Archive for August, 2007


August 27, 2007

Last Monday I went to the latest in the Bar Association’s series of “seminars” in its “rhetoric” series, entitled “The rise (and fall?) of the barrister class” and presented by Michael McHugh. The chairman of the session was Michael Kirby.

I have been to a few of these seminars by now, and have blogged about one previously. I have missed two, and although, judging by their titles, they just might have been the interesting ones, I have to say that content has been elusive and I can only speculate on their interest in much the same category as “the one that got away.”

Just to recap. This is the curriculum of the series:

Seminar one: the empty eloquence of fools: rhetoric in classical Greece Presented by Dr Ruth Higgins and chaired by Bret Walker SC on 28 May 2007.

I missed this one. Apparently it was mostly about Aristotle. It may have been interesting (I am not in a position to judge) but most of the retrospective comment was on what a good looker Dr Ruth Higgins is and her cute Scots accent.

Seminar two: Cicero’s De Oratore & the Philippics
Presented by Justin Gleeson SC and chaired by the Hon Justice A R Emmett on 5 June 2007.This seminar moved the focus of the series from ancient Greece to ancient Rome, which also has much to teach the contemporary barrister.

See my previous passing comment here. As an additional insight, we learnt from Justice Emmett in his introduction that he had formed an early view on Justin Gleeson’s brilliance when Justin wrote his Roman Law essay for (the then) Mr Emmett without citing any secondary sources, from which Mr Emmett divined that Justin had consulted Justinian in the original Latin. By way of comparison,  the librarian at law school recently reminded me (I had forgotten, and it may even be apocryphal) that when Mr Emmett asked the class which I was in why we had chosen to study Roman Law, I had said “Well, there was this film called Caligula.” In truth, the main reason I chose Roman Law was because it was in the afternoon.

Seminar three: Rhetoric: Is it Anything More Than Intuition?
The third seminar tackled the debate surrounding the idea of a ‘new rhetoric’ and explores rhetoric’s relationship to philosophy and psychology—both of which come into play in contemporary courtrooms. It also discusses historical factors that have contributed to the denigration of the term ‘rhetoric’.

I missed this one. At least it had a reading list.

Seminar Four: Rhetoric: Between Virtu and Fortuna: Rhetoric in Machiavelli’s The Prince and Cicero’s On Duties
Seminar Four in the Bar’s Rhetoric Series was held on Tuesday, 10 July 2007. The topic was ‘Between Virtu and Fortuna: Rhetoric in Machiavelli’s The Prince and Cicero’s On Duties’

I went to this. We learnt that Sandy Street [A.W.Street SC] had discussed its contents whilst rowing (maybe sculling) with Justin Gleeson on the Lane Cove River. Apart from that, it was a congeries of Machiavellian apophthegms, offered (unconvincingly) with parallel Italian texts. I didn’t learn anything about Machiavelli that I hadn’t learnt either in Early Modern European History in my undergraduate degree (when I read The Prince and extracts of other texts), when I touched on echoes of Machiavelli when studying English Renaissance literature, from reading J.G.A. Pocock’s The Machiavellian Moment, or dealing with the relevant chapter in the textbook when I taught a course in Jurisprudence at UTS in 2000.

Seminar Five: Changing Rhetoric of Barristers over the Last Century
A discussion with a panel comprising the Hon. Justice C Branson, Tom Hughes QC, Tom Bathurst QC, Bret Walker SC and Sharron Norton SC, with Lucy McCallum SC acting as interlocutor was held on Monday, 23 July 2007.

I can’t begin to describe how terrible and mutually-stroking this one was. There were mock-submisions on sentencing for a hollowly melodramatic hypothetical involvin a mother who had killed her child whom she was drunkenly driving to the hospital in an emergency, delivered by Bret Walker and Tom Hughes, and then submissions on a hopeless mortgage case delivered by Sharron Norton (who surely does not practice in this area and made some utterly astounding submissions) and Tom Bathurst (who at least knew his hard-hearted job) where Justice Branson betrayed a spectacular ignorance of a very famous case, Amadio, which she thought was based on section 52 of the Trade Practices Act. (To me this indicates how ignorant lawyers can often be about any case decided after they have graduated unless they practise in the area).

Michael McHugh’s lecture was not as bad as that. He started off with a brief summary of the origins of the bar in the 16th and 17th centuries, and how it supplanted the civilians and eventually the Sergeants-at-law (he didn’t mention their picturesque title, the order of the coif). There was a brief mention of the historical development of the criminal trial in the second half of the 18th century and first half of the nineteenth – largely a rehash of portions of his judgment in Azzopardi v R. This was when he first mentioned some actual advocates, namely Thomas Erskine and Charles James Fox (a political rather than forensic advocate). All this took up perhaps the first third of his lecture.

