Upholding your rights in courts and tribunals
Our lawyers will not hesitate to uphold your rights with fear or favour. We’ve done this continually for 60 years – the length of time that our firm has been in existence.
It is important that lawyers pay careful attention at every stage of the litigation including in what are known as ‘interlocutory’ steps (or the in the intermediate hearings before the final hearing). Some of these ‘intermediate’ hearings can for example make or break your case. The example of the interesting and controversial case of R v Kahtan ABDUL-WAHAB No 3 [2025] NSWLC is informative.
The case was conducted in the Local Court of NSW, and one of the main issues arose at an interlocutory stage, where the constitutionality (or legality) of a certain provision of the Crimes Act 1900 NSW was essentially a question which needed to be answered.
The Local Court may have effectively had no choice but to determine that ‘constitutionality’ (perhaps it could have referred (or ‘removed’) the matter to a court of inherent jurisdiction or a higher court, of its own motion but it did not — it did not refer or remove the matter to the High Court or to the Supreme Court of NSW).
The Court used the doctrine of ‘necessity to do justice as between the parties’ (Lambert v Weichelt (1954) 28 ALJ 282) to decide the constitutionality of a provision of a legislative instrument.
The essential fact is that it seems that no objection was taken during the course of the hearing for the accused in relation to that course with the Court itself saying that the “constitutional issue was not removed to the High Court by any of the parties under s 40 of the Judiciary Act (Cth) 1939.”
It is very hard to envisage that the Court had the jurisdiction to decide these questions without reference.
Cases such as Lambert v Weichelt seem to imply that the ‘necessity to decide constitutional questions’ arises only when those questions are within their own purview (i.e. when the jurisdiction exists for these courts to decide such questions).
It seems to us that the accused should have perhaps objected.
The lawyers at Papallo Kouchoo do our utmost to uphold our clients’ rights under the law, without fear, or favour.
If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.
Malicious Prosecution
Some litigants at times commence proceedings in response to a ‘prosecution’ which they believe, should have never been brought against them, after the case against the client is dismissed.
This happens mainly in the criminal jurisdiction where the aggrieved client would like to institute proceedings against the police or the state, but it can also happen in civil proceedings where some clients are intent on bringing matters against former claimants for “maliciously prosecuting a case”.
Again, because of the exorbitant costs of these kinds of claims (‘counter-claims’ actually) we always urge caution and carefully examine every detail of the original case brought against our client, before we provide advice that a client can proceed on the basis of reasonable prospects.
For example, in the case A v NSW in the High Court (2007), the High Court held that when a “a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make.”
In other words, the various circumstances surrounding the original case will need to be very carefully examined and a decision is to be made that the case was brought maliciously in light of ‘all the circumstances,’ before we can say that the case will have good and reasonable prospects of success.
The ‘circumstances’ then are all important, this is because very simply, a claimant against the client in the original case (whether they be police or a civilian claimant) will not tell the client, that its original case against the client was a ‘malicious prosecution’. Hence the careful analysis of all the facts (and in detail) is an absolute must.
The moral of the story is (as is the usual case) that you need to meticulously examine each of the facts and ensure that you leave no stone unturned before commencing any proceedings.
At Papallo Kouchoo Lawyers, we do our utmost to ensure that there are good returns in relation to any case, and we do that before we commence proceedings, ensuring to uphold your rights to the maximum extent of the law.
If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.
Employment matters in Churches and other religious institutions
At Papallo Kouchoo we have acted for various churches, other religious institutions, as well as for their individual employees or contractors.
These kinds of disputes (between a religious institution and its staff) can be complicated, as many times it is hard for example to ascertain whether a member of the clergy of a certain faith is an employee, a contractor, on a stipend of some kind, or a person providing services to the organisation characterised in other ways.
Many of these kinds of claims can also involve ancillary allegations; for example allegations of bullying or other kind of abuse are often made in the course of these disputes and these will need to be dealt with effectively.
Jurisdictional problems also arise sometimes. Some of these matters can be commenced in a court (e.g. the Supreme Court) whilst depending on the circumstances, some of the matters may need to be initiated in the Fairwork Commission or in fact, in the NSW Industrial Relations Commission. Our lawyers can quickly assess where these matters should be commenced or be continued, giving effective advice as to transfer of proceedings for example.
Our lawyers are also very versed in the practice and procedures in all related jurisdictions in which these matters are commenced and continued; we can provide your organisation (or you as an individual) proper and cost-effective advice to deal with the dispute quickly and efficiently.
At Papallo Kouchoo Lawyers, we have significant experience in conducting these matters in all relevant jurisdictions.
If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.
Human rights in employment, education, medical field and court action
The lawyers at Papallo Kouchoo have acted for and consulted in relation to various high profile matters involving disputes as to employment rights, worship rights, medical rights, and other human rights including those as related to emergencies and government orders.
Our lawyers were quite active during the Covid emergency for example, acting in and consulting full-time in various matters requiring the intervention of the courts, for example as related to medical interventions and other human rights considerations.
