John Bottoms, writer of local bestseller “Paw Paw Lawyer”, was part of an illustrious line-up of speakers at the festival. If you missed out on attending – here is the transcript of his address.
I wrote Paw Paw Lawyer because my daughter Emily was studying law at university and I thought it might be helpful to give her some idea ow what lawyers actually did, and how they did it – what it’s like to practice law.
I was encouraged in this endeavour, by the fact that – apart from some dramatic and rather salacious American novels – there is very little material on the subject and whatever there is, given that it is in novel form, is really very far from reality. John Grisham is good entertainment – but American, and not a lot else.
That was the idea.
In fact, my daughter has graduated and was admitted to practice three years ago, and I have finally now finished the book. All in all, it is a little bit late. I think she has found out for herself.
In fact, she quit her job at a Melbourne corporate law firm, King & Wood Mallesons, and is now doing architecture whilst lecturing in property law at La Trobe – so perhaps I should have hurried up to save her all that employment change.
This brings me back to the point of why I wrote the book – well, I wanted to answer the question – what do lawyers actually do?
Simply put, I would say lawyers are problem solvers. This is what the book is about.
In my first real job, my master solicitor who subsequently became a Chief Justice for Northern Territory – was the chair of the local race course reserve trust.
Good racing stallions stabled at the racecourse had recently been injuring themselves by breaking out of the stables in order to service allegedly wild mares who had gotten into the racecourse reserve.
The owners of various mares found out that this was a good way to get their mares covered at no fee, and were leaving mares who were in season in the neighbouring paddock.
The stallions were valuable animals and injured themselves in their quest for romance.
Given that word had got around the small community – and the locals decided that having their rather ordinary mares covered by an expensive stallion was an excellent idea, this was becoming quite a problem.
My boss gave me the file, and told me to work out a solution. It seemed to me as a young practitioner that this was quite clearly a “Wrong” and accordingly a tort.
I did research and decided that the owners of the mares were committing the tort of cattle trespass, the cattle being defined in a very broad way. All of this involved a trip through ferrai domesticus and ferrai naturai and many other highways and byways of common law dealing with animals.
African elephants are ferrai naturai – Indian elephants are ferrai domesticus.
In any event, it was clear to me at a ripe old age of 25 an injunction in the Supreme Court was an appropriate remedy.
Even then an injunction in the Supreme Court would cost approximately $5,000 and was a major exercise.
I had of course taken no account of the fact that, apart from the cost of retainer for the barrister, we had to find out who owned the mare, and then serve them with documents so that the court could be asked to restrain them.
Since the owners of the mares were not voluntarily coming forward, that itself was a major undertaking.
My boss looked at me in despair when I arrived in his office with my various text books outlining the particularity the remedy of cattle trespass and my proposal for an injunction.
He was a very old man – at least 40 – and fairly regarded me as a rather callow youth.
This was probably because I was. He pointed out to me the difficulties of what I proposed.
I was really flummoxed.
“Go and read the stock ordinance” he said “Arrange for the groundsmen to grab the mare, ring the stock inspector and have the animal impounded. Then the owner will have to come forth if he wants to pick up his horse before it is put to public auction and the longer he leaves it the more the pound fees will be”.
Having come from the city, it never occurred to me that you impounded horses.
What is my point?
As I said, there are often different solutions to the same problem – and impounding the mare was the far cheaper and more effective option than my proposal for injunctions.
So problem solving is what it is all about. Finding the most practical and effective and inexpensive solutions.
So, in this book, I have tried to put together in a short period of time a potpourri of my legal experience, setting out how I got to my particular little part of the universe and rather self-indulgently perhaps, dealing with things that interest me.
In my book I have given you the low down on the Wik case, as instructing solicitor for the second applicants.
I also talk about Native Title.
It is only in very recent years that Australia has begun to realise what people closely associated with Aboriginal people have understood for years that traditional Aboriginal people have a very close association with what they call their “country”. They know its secret places, tell stories associated with it and identify with that country in a way entirely different from our western concept of ownership.
The common law in Australia did not recognise Native Title until Mabo. Up until then it held to the view that Australia was “terra nullius”, meaning empty land, when settled.