McHugh then moved on to what seemed to be the central thesis of his address.  The golden age of the barrister class, he said, was from about 1875 to 1939, when prominent advocates became celebrities, on the back of verbatim reports of trials published in newspapers which were widely circulated and read.  This took up the next third of his speech.  The usual suspects and celebrated moments were wheeled out: Carson’s cross examination of Oscar Wilde (and in particular, the moment when Wilde fatally quipped that he didn’t kiss one boy because he wasn’t pretty enough, which of course gave the lie to his denials that he kissed all the pretty ones); F E Smith’s prosecution of Sir Roger Casement.  I wanted to ask: what is so glorious about the persecution of Irish homosexuals?  But I bit my tongue. 

That golden age was now past, McHugh declared.  The public no longer reads trials for entertainment.  Modern celebrities of the mass media are film and sporting stars and newsreaders: barristers don’t get a look in and none earn comparable incomes.  This was an indicator of the decline of the bar.  Somewhere in this final third, McHugh also touched on a few of the leading barristers in post-war Australia and made a few passing comments on what he politely called the “supra-competitive” practices of the bar, such as that, as a young barrister in 1961 appearing with Anthony Larkins QC, he received 100 guineas, which was two-thirds of Larkins’ fee according to the rule which then applied to junior counsel led by senior counsel, and about five times the fee he would otherwise have commanded.

After this final semi-Jeremiad, the atmosphere was somber in the Bar Association Common Room.  One young bright spark piped up: “I’m 32 and just starting out.  What advice do you have for me?”  McHugh gave the perennial advice offered by successful members of free-lance professions (I’ve heard this from musicians, too): “There’s always room at the top.”

Again I bit my tongue.  I had gone to this seminar on my way home, and already divested myself of my suit in favour of something more casual, so didn’t want to draw too much attention to myself.  But now (OK, it’s l’esprit d’escalier) I have to say that McHugh’s thesis struck me as simultaneously bizarre and banal.  Bizarre because I don’t see why the golden age of the bar or the status of barristers should be measured against public entertainers, and banal because of course the rise of the mass media beyond the print media in the second half of the twentieth century (not to mention their exclusion from court rooms, in Australia and the UK at least) has led to an increased standing for those few public entertainers who are able to bestride such media.  I don’t see why barristers’ incomes should be compared to sports and film stars’ incomes now any more than I suspect that barristers derived (except in the most indirect sense) income from their newspaper renown in earlier years.  The wires all seem to be crossed on this one.

Michael Kirby (or, as we say in the trade, Kirby J) chaired the session.  He introduced the subject with an anecdote about how Sofronov QC eloquently opened the case for the applicants in Wik Peoples v Queensland. McHugh nodded in agreement, though from my own trawling through the transcripts I think this might be a tale which has grown in the telling.

There is something of the vicar in Michael Kirby, and so it is not surprising that he should have chosen to deliver some soothing and uplifting words in the wake of McHugh’s obsequies. He made the point that, despite McHugh’s words of doom and gloom, cases will need to be put, and that the capacity to put them, courageously and courteously, remains a rare skill. Tellingly, Kirby did not suggest a need to be courageous in the face of opposing advocates: what he singled out was a need for courage in the face of judges. And people wonder why eloquence is said to be in decline!

This is a nice point. It is risky being courageous towards a judge. Courage can be misguided or misplaced. One person’s courage is another’s foolhardiness. I may get round to composing a post about Ignatius Asuzu, a barrister who was recently ordered to pay $9,000 of his client’s opponent’s costs, and of whose conduct of a case on behalf of his “very difficult” client Mr Justice Windeyer of the Supreme Court said:

“I regret to say that so far as inadequacy of preparation and incompetence in advocacy is concerned this was the worst case which has come before me since I was appointed to the court.”

In the meantime, you could always follow up that link.

A Hot Ticket

August 26, 2007

Last night D and I went to see Andre Previn’s operatic adaptation of A Streetcar Named Desire.  The production is booked out. I agree with Peter McCallum’s view that the opera does not really manage to add much to the play.  The cast was a strong one, though there is something about Yvonne Kenny’s slightly 78-rpm vibrato which by the end of the night tends to grate on the ears, and Teddy Tahu-Rhodes’ much-vaunted pecs are, from the front row at least, simply too much.

Two topical notes

  1. Between Friday and Saturday, presumably in preparation for APEC, all garbage bins had been removed from the Opera House forecourt.
  2. Walking back along the Tarpeian Way after the performance, D and I noticed a large party going on in the Toaster.  When we passed a telephoto-equipped paparazzo, we guessed it must involve somebody famous.  We were almost right: apparently, Sarah Ferguson was in town for the birthday party of her sister, Jane Makim/Luedecke/Ferguson.

