to represent herself. Despite this, the court decided to not take any of these matters into account and carried through with judgement against her even in her absence while she received treatment.

This case has gravely significant implications about the state of justice in Victoria. We urge you to read the story and express your support in the comments after the piece for the doughty and fearless Tess Lawrence as she continues to fight against her persecutors. Without our diligent efforts to redress the root causes of such injustice, what has happened to Tess Lawrence can, of course, at any time, happen to any one of us.

Victorian Justice: what happens outside Court stays outside Court

Journalist advocate Tess Lawrence has made a comprehensive statement to Victoria Police alleging death threats by a lawyer from influential legal firm McKean Park. Copies of the Police Statement have also been sent to the Attorney General of Victoria, Robert Clark and the Ombudsman.

Lawrence has worked intimately with the Bourke St legal firm on a number of high profile assignments, providing hundreds of hours of pro bono media services for her well-publicised 2009 campaign 'The Choir of Hard Knockbacks ', when McKean Park represented a group of disaffected choir members of the award winning ABC TV documentary series 'The Choir of Hard Knocks'.

McKean Park has bankrupted Tess Lawrence over an alleged debt that Lawrence denies owing them. The National Australia Bank later joined McKean Park as the sole creditor on the Bankruptcy Creditors Petition. Lawrence says she will be fighting the Bankruptcy Order.

Because of financial hardship, for three years the investigative journalist and specialist in ethical media services has been forced to represent herself in the Supreme Court in a multi-million dollar counterclaim against the National Australia Bank — who is suing her for alleged Default.

Lawrence’s counterclaim accuses the National Australia Bank of predatory, false and misleading representation and behaving in a fraudulent and unconscionable manner; using duplicitous and corrupt conduct, including the withholding of evidence and original documents from the Defendant's own bank file; and using fabricated evidence — amongst other matters.

Pitted against a phalanx of NAB lawyers, Lawrence managed to get the matter to trial in the Supreme Court of Victoria, scheduled for September 26, 2011 — which she understands to be the first time in Victoria that a self-representing non-lawyer litigant hasbeen successful in such an action.

However, before the trial, on May 9, 2011, in the Melbourne Magistrates' Court, during an application for a re-hearing in the McKean Park Bankruptcy matter Lawrence alleges that she was accosted by a McKean Park lawyer, who screamed at her, harangued her and even made death threats in an effort to induce her to change her evidence and perjure herself.

Page 3 of Tess Lawrence's sworn Affidavit

In a sworn Affidavit prepared for an ill Lawrence by Phil Grano, from the Office of the Public Advocate, and presented to the Supreme Court in the National Australia Bank matter on 26 September 2011 (pg. 3), in an endeavour to seek an adjournment,Lawrence states the following:

‘….The Magistrate, Mr Braun, hearing the matter asked the solicitor appearing for McKean and Park, Richard Ashley, to request Tony Rogers (the senior partner) to attend the Court. The matter was then adjourned to seek Mr Rogers’ attendance. Outside the Court Richard Ashley verbally attacked me and abused me for causing the attendance of Mr Rogers. His language was intemperate and threatening with words to the effect “You’re dead" and "you fucking bitch". "The NAB and I will take you down". "You will have nothing, you will be destroyed". He pointed at me when saying these things and I thought he was going to strike me. I felt incredibly intimidated and I did not leave the court premises during the adjournment. I vomited in the ladies’ toilet.

 

‘7. I was helped by the Court Network person. She gave me access to a telephone and I called a lawyer, Mr Ross Delahunty, to seek advice. He advised me to raise the matter immediately with the Magistrate after the Court resumed. I subsequently did this, but the Magistrate said he did not want to hear what happened outside the Court.’

[Open the full 49 page affidavit by clicking here.]

Lawrence says the attack sent her into a spiral of depression and despair, such that she became physically and mentally unable to represent herself. Her assertion is supported by numerous medical certificates provided in her affidavit, which state that the alleged threats and verbal abuse did indeed trigger in Lawrence severe “psychological distress” (note image below).

Medical certificate 21July (click on image to see larger)

And according to a diagnosis tendered by eminent clinical psychologist and psychotherapist Michael Crewdson, senior lecturer and senior fellow of the School of Medicine at the University of Melbourne, Lawrence suffered severe Post Traumatic Stress Disorder (PTSD), immobilising the self-representing litigant who was certified incapable of handling her own legal affairs and was incapable of instructing lawyers.

In his written statement to the Court, Mr Crewdson makes the following diagnosis (note image below extract):

‘Three months ago she [Lawrence] reports being the victim of an abusive incident when confronted by an opposition lawyer at the Melbourne Magistrates’ Court on May 9, 2011. She told me that her psychological state which was already under stress had markedly deteriorated from that time. There were indications of the existence of an acute stress disorder, although clearly I am not in a position to comment on the factual nature of the events. She believes that she was threatened and has had ruminative and intrusive episodes where she has re-experienced the incident.

