Archive for August, 2008

Unfit for publication

August 31, 2008

This Sunday afternoon I went to a forum put on by the Sydney Pride History Group. This was a presentation by Peter de Waal about his book Unfit for publication.

The book is a collection of primary sources dealing, chiefly, with all trials for sodomy in the Supreme Court of NSW from its inception in 1823 up to 1930 (the end-date was determined by NSW Archives’ 70-year rule for documents of this nature and when Peter started the project.) The main records used are the depositions, the judges’ notebooks, prison records and press reports. In addition, de Waal has included some documents about some earlier trials, and also unearthed from the Police Gazette details of about 2,500 cases heard in the latter part of this period in the Courts of Quarter Sessions (roughly equal to today’s District Court.) The documents are only sparingly footnoted: the true historical work using these documents is yet to come. In the meantime, they stand as a special local equivalent to the Monumenta Germaniae Historica.

The title comes from a phrase often included in the newspaper accounts when passing over the details of the evidence. Apparently, courts were also on occasion cleared of all under 21 and all women.

Peter de Waal is himself famous as being possibly the first homosexual to out himself publically in Australia, when he appeared on the ABC’s Chequerboard program with his partner, Peter Bonsall-Boone in 1972. As a result of this Peter Bonsall Boone lost his job as secretary to the parish of St Clements Mosman. Even I can remember that. They still live together, although (as the link above nicely puts it) “their relationship has changed over time, and other partners are now on the scene.” PBB was at the forum and helped to type the documents which de Waal read onto a dictaphone at the archives offices.

I read about this in the Sydney Star Observer, though that newspaper failed to include either the location or the starting time for the event. This may be one reason why the attendance was, I expect, disappointing for the group. Apparently about 30 people indicated that they might come (you were asked to RSVP in advance for catering purposes as light refreshments were provided) but we were less than half that number. D came at the start but decided it looked a bit too academic for his taste. There were possibly 2 people younger than I.

The book is self-published in three A4 volumes. There has been a first edition of 50 copies and I bought the second-last set of a second edition of 20. That’s not a long print run! There’s no copy in Sydney University’s Fisher Library and I couldn’t track down a copy in any lending library at all.

I may write something more about it here once I have had a chance to look at it properly. I expect it is the sort of book to dip into rather than read cover to cover, so perhaps I shall keep it handy in the smallest room in the house. [TMI?] I promise to wash my hands before rushing to the keyboard to offer any further account.

Rent increase

August 28, 2008

Time for a whinge.

Last Friday I received a call from my landlord’s real estate agent. It was an unpleasant surprise. Apparently the agent claims to have posted to me a notice of rental increase over 5 months ago, to take effect from 31 May. I was unimpressed by the efficiency of the young man in question whenever I dealt with him, and he seems to have been “let go,” so I have my doubts. I certainly don’t recall receiving the letter, and I am a postaholic so far as checking the mail is concerned.

My landlord has sent me the paperwork, including the ledger which ostensibly records the posting of the letter and the depressing statistic that I have paid the landlord over $100,000 in the 6 years I have been here.

But apart from the question of whether I would now need time to apply for an order that the rent increase is excessive, the question is: is it?

The increase is 12.3% The last increase was about 8 months earlier. By my wonky maths, if you assume such conduct may continue, that is an annual rate of increase of 18%. This is an infinitely regressive game, but for completeness, the previous increases I can track down were 3.1% in 7/05, 3% in 7/06, 4.4% in 3/07 and 2.8% in 10/07.

From the Rental Bond Board’s quarterly report based on bonds lodged I find that rents for 3-bedroom “all dwellings” in Marrickville LGA increased by 5.1% in the June quarter, and 14.5% over the previous 12 months.  There are figures for units and also figures for “separate houses” but it appears from the figures on total bonds lodged and held (table 7) that the number for “all dwellings” in Marrickville includes amost as many dwellings again as flats and “separate houses” combined.  This could be because people lodging bonds for semi-detached or terrace houses don’t think they count in either category.  (Does this also mean that there are a lot of dwellings which slip betwen the cracks on numbers of bedrooms?) 

The figures for units (table 4) are 3% and 13.3% respectively, albeit that 3-bedroom units are something of a rarity, and for separate houses (table 3) they are 10% and 25%.  Some support for my theory as to what is meant by a separate house is lent by the very healthy rents quoted in that category, which are way above my house’s price-bracket even at the bottom quartile.  It seems reasonable to suppose that a semi or any dwelling at my price level (it’s a shabby house with some conspicuous defects though of course I appreciate its charm) will sit somewhere between those figures.  That leaves things in a grey area: 18% is well over 14.4%, though there is still that 25% figure looming at the other end in terrorem.

But all of this talk may well be academic.

Table 7 shows that while the total number of bonds held for Marrickville