Bring back the Ophicleide and the Serpent!

August 26, 2007

On Friday night I went to hear the SSO play:

PROKOFIEV Piano Concerto No.3 in C major
BERLIOZ Symphonie fantastique

The conductor was Tugan Sokhiev and the pianist was Boris Berezovsky.

Because he is Russian, it is tempting to descripe Berezovsky as a bear of a man.  Something about the way he carries himself reminds me of Stephen Fry.  So far as comedy is concerned, there was a funny moment when Berezovsky disppeared from the stage at the end of the first movement – an almost unprecedented occurrence.  He returned, evidently not having found what he was looking for, and ended up borrowing a large white hanky from Sokhiev which he proceeded to lick ostentatiously (with some guying to the audience) and use to clean the middle register of the keyboard – and not a perfunctory swipe but a quite determined attack on some specific spots.  After that, all proceeded as normal, save that as an encore, he and the orchestra played the finale to the last movement even faster.

I thought some of the orchestral playing in the Prokofiev a little scrappy, and particularly the violins.  Thankfully, there was a return to a more silky smooth violin sound in the Berlioz. 

The Symphonie is subtitled Episode in the Life of an Artist and culminates in not one but two opium inspired dreams, first of being marched to the scaffold on being condemned to death for murdering his beloved, and secondly (or, in terms of movements, fifthly) of a witches’ sabbath.   Later Berlioz wrote a sequel and retrospectively reprogrammed the entire symphony as an opium dream, though not, I think, with any significant recasting of the first three movements.  Love, death and opium are a heady combination, which certainly captured my imagination when I first fell for this piece as a teenager.  The symphony also has a famous à clef aspect: it purports to document Berlioz’s obsession with the Irish Shakespearian actress Harriet Smithson (a Shakespeare craze was one of the marks of French Romanticism), whom Berlioz subsequently married.

In her program note, Natalie Shea cited the description of the premiere of the symphony in 1830, when Berlioz was 27, as “the concert at which French Romanticism was born.”  The birth was not universally welcomed.  The Figaro declared the symphony “the most bizarre monstrosity one can possibly imagine.”  Even in 1879, Edward Dannreuther, writing in the first edition of Grove’s Dictionary of Music and Musicians, said that “one must draw the line somewhere, and I would draw it on the hitherside” and that:

“Bloodthirsty delirious passion such as is here depicted may have been excited by gladiator and wild beast shows in Roman arenas; but its rites…are surely more honoured in the breach than in the observance.”

Once I would have scoffed at such views, and accepted “the most bizarre monstrosity one can possibly imagine” as unintended praise.  Now middle age has caught up with me.  It’s not that I don’t still love the work, but once you have heard it in all its grotesque splendour a few or indeed many times, where can you go and how much can it still excite you? 

There is a trick of history in that, because of developments in orchestral instruments since the nineteenth century, Berlioz is known for his blaring brass section, which can easily overpower the rest of the orchestra.  The last movement (the Witches’ Sabbath) riffs on the Dies Irae (the sequence for the mass of the dead which also rears its sinister head in Rhachmaninov’s Variations on a Theme by Paganini). These days this usually features two tubas.  I find the sound of the tubas too thick and creamy for Berlioz’s contrapuntal writing.  One place I would like to go to is to hear this piece with the ophicleide and serpent for which Berlioz originally scored it.  I know that the SSO has at least one ophicleide available because I heard a performance of Mendelssohn’s Midsummer Night’s Dream overture a few years ago which used one (it may have belonged to Nick Byrne, one of the trombonists).  The serpent might be harder to source, but I’m sure one can be found somewhere.  Is such an original instrument fetish simply a symptom of a jaded taste?

Alternatively, opium could be served.

History Boys

August 26, 2007

History with Juniors resized

OK.  The title to this post was a trick.  I bought this book in 1980, principally for the cover. It still amuses me.

Keeping things in proportion

August 21, 2007

 From the SMH:

Australian Greens leader Bob Brown said going to a strip club was nothing compared to sending Australian troops to war.

“I think the electorate can judge which one did the more harm,” Senator Brown told reporters.

Dining out

August 20, 2007

marriage de convenance 

I have been dining out in the past week.  Three very different dinners.

On Thursday, I dined at Glebe at the home of my former high school music teacher E and her husband, R.  L was there, and I think I was invited as a substitute for her husband G, who had jetted off that day to New York to spend 5 weeks travelling around the USA with his son H, who, I had previously been amazed to learn, is doing a HECS-funded exchange year in the USA whilst still receiving Austudy (or whatever it is called these days).  H and her husband, I, friends since university/high school days of E and R, were there also.  E, R, H and I have often travelled and holidayed together.  I believe that H and E talk to each other on a weekly basis by telephone for half and hour or so and have done so for more than 30 years.  

