Lawyers are expensive, and not everyone can afford them or qualify for legal aid, which is largely limited to criminal and family law cases.

An old Army friend of mine, Major Bernadine O’Shaughnessy, fell into this middle group and endured about seven years of ongoing problems with various defects in her Constitution Avenue apartment that were not being attended to.

She battled away gamely and competently by herself, drafting the necessary documents and representing herself before ACAT. However, after finalising what she hoped to be the last round of repairs needed to her unit and signing an agreement that included a penalty clause, which could be interpreted that she had forever forsaken her rights to ever bring another action again (even for future defects), a few more things went wrong and she went back to ACAT. The penalty clause was invoked by the developers—a large multinational company with deep pockets—and she was ordered to pay over $25,000 in punitive legal costs. 

Bernadine, now a part-time ARES major, could not afford this. 

Former Magistrate, my good friend, the very decent and caring Peter Dingwall, swung into action, and we appealed the decision to the Appeals Tribunal, part of ACAT.

As Peter had previously worked with the barrister representing the developers in other matters, he could not take the case himself—nor could I. Together with Peter’s good mate and prominent Canberra barrister James Sabharwal, they suggested I contact local barrister of 17 years (and former prominent women’s rugby player) Sarah Baker-Goldsmith. She did a wonderful job providing advice and arranged for her “reader”—Kyle Fox—to take on the case. (Like an apprentice, all new barristers must be supervised by an experienced barrister for 12 months after being admitted to the Bar.) Kyle had been an experienced solicitor beforehand, and I instructed him as the solicitor on the case.

Kyle did a wonderful job, and I was highly impressed with the Appeal President, former acting Supreme Court judge G. Curtis SC, who, in a clear and logical judgment, pointed out what should have been obvious to all—that you cannot contract out of a future event.

Even more importantly, on an ordinary plain English reading of the contract, it applied only to existing matters and not to any future issues that could not have been foreseen (for reference, see O’Shaughnessy v JWLand Group (Pty Ltd) [2025] ACAT 10).

Justice was served, and one very happy old soldier was deeply grateful to a team of wonderful local lawyers who stepped up for a good cause—expecting nothing in return.

The ACT community often grumbles about lawyers, but many, like Kyle, Sarah, Peter, and James, freely give their time and expertise to help Canberrans down on their luck, who otherwise wouldn’t have the resources to fight an unfair legal action. Well done to our pro bono lawyers!