 

‘I would not dispute Dr Lim’s diagnosis of depression but my concern was with the high level of anxiety with which Ms Lawrence presented. She was often incoherent and her cognitive processes were disjointed. She had difficulty in concentrating and her speech was sometimes disarticulated and almost invariably circumlocutory. There were no psychotic manifestations but she was clearly not functioning in an effective manner. I supplemented my clinical examination with psychometric testing.’

Michael Crewdson's certificate (pg1)

A similar diagnosis to Crewdson's was also submitted by another psychologist, Dr David List.

Despite this medical evidence being presented to the Court, the magistrate refused to grant an adjournment to allow her to seek treatment – or justice – insisting that the court action proceed even in Lawrence’s absence or distressed state — severely compromising her defence.

After the verbal assault in the Melbourne Magistrates Court on May 9, 2011, Lawrence says she was forced to stand, petrified with fear, next to her alleged assailant in Court as she tried to tell the Magistrate about what had happened just outside his Courtroom.

“Magistrate Braun dismissed my pleadings,” recalls Lawrence, “saying words to the effect that he was not concerned with what went on outside the Court and only interested in what went on inside his Court.”

Lawrence argues that if such threats to kill and trash property and attempts to coerce people to alter evidence and commit perjury, had been made to say, a magistrate or gangland figure, then an adjournment would have been granted, or imposed by the magistrate.

“The magistrate and the Judicial System has a duty of care to oversee the safety of self-representing litigants, women and all other people within the court, including employees,” she says.

“What has happened to me has happened to many others and highlights the inadequacies of the court system to assist protect the weak against the powerful.”

In an ironic twist, last year, Lawrence wrote to the Chief Magistrate Ian Gray after she witnessed an ugly punch-up take place on the ground-floor of the Supreme Courts. Lawrence, a specialist in crisis management communications, noticed that the fight played out with friends and family members eventually managing to restrain the warring parties — and that security staff did not intervene or even attend. After making enquiries, she discovered that the Supreme Court's communications systems – for Judges, staff and citizens, including security staff – were totally inadequate and had major flaws. Lawrence says she wrote then to the Chief Magistrate out of concern for public safety in both the Supreme and Magistrates Court — and the courts system in general.

In her dealings in the Supreme and other Courts, Lawrence says that, at times, the hostility towards her as a self-representing litigant was palpable — with Magistrate Braun making statements to the effect that to grant her an application for a rehearing of the Bankruptcy matter would be tantamount to opening the floodgates to self-representing litigants.

Lawrence says she was ridiculed in Court by the NAB for her pre-existing stammer — and that her dyslexia was given emphasis by Magistrate Braun when he read out her Affidavit in Court, admonishing her for not having a lawyer. Lawrence recalls she told the magistrate that the last thing she wanted to do was to represent herself, but since the NAB would not release any funds from her property portfolio to allow her to pay for a legal team, Lawrence had none available to pay for lawyers.

Unfortunately, cases of judges treating self-representing litigants with such callous disrespect and neglect is far from rare— indeed, in a story published earlier this year, IA detailed an example of two Queensland judge showing a self-represented litigant – Jennifer Nash – with outright contempt. And in 2007, former judge Geoff Davies had a story in The Australian, where he said instances of litigant disrespect was rapidly increasing.

Indeed, towards the end of piece (‘National disciplinary power is needed to rule on overbearing judges’, 14/9/2007) Mr Davies said:

“… there has been a gradual decline in respect by the public for persons solely on the basis of their position or authority. Rightly, the litigating public will no longer tolerate ill-tempered, overbearing rudeness from judges. They are entitled to be treated fairly in court.”

Lawyers don’t want to take on 'the top end of town'

Lawrence says she spoke to several lawyers who, although sympathetic, were not prepared to assist her defence against the NAB or McKean Park.

“A number of lawyers confided to me that they did not wish to take on 'the top end of town',” says Lawrence.

She says Legal Aid also were not interested in even meetingLawrence because she “held property”.

And when she rang PILCH, (the Public Interest Law Clearing House), to whom the NAB is a generous donor, Lawrence says the PILCH representative was forthright — not even wishing to know any details about the merits of her case.

"He told me categorically: ‘we don't take on anything to do with the NAB’,” says Lawrence.

David Krasnostein, the Group Corporate Counsel of the National Australia Bank Ltd, was chairman of the PILCH Board at that time.

Disturbing connections

There are a number of disturbing connections in the National Australia Bank versus Tess Lawrence case that, she asserts, have an interesting backdrop to the Melbourne legal and political establishment.

In the sworn Affidavit prepared by Phil Grano, Lawrence says the Law Institute of Victoria seized six boxes of her Trial documents from the office of Murumbeena solicitor Mr Ross Delahunty, the lawyer she phoned in distress after she was threatened.

From the affidavit (pg7):

19. Significant files of mine in relation to this proceeding were in the possession for safekeeping of the lawyer I contacted after the incident on the 9th of May 2011, Mr Ross Delahunty. Mr Delahunty has advised me that the Law Institute of Victoria seized these documents from a private filing cabinet. Mr Delahunty has complained against the Law Institute. The Law Institute has not returned the documents to me. In fact, it has engaged the firm of McKean and Park, a coincidence that I find disturbing. Now shown to me and marked TPL-8 is a copy of a letter from McKean and Park to Mr Delahunty.