I was the youngest present by almost 20 years. 

L and G have taken a house in the Dordogne for a month in May 2009, and one of the topics of conversation was who would be interested in sharing this for all or part of that time. 

L, E and R also belong to a reading group.  The latest meeting was revisited and contributions by others to the group were subject to a degree of criticism.  H is also a great reader, and quite a lot of the conversation entailed what novels were being read and what was thought of them.  I was considered bitchy for the (rather wild) accusation that Mary Wesley was a “low brow Iris Murdoch” (a pretty inaccurate charge really, and based primarily on the general wealth and glamour of their characters, though Iris’s plots had greater philosophical pretensions). 

Edna O’Brien came in for consideration as well.  From this I think you can gather that novel reading is a bit of a chick thing in these circles.  I (a retired surgeon) reads mostly politics and non-fiction.

At one point, E, who has recently (and to me surprisingly) been received into the Roman Catholic church, joined me outside for a cigarette to avoid the fairly general antagonism to such matters being expressed inside.  One story on this topic involved L’s sister’s husband, who, after 25 years of marriage and 3 children (and a divorce), managed to have his marriage anulled in order to remarry in the church – notwithstanding the opposition of his (former) wife and adult children, who made their views known to the church authorities – including and up to Cardinal Pell (they are a well-connected family).  Just to put this in context, G (her absent husband) is an ex-Jesuit.

There was universal despising of John Howard.   

On Saturday, I dined chez K and S, in Arncliffe.  They are an “east-west” (or rice-potato)gay couple.  In fact, I introduced them – which so far (5 years on) appears, at least from the outside, to have been a success.  D was busy and did not come.  The other guests were A and P (another “east-west” couple).  P, originally from Indonesia, seemed vaguely familiar. I vaguely thought we must have met at K and S’s place before.  

Rh, who is currently conducting a long-distance relationship with a man in Singapore, arrive later.  Rh always seems to be in a long-distance relationship with someone – perhaps because he lives with his elderly parents.  He had spent a busy day working and then visiting his mother who is in hospital.  She has dementia and has, just to add to this, broken her thigh as a result of a fall in the hospital.  Apparently, she thinks of the nurses as waiters.  Another patient in the ward, who suffered a fall on the fourth floor of David Jones (my vision was of the Men’s store but on reflection I guess it was the Elizabeth Street store) still thinks she is in David Jones.

This dinner went for much longer than Thursday’s, and the topics of conversation ranged far wider.  Catholicism cropped up again, because Rh is a rather right-wing Catholic (he reads the Spectator and both Daily Telegraphs), and he is wondering whether he should, when the time comes, give his mother, born Catholic but lapsed to Anglicanism, an RC funeral.  Cherie Blair came in for a trashing, including her relationship with ER II.  I suspect from the conversation that most of us were working off The Queen for the bulk of our information on this.  

I think everyone present except me had been educated by the Catholics (though going to a private school in the 1970s, I was taught by my fair share of post-Vatican II former religious who were unable to work in the state school system because they lacked formal teaching qualifications.)

Work choices and claims of difficulty in hiring good sandwich hands (and firing bad ones) were another topic (Rh supports Howard on this). Managerialism and the public health system also came up for discussion.  Everyone was unenthusiastic about the Iraq intervention, which Rh put down to the iniquitous confluence of Zionism and evangelical fundamentalism in American foreign policy vis-a-vis Israel, and the influence of the Jews.  He also made claims about the racism (or otherwise) of Judaism (here opinions sharply differed).  There was also an excursus on whether Saddam Hussein, but for his end, was more like Edward I or Henry II.

Other topics included gyms (and gay gyms in particular) and the relative advantages of personal trainers, and some of the things which mortgage brokers get up to. 

Four novels were mentioned, but three of these only because Rh had heard about the TV adaptation of Hollinghurst’s The Line of Beauty and the scene where Nick dances with Margaret Thatcher. This brought forth recollections of the steamy scenes in The Swimming Pool Library. Only I had read The Folding Star.  (I have also read The Spell but it didn’t rate a mention.)

There was keen anticipation of the return, tomorrow night, of Kath & Kim (“at 7.30 on 7”).