These matters are not simply limited to emergency situations which require the upholding of the rights of an employee say, or of a religious person who wishes to worship as they see fit in accordance with the human right to religious freedom.
Other matters in which we have provided advice have included acting in relation to the upholding the rights of students or doctors and others in relation to their ability to act in accordance with their conscience, and as provided for under international human rights laws and international rights regime.
At Papallo Kouchoo Lawyers, we have the experience to provide you with cost-effective advice to deal with your human rights related disputes.
If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.
Judicial review matters
Our Papallo Kouchoo lawyers have extensive experience in acting for clients in relation to ‘judicial review’ matters before the Supreme Court.
In various matters, where clients are aggrieved by the decisions of the lower courts (or of the Tribunal), the best way forward may be to commence judicial review proceedings in the Supreme Court to have the decision below reviewed by the judges of the Supreme Court.
Commenced via a ‘summons’, these matters usually seek declarations that effectively invalidate the whole of the decision made by the courts below because the decision is, on various occasions, “vitiated” or infected by ‘jurisdictional error’.
These kinds of proceedings may also involve seeking orders in the ‘nature of certiorari’, removing the lower court decision into the Supreme court and effectively ‘quashing’ the decision, as well as orders which ‘remit’ the matter back to the lower court or Tribunal to be determined ‘in accordance with the law’ (i.e. in accordance with the judgement of the Supreme Court).
As is usually our practice, we ensure that these kinds of ‘appeals’ (these are a unique types of appeal) are properly assessed, ensuring that their prospects of success are quite high before any such steps are taken, including briefing counsel (barristers) to ascertain that the way forward has a reasonable chance of succeeding.
At Papallo Kouchoo Lawyers, we have the experience to provide you with cost-effective advice to deal with your judicial review disputes.
If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.
Disciplinary proceedings
The lawyers at Papallo Kouchoo have acted for various professionals in disciplinary proceedings, especially in the medical fields.
These are proceedings where professional organising bodies (those such as Australian Health Practitioner Regulation Agency (“AHPRA”) or related agencies which cater for different professions—e.g. the Medical Council of NSW, the Dental Council of NSW, or the Nursing and Midwifery Council of NSW – “ professional bodies” or “councils”) bring proceedings in against a professional in respect of alleged conduct which can potentially amount to what is labelled as ‘unsatisfactory professional conduct’ or more seriously, ‘professional misconduct’.
Proceeding in respect of ‘unsatisfactory professional conduct’ may be related to conduct which is said to ‘sub-standard’ practice in a relevant field, and it can include matters as simple as ‘bad record keeping’, or general unsatisfactory business conduct of a practice, or inappropriate dealings with patients, clients or other colleagues.
When the allegations are proven, the outcome (or the ‘punishment’) may include conditions imposed on a practice, and or some other type of punishment such as fines, reprimands, attending courses (usually a condition), as well as legal costs.
‘Professional misconduct’ on the other hand may be much more serious, relating to matters which may be quite significant. For example, conduct which leads to injury or death, criminal conduct, conduct related to mis-prescribing medication and other related matters.
If the allegations of the councils are made out, stringent conditions on a practice may be imposed, and other more serious outcomes can include suspension, cancellation of authority to practice (e.g. removal of the name of a practitioner from a professional roll and prohibition of practice, i.e. cancellation of ‘licence’ to practice) and others.
Costs can usually follow.
These hearings are mainly held in the NSW Civil and Administrative Tribunal (NCAT) and can be heard in two stages. One stage regards prosecution of the allegations (i.e. proving them) and the other may be a hearing as to what the punishment ought to be if the stage one allegations are proved.
There may also be ‘urgent’ hearings where if the allegations is thought to be serious enough, in order to protect the community, a ‘section 150’ hearing for example, may be held in order to see if immediate suspension or other urgent measures are required.
Many times, these urgent hearings end with stringent (and interim) conditions being imposed to one’s practice.
However, one can never be sure what the outcome in any of these hearings will be.
At Papallo Kouchoo Lawyers, we have acted for various professionals, against whom allegations were made and proceedings brought, but whose conduct did not amount to either unsatisfactory professional conduct nor to professional misconduct. But in order to ascertain that, good lawyers are needed to assess each case on its merits and to ensure that a good defence exists.
At other times, it may be that a council’s case against the professional is quite strong (for example, the professional may have already been convicted of offences in the courts) and so the best way forward may be to simply try and ‘limit the damage’ and attempt to continue a practice with reasonable conditions.
It is also possible that, if allegations against a professional are not proven, costs orders may be made against a particular council and in the professional’s favour.
Our experience in this area (much of it with doctors, dentists and nurses) can assist you in trying to traverse this very tough terrain. We understand that your livelihood depends on the advice that we give you. In such stressful circumstances, we not only provide you with the best advice available, but we also provide you with cost-effective advice.
If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.