On the other hand, recognition of traditional connection to land was first accorded by colonial authorities in the last century in many pastoral leases which contained specific reservations allowing Aboriginal people to roam, hunt and reside on the land. An attempt was made to force this recognition on early settlers but it was first given statutory authority in the Northern Territory Land Rights Act of 1976. The concept was initially aired in the High Court in Mabo No 1 and prior to that, unsuccessfully, in the Nabalco Aluminium Case.
Mabo went backwards and forwards between the High Court and the Queensland Supreme Court for nearly ten years in the 1980’s before a final decision was made by the High Court in Mabo No 2 in June 1993.
The decision by the High Court in Mabo No 2 resulted in the recognition by the High Court of the concept of “Aboriginal Title”, which has become known as Native Title.
Aboriginal title was said to exist if the following occurred:
- Traditional connection with the land in question could be identified going back to first settlement (1788).
- It could be shown that there had been no executive action by the government extinguishing that traditional connection.
The examples of executive action given in the lead judgement, although not ratified by the rest of the court, were “fee simple” and “leases”.
People’s homes are again simply purchased and knocked down. Compensation is given but its adequacy is usually a matter of dispute.
Even the banks had made it quite plain – and this was backed up by the Institute of Valuers – that loans in relation to pastoral leases had always been assessed on the basis of plant, equipment, stock and improvements and on no other basis. The institute said that Native Title made no difference to a valuation.
Unfortunately people, pastoralists in particular, seem to think that their land values were reduced as a result of the Mabo or Wik decisions. What they simply didn’t seem to understand was that their land was leasehold, not freehold, and it always had been.
What does that mean?
Well, pastoral leases are just that: “leases”. In effect the lease simply allows the pastoralist to use Crown Land for the purposes of conducting a pastoral business. To that effect, the pastoralist is entitled to construct fences, dams and anything incidental to the business. He does not receive and has never received some form of “de-facto” freehold entitlement. Changes of use, for example to incorporate tourism activities, have always required government approval.
This was what the Wik case was about. Was the granting of a Pastoral Lease an example of that type of government executive action which extinguished Native Title?
In the end, the High Court decided, in the actual words used by the four judges in the majority judgement as follows:
“so far as the extinguishment of Native Title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of grant of pastoral leases under the Acts in question — If inconsistency is held to exist between the rights and interests conferred by native Title and the rights conferred under the statutory grants, those (Native Title) rights and interests must yield, to that extent, to the rights of the (Pastoral lessees)”.
In other words, the High Court made it perfectly plain that, where there was a conflict between the pastoral lessee and the Native Title holder in the area, then the interest of the pastoral lessee must prevail.
I have also given you the low down on Tom and Eileen Longergan – American divers lost off Port Douglas.
I also thought that some of my first-hand experience with the depth of Aboriginal spirituality should also be set down, since it is an experience not everyone is privileged to have.
These insights may help in some small way to create, an appreciation for the wonderful richness which indigenous Australians bring to our history and our community.
I also put in some stuff about estate planning and how I was found in contempt of the Senate, for a bit of light relief.
For the rest, I tried to provide a window into the world of the lawyer and to explain and highlight what the practice of law really involves for a regional country practitioner.
Whilst I am quite sure that many of my colleagues would have many similar stories to the ones I have told here, I thought that by setting these stories down, it may provide an insight into what the practice of law really involves – and that too is really the purpose of this book.
I think I should also say that of all legal practitioners I have met over the years, I have not met anyone who I would regard as actually being dishonest.
This is not to say that there are not varying degrees of competency – some people as in all walks of life, are better at the practice of law than others. Some are better at particular areas of law.
But this is an entirely different thing from the picture frequently painted in the media of high priced greedy individuals ready to take your house, your car (and if you’re not looking) your beloved.
In conclusion then, what does the book do?
- For those of you who might be thinking of following the law as a career
I have to say that from my point of view it has always been very interesting and enjoyable. I still find every day a challenge and I still enjoy what I do.
- For those of you who simply picked up the book as matter of curiosity
I hope my explanations and discussions will be of interest to you and that you will have a better understanding and appreciation of what is involved in the law, than you may have gathered from reading newspapers.
After all, no matter what you may think of lawyers, the rule of law is the cement that holds our society together.
Finally, I hope you enjoy reading the book as much as I have enjoyed writing it.