There was a little surprise just before the end of the evening, when P suddenly realised that we had met 8 or 9 years ago on Oxford Street.  Later he had met me again and I had given him a little legal help about a tenancy problem he had at the time.   I suspect rather more went on than that, and that my guilty memory has covered a bit of this up.  This was potentially not a little embarrassing.  I still don’t know if I treated him well or not, but he didn’t seem to bear me any grudge.  That was when the fourth novel or series of novels, Tales of the City, was referred tp.  Someone said to  K or S “You’re quite an Anna Madrigal.”  Once again, it could have been the TV seres.

Rh isn’t eligible to vote in this country, but even he was forced in the end to retreat to the position that Kevin Rudd was no better than John Howard.

On Sunday I went to dinner at Mx’s place, in Newtown.  Mx had gathered together a bunch of former colleagues for a kind of reunion.  J and A still work at the law firm where we all worked together, and had just returned from a group love-in (which was why J was in Sydney: she works in Perth).  P, A’s husband, was also there, as well as Ix, now retired from the law.  So that was 4 solicitors, a barrister (me) and a social-worker currently occupied as house-husband and father to a baby and a four-year-old.  Originally there were meant to be 10 of us, but D declined the invitation (he finds large gatherings of English speakers linguistically impenetrable, and wouldn’t have had much to contribute to the potential legal small talk), another young couple cancelled on the grounds of one of them  being ill, and M, Ix’s partner, had to catch a plane at some ungodly hour to Melbourne before flying to Perth for the rest of the week (all for work), and was also guarding his health in the face of some incipient symptoms.  As a result the six of us sat around a table which had the leaves extended for ten, and it felt just a little like the picture at the head of this post.

We talked about buying flats in Elizabeth Bay, old firm gossip (including the dire dinner at the group love-in and a recent judicial appointment in Victoria which none of us thought very much of), Mx’s anticipated new job (and how she landed it), Ix’s studies (he is retraining for a non-legal career), the various travels (Morroco, all sorts of places) of those present and absent partners.  Chris Meney’s spray in the SMH last week (the Catholic case for marriage to the exclusion of other unions) and the much-hated Cardinal Pell got a mention (both adverse), as did Kevin Rudd’s (forced) confession that he had visited a “gentlemen’s club” in New York in 2003.  John Howard didn’t rate a mention.  P related that he sees Hugh Jackman working out at his gym (he and A are the ones thinking of buying a second contiguous flat in Elizabeth Bay with a view to expanding into it when their 2 children get a little older), and that Jackman’s personal trainers make him work pretty hard.  I remembered just in time to remind D (who didn’t come) to tape Kath & Kim in my absence.  I won’t say (having since watched it) that was worth the trouble.

A certain amount of reciprocal entertainment will now be required, though I cannot even approach the culinary skills of E, S or Mx.

Humayun revisited

August 12, 2007


Ali Humayun (pictured right), 26, a Pakistani detainee at Villawood whose application to stay in Australia as a refugee on the basis of either his conversion to Christianity or his homosexuality (/bisexuality) has been rejected,  is suing the Department of Immigration and Citizenship and the company which runs Villawood, variously described in reports as Australasian Correctional Services Pty Ltd and Global Solutions Limited, for breaching their duty of care towards him. (You can find other references here, here, here and, more generally, here.)

As reported, his claim appears to be that, on the basis of an anonymous tip-off (Humayun says it was a letter from a staff-member) that he was planning to escape, Humayun was transferred to the high-security division of Villawood and put into a cell with a known heroin user, whom he witnessed shooting up on a daily basis.  Humayun says that medication which he had been prescribed for depression was withheld from him and he was unable to see a psychiatrist. Heroin was offered to him, including, Humayun says, by Villawood staff.  To the knowledge of the staff (he says) he started using it, ultimately becoming addicted.  He is now on a methadone program. 

Humayun subsequently formed a relationship with a fellow-detainee (since released, pictured above at left), 41. Humayun also says that he has been subjected to bullying and harrassment from which the centre administration has failed to protect him.  This may also form part of his claim, though that is less clear.

Humayun is presently also appealing against the Refugee Review Tribunal’s decision refusing him refugee status.  I have written about his case previously here and also about refugee applications based on homosexuality here. There has been quite a lot of coverage of this issue, although advocates of Mr Humayun and critics of the Refugee Review Tribunal are inclined to pass over the less credible parts of his claims in silence, and to make exaggerated and simplistic accusations about some statements made by the tribunal in this and other cases, as well as comparisions with the Canadian system which only tell part of the story and may make the grass look a little greener than it is.

Humayun has made some claims as part of his application for refugee status which may well appear questionable, or which do not particularly excite my own personal sympathy (specifically, his claim to have converted to Hillsong-brand Christianity because of “9/11”). This sort of thing makes his claim difficult for him, but should not be determinative. As Jenni Millbank (with whom I was at law school: she was reputedly the notorious library lesbian graffitiist) pointed out: “I think there are a number of issues in this case, and it’s very common in refugee cases for there to be issues of credibility. Not all of the claim is always believed, even in successful claims.”

