Flashed in the Pan; Clayton Utz Settles With Michael “Trench” Mitchell

The Michael “Trench” Mitchell v Clayton Utz legal controversy has both captivated and shocked legal observers alike since it emerged in mid 2009. The saga gave a unvarnished insight into the culture of a major corporate firm, how that culture can clash with the psychology of someone allegedly suffering bipolar disorder, and the lengths a firm will go to stultify legal claims arising thereto.

several flashes momentarily proceeding

You will see in four separate posts directly below, case summaries that involve Michael Mitchell & Clayton Utz. The summaries appear in chronological order (earliest to most recent) and are each interlocutory proceedings. In those procedings, you’ll note, Clayton Utz variously opposed:

1. Mr Mitchell’s application for leave to file various complaints against Clayton Utz and others;
2. Mr Mitchell’s application to correct the court order arising in the first application above;
3. Mr Mitchell’s application to amend his original complaint; and
4. Mr Mitchell’s application to cause numerous summonses to be issued.

Based on our reading of these four cases, Mr Mitchell, a bipolar sufferer, terminated after gaining just 6 weeks of legal experience with Clayton Utz and who delivered his oral submissions via telephone from Canada, took home the points against the litigation powerhouse that is Clayton Utz (who were incidentally twice represented by Michael Byrnes SC), in 2.5 of the 4 proceedings.

It probably shouldn’t come as a suprise, then, that the AFR reported on Friday that it had:

learned that Clayton Utz has reached settlement with former employee Michael Mitchell, who had claimed he was taunted by colleagues after they learned of his changing into sports clothes in his office underneath a trench coat. Mitchell claimed he was ridiculed, having been called “trench” and “flasher”.

This news, as well as an earlier tip off, prompted Firm Spy to contact the Administrative Decisions Tribunal to clarify whether the proceeding was still afoot. A staffer at the ADT registry confirmed that the matter was withdrawn on 22 November 2010, the inference being that the AFR correctly stated that the matter has in fact settled.

So why did it settle? We will let you judge by reading the case summaries that follow, however we think the following major points may have prompted Clutz to make Mr Mitchell a decent settlement offer:

• if the proceeding went to trial it would likely have involved the examination of the Clayton Utz lawyer who allegedly told Mr Mitchell that “solicitors could take paralegals home for sex”;
• if the proceeding went to trial it would likely have involved the examination of the Clayton Utz OH&S representative allegedly involved in the professionally damaging claim she engaged in disability discrimination against Mr Mitchell by aggressively questioning him about his medical history. Mr Mitchell later revealed that his medical history involves bipolar disorder – an affliction which has recently been gaining more media attention and something with which Clayton Utz would likely want to avoid any association;
• the fact that Grant Fuzi – the man alleged to have orchestrated the mass defection of 14 Clayton Utz partners earlier this year to open an Australian office of Allen & Overy – is one of the cast of characters involved in Mr Mitchell’s termination; and
• what in our opinion is the tenuousness of Magistrate Hennessy’s reasoning in Mitchell v Clayton Utz & Ors (No 1) as to whether grounds existed to grant Mr Mitchell leave to file a s 50 Anti-Discrimination Act 1977 (NSW) against Clayton Utz partner Joe Catanzariti. Moreover, we think Magistrate Hennessy’s decision, particularly to the extent that is considers whether Mr Catanzariti’s alleged email caused Mr Mitchell a “detriment” within the contemplation of s 50, very arguably goes outside the jurisdictional constraints of such a “leave to file” application. Although the Magistrate correctly stated when grounds for leave to file exist (extracted in paragraph 2 here), it might be said that the Magistrate made a jurisdictional error by “determining the leave application” with reference to “whether the [Mr Catanzariti victimisation] complaint had been substantiated”. If this point were to have been appealed and leave ultimately granted to file, it might have resulted in the highly embarrassing situation in which the immediate ex-President of the NSW Law Society and a current workplace relations partner at Clayton Utz would have been required to take the stand to defend against an allegation of s 50 victimisation.

But then, these are all hypotheticals. As is our (and the AFR’s) speculation that Clayton Utz settled with Mr Mitchell (he might have just withdrawn it). What do you think?

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