Apart from information relating to the court action, among these documents, says Lawrence, is potentially explosive information, including some about certain figures from the Melbourne underworld and their connections to the Melbourne establishment.

Lawrence claims she contacted the Law Institute of Victoria, who she says admitted they had taken the documents. Lawrence says she instructed the Law Institute to immediately return her documents to the office of Ross Delahunty. Until now, this has not been done, though she was informed earlier today that some documents have been returned, though Mr Delahunty is uncertain which documents have been returned or whether they are intact.

She says the seizing of these documents has prejudiced her chances of a fair trial, something she also asserts in her Affidavit.

“Surely no Trial can fairly proceed with one of the Parties being deprived of their Trial documents,” says Lawrence.

"I cannot imagine, say, a trial involving Paul Dale or Tony Mokbel proceeding with either the Prosecution or Defence being deprived of their trial documents through no fault of their own, but instead, having been seized by a regulatory bastion such as the Law Institute of Victoria.

“I cannot understand why the Court did not call them to account for their actions. I thought we were all equal before the Law, but it seems those belonging to the legal profession are treated more equally than we of the great unwashed."

Lawrence said she was absolutely stunned to discover that McKean Park Lawyers were acting for the Law Institute in the “theft” of her documents. And the National Australia Bank is also listed on the Creditors Petition of the McKean Park Bankruptcy Order for an alleged Visa Card debt, that Lawrence claims was on-sold at least twice.

Victorian justice doesn’t keep its promises

The Bankruptcy Order was made on November 11, although His Honour Associate Justice Gardiner did not deliver his Judgement until November 15.

Lawrence says she is still awaiting the transcript of the September 26 Trial, in order to put in a competent appeals process.

Given that Lawrence was sick and unable to attend, and despite an adjournment plea by eminent

Senior Counsel Dr Ian Freckelton (acting pro bono) — and, despite the psychological evidence from forensic psychologist Michael Crewdson and the in court testimony of Dr David List, the former head of the Psychologists Registration Board of Victoria, His Honour did not see fit to grant any adjournment.

Lawrence says that, until the attack, she had not missed a single appearance in the Supreme Court in three years. Indeed, on one occasion, when the NAB and its lawyers Turks Legal were a no show, she was asked by His Honour Associate Justice Mukhtar to call up them up to ask them to attend.

“I was horrified when Justice Mukhtar asked me to telephone my opponents and persecutors and invite them to attend Court,” says Lawrence.

“I was sick in the stomach and shaking at this, but I did it so as to not incur the displeasure of the Court.”

According to her Affidavit, Lawrence says His Honour AJ Mukhtar promised that she would be able to call in the favour she did to the Court and to the NAB/Turks Legal that day.

That day Lawrence wanted to call in that favour and mercy came on August 4, 2011, in the Supreme Court before His Honour Mukhtar — the penultimate hearing day before the September 26th Trial.

Lawrence was desperately ill — something she had kept all Courts and Parties appraised about with up-to-date medical certificates. But when it came to judgement in her case, she was not only unaware of the Hearing, she was certainly not in a fit state to attend had she even known about it — something her medicos had made abundantly clear to the Court.

Associate Justice Mukhtar did not keep his promise to Lawrence. At her non-appearance, no-one was despatched to call her to see where she was— which, if the medical reports stand, was probably lying in a catatonic foetal position on her sofa.

Orders were simply made in her absence — and that was that.

The current crisis

Lawrence has not received any Sherriff's Warrant and has received no related phone calls, however she has had unconfirmed reports that some of her property located outside Melbourne has been trashed and that people have been reported taking things from inside the property — including boxes. Lawrence says most of the furnishings do not belong to her, having been sold to raise funds several years ago. Other things are private family mementos, the Lawrence family having been entirely burnt out twice — once in bushfires, and once in riots in the Persian Gulf.

Whilst she has not recovered entirely from her illness, Lawrence says the medication and therapy has helped rebuild her confidence and restore impart her courage. Her PTSD is stabilising and its management becoming easier.

She says that she is trying to retrieve the situation and has decided that, regardless of what happens, she is back in the ring.

Tess Lawrence says what has happened to her can happen to others, and that we should all be aware of the compromised nature of the justice system:

"I am so distressed that a woman, a self-representing litigant, can receive a death threat within the portals of the Court and – despite reporting it to the regulatory bodies, despite magistrates knowing, despite Supreme Court Judges knowing, despite the Federal Court knowing, despite the Federal Magistrates Court knowing, despite the Ombudsman knowing, despite the Attorney General knowing – nothing is done, the code of silence on violence continues.

 

“It makes a mockery of the White Ribbon Campaign and those good men who have made the Pledge not to tolerate or perpetrate violence towards women. What happened to me, most likely happens to other women and other self-representing litigants.

“To have one's day in Court is a cornerstone of our judicial system.

“The tragedy here is that those who are supposed to be meting out Justice are themselves contributing to depriving others of it."

 
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