The Refugee Tribunal has come under criticism for rejecting applicants who couldn’t answer questions about Oscar Wilde or Madonna. What the member in question said in the case which I take to be the basis of this charge was:

“The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt’s tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna. There are always political, social and potentially intangible cultural considerations to take into account. However, the Tribunal was surprised to observe such a comprehensive inability on the Applicant’s part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him.”

which is far from the same thing. (If that is the basis of Professor Millbank’s comments in the program linked above I am disappointed in her.)

Canada has had its own problems with Pakistani gay refugee applications in recent years, particularly after tightening of US laws in the wake of 9/11 led to a wave of Pakistani immigration from the United States. I don’t know how we will ever be able to say with certainty that its determination procedure is more accurate than Australia’s. It is certainly more liberal.  It does not, I think, include mandatory detention as here. Human rights culture in Canada is constitutionally entrenched in a way which ours is not.

Many may baulk at a claim which, cursorily read, seems to be “you turned me into a heroin addict.” Plenty of prisoners could probably make the same claim, but I don’t see them lining up in the courts to sue for it (though these days other cases about treatment of prisoners have met with success).  I’m not sure that the distinction between prisoners, who if not on remand are at least imprisoned as some kind of punishment, and refugee detainees (who are not) can really make a difference here. 

The fundamental injustice of immigration law is its very existence: what is the fair reason why some people can enter or stay in a country and others cannot?  The hard men (and women) of Immigration will shrug their shoulders and say that this is just the way it is, and that sympathy for the few who get here, and to whose sorrow we can put a face, is a form of sentimentalism and (and here they sometimes talk about a “queue”) unfair to others we have not seen.  

That may be an unpalatable truth, but that doesn’t endear any more to me those who volunteer to implement it at the pointy end. Sadly, even allowing for the possibility that he may have exaggerated some of the details, I find Mr Humayun’s claims of arbitrary mistreatment at Villawood all too believable.

Grand nonet

August 12, 2007

Tonight I went to hear/see the Australia Ensemble. The program was:

Ludwig van BEETHOVEN (1770-1827): Piano Trio in E flat, Opus 70 No 2 (1808)

György LIGETI (1923-2006): Ten Pieces for wind quintet (1968)

Luwig SPOHR (1784-1859): Nonet in F for flute, oboe, clarinet, bassoon, horn, violin, viola, cello and double bass (1813)

The Beethoven trio was the less well-known of two which make up his Opus 70 (the other is the “Ghost” Trio which probably ranks only second to the “Archduke” amongst Beethoven’s trios so far as repute or renown are concerned). There was some amusement just before the players started when the cellist, Julian Smiles, announced a “wardrobe malfunction” and removed his cummerbund – “It was going to come off anyway.”

I sit in the fourth row from the front. It was a genially intimate performance, though in the third movement I felt that Ian Munro, the pianist, was playing from a slightly more extroverted song-sheet than the violinist, Dimity Hall.  The piece felt oddly Schubertian: I’m thinking in particular of some rather delicate arpeggiations in the piano’s upper register set off against the theme in the third movement, though clearly Beethoven thought of this first.

The Ligeti was more challenging, despite the helpful instruction by Roger Covell in his program note that, contrary to popular misconception, the first rather than the second syllable of his name bears the stress. Most of the pieces are quite short; the ninth had a particularly striking effect with the clarinet, oboe and piccolo all playing piercingly loud and high (quite a few of the audience shielded their ears) and a mysterious lower harmonic which emerged from somewhere yet also from nowhere. It received only a lukewarm reception. I think it was unwise for Paul Stanhope (who conducted) to allow the atmosphere to be broken between movements.

As I have mentioned before, the Spohr Nonet is one of my favourite works – I have a weakness for underestimated, officially second-rate or second-tier works or composers (as a child I had an Offenbach craze, not to mention a taste for Gilbert and Sullivan).  Compared to the performances of this work I heard earlier this year by the Sydney Omega Ensemble, it was a polished performance, but not always as interesting. 

The violin carries the lion’s share of the musical material.  Whilst Dene Olding was a class above Emily Long, the Omega Ensemble’s violinist, I had hoped for more than he gave. At times he tended to skate over the surface of the elaborate figuration where a more scrupulously accurate account would have been more sparkling. 

So for me it was a case of high expectations not quite met.  Sorry to say that.  Still, I enjoyed it, as did P, who lacked my burden of anticipation.  We both agreed that the medium-warm applause at the end was less than the performance deserved.  Perhaps that is the fate of amiable music.


August 10, 2007

Tonight I went to hear the Sydney Symphony perform Messiaen’s Turangalîla-symphonie.

It is difficult to judge such a performance. The work is massive and astounding, even though it is, as Elliott Gyger commented in his program note, the most conventional of Messiaen’s orchestral works. It is atypical in that it lacks birdsong elements and the mystic [Roman-]Catholicism which suffuses his many works. For the latter, fond though I am of the exquisite metaphysics of his Vingt Regards I am personally grateful: I get more than enough of that in the Uncle-Tom-ish rantings of John Heard, (google if you wish: I refuse to link to him) if I feel like getting wound up.

Two only notes on the performance:

It was another triumphant return for Simone Young to her home town. She got a roar of applause even before the piece began.

Cedric Tiberghien played the solo piano part marvellously. I don’t think it is his fault that, by the time the piano had to make its sweetest contribution, it was rather less in tune in its upper register than would have been optimal. That’s the fault of the composer in requiring so much fortissimo chordal work earlier in the work.

The other singular aspect about the Turangalîla-symphonie is the part for the Ondes Martinot. This is a kind of electronic musical saw invented by a man called Martinot in 1928, and very similar to the Theremin. In its more lyrical mode it sounds rather like the distinctive sound for the main theme in the music for Doctor Who.

I have a phobia about the mixture of electronic, or at least amplified, and acoustic instruments, This is because, especially when mixed by the rock-and-roll-habituated guys at the sound desk, there is an almost inevitable disproportion between the electronic sound and the acoustical sounds, with Liliputian consequences for the acoustic musicians. Yet the Ondes Martinot suffers from no such disproportion. I think this is because it comes with its own amplification rather like the small box-amplifier that street buskers use, and also because it plays, proportionately, with massed acoustic instruments. It is not wired through the auditorium’s main PA system. That is a mercy, and a good thing.

There are two more performances: on Saturday and Monday. I can’t go on Saturday, because I am going to hear the Australia Ensemble play, amongst other things, one of my very favourite works, the Spohr Grand Nonet. I am sorely tempted to go again on Monday.

A classic resulting trust

August 9, 2007

I don’t know if I have the courage to attempt to explain to a lay (ie, non-lawyer) reader:

  1. the concept of a trust;
  2. the concept of a resulting trust; and
  3. the concept of a constructive trust.

As to (1), most people know that you have a trust when somebody (a trustee) appears to own something, but really they only own it on behalf of somebody else or for some special purpose (or sometimes a combination of those things).

One kind of resulting trust is when the purpose of a trust has come to an end.  Then there is said to be a resulting trust back to the person who gave the property to the trustee in the first place.  (There are some sophistications to this which I must pass over for the sake of simplicity.)

Another common type of resulting trust is when person A gives something to person B, or provides person B with the purchase price for an asset which is then apparently owned by the person B, but it was never the intention to actually give anything to person B or for person B to truly (the term of art is “beneficially”) own the asset.  In such cases, person B never became the true owner of the thing given or the asset purchased, and they held it on a resulting trust for person A.

Often, in the factual circumstances, this will overlap with a constructive trust, which is where, because of a range of possible circumstances surrounding how person B became the owner of an asset, the court will order that person B holds that asset on trust for person A.

Shang v Zhang [2007] NSWSC 856 is a recent judgment of Justice Young in the Supreme Court of NSW which shows how these doctrines may overlap, and which also has the advantage of some rather colourful facts.

In 1999, Mr Shang, the plaintiff, who lived in Hong Kong, planned to send his adult son, Jin, to live in Sydney on a student visa with his nephew, Nick (Anglicized name) and Nick’s wife, Ms Zhang (the first defendant and an Australian citizen).  As part of this plan, Shang provided substantial funds, transferred via Jin’s bank account in Australia, which were used to purchase various properties in Zhang’s name, to repay the mortgage on one of those properties and to fund a company which purchased and ran a pizza shop in Glebe.

To quote from the judgment:

As things worked out, the first defendant and Nick separated on 18 January 2004 and divorced in 2005. The first defendant and Jin formed a romantic relationship and a daughter, Dorothy, was born of this relationship in February 2006.

OK.  Just to recap before we go further:

  • Shang is the rich father in Hong Kong – he was the plaintiff;
  • Jin is his son;
  • Zhang is the wife of Nick, Zhang’s nephew and Jin’s cousin, subsequently Jin’s lover and the mother of Jin’s daughter, Dorothy – she was the first defendant.

I know you will be confused if you don’t keep this clearly in mind, even though it is a lot simpler than those Russian novels with all those patronymics and matronymics. 

In April 2006, Jin returned to China (the judge may mean Hong Kong SAR).  In June 2006, his father, Shang, found out about Jin’s relationship with Zhang and about their daughter (and his granddaughter) Dorothy.  It can probably be assumed that he was not pleased with such a family scandal.  He demanded that Zhang return the properties or their proceeds to him. 

By this stage, Zhang:

  1. Owned a house in Chatswood, which had been purchased in 2005 for $1.2 million.  The court subsequently found that this was made up of $150K from Zhang; $250K of Shang’s money from Jin and a bank loan to Zhang of $800K;
  2. Had received a further $250K of Shang’s money from Jin which she had used to pay down the mortgage on the Chatswood property; 
  3. Owned an apartment in Sussex Street which had been purchased with $500K of Shang’s money in 2001;
  4. Had retained all the proceeds of the sale of the pizza shop, and deregistered the company which had been used as a vehicle to buy it without repaying the $350K of Zhang’s money which had been lent to the company.

Zhang appears to have taken the position that the properties either belonged to Jin, or that they or the funds provided by Jin were gifts to her.  After Shang asked for repayment of the money or return of the properties, Zhang mortgaged the Chatswood and Sussex Street properties for a further $600K and passed these amounts through her father’s bank account in Hong Kong to purchase “financial products” there.  Something similar appears to have happened previously involving her mother in relation to the money from the sale of the pizza shop.

Shang sued Zhang and her mother, as well as, for procedural reasons which are too complicated to go into here, his son, Jin (who in fact gave evidence in his father’s case). 

The basis on which Justice Young upheld the claim was of a resulting trust, although it is probably more accurate to say that, for the properties, there was a chain of resulting trusts: the money which Jin contributed was Shang’s; the assets bought with that money were not given to Zhang and were in turn held on a resulting trust for Jin as trustee for Shang; the moneys raised against the properties in 2006 and the investments purchased with them were the proceeds of those assets. The loans by Jin to the company for the pizza business and to Zhang to pay down the mortgage were owed to Jin on a resulting trust in favour of Shang.

In the end there was no claim upheld against Zhang’s mother, because it could not be established that she knew that any transactions she was involved in related to funds held on trust for Shang or in breach of those trusts.  However, Justice Young said:

I do not believe her evidence in the witness box. She was willing to lend her name to the first defendant [her daughter] to assist in hiding money and I do not consider that she should receive any costs of these proceedings.

There was also an alternative claim for a constructive trust, apparently on the basis of knowing participation by Zhang in a breach of trust by Jin, in that she knew that the money was provided to him for one purpose but assisted him in using it for a different purpose.  In Australia this is known as the “second limb of Barnes v Addy.”  This refers to a leading English case of 1874.  Funnily enough, a few years ago when I was in England speaking to lawyerly witnesses for a big law case I was involved in, it became clear that this case is less well known there than here.  It appears that Australians are peculiarly fixated on this case as a classical and almost statutory exposition of principle.

It is also possible, since Zhang received trust assets, that the claim was for knowing receipt – known in Australia as the “first limb of Barnes v Addy.”

There has been some judicial controversy as to the degree of knowledge or dishonesty required to enliven liability under the “second limb.”The English courts appear to require a higher degree of dishonesty than the Australian courts do before making a third party liable who has not actually received the trust property.  This is why I take it that the case was approached at some stage as being advanced under the “second limb.”

Justice Young does not seem to have been particularly concerned to spare the feelings of the parties. Even though it was unnecessary to do so, he offered a passing comment on this claim.  He said:

66 As I hope my reasons have shown, there is no need to get into this area because the case is a clear one on the facts for a simple resulting trust. The plaintiff never ever intended that the first defendant should end up with almost $2 million of his property.
67 However, it was put that the pleadings do not indicate any dishonesty on behalf of the first defendant. So far as the resulting trust case is concerned, that is right, but it is irrelevant.
68 However, I said earlier that I would deal with the question of the first defendant’s behaviour whether honest or otherwise. It seems to me that when one knows the following: (a) that one’s consort has virtually no money of his own and that all his money comes from his father; (b) that when the father asked for the money back the person who has it borrows on the trust assets to the hilt, moves the money from her own name to that of her parents and then off-shore; (c) launders money from the trading company by deregistering it and giving it to her mother – one can only explain that conduct by dishonesty or by a misguided sense of self protection.

This doesn’t really seem to settle the matter at all, since he doesn’t say what the consequences of a “misguided sense of self protection” would be.  All the same, you don’t often see “consort” used in this sense in this day and age, do you?

For the law nerds, there is another interesting point in this case invoking the application of section 56 of the Civil Procedure Act, but I think it is just too technical for general consumption, even beyond the bounds of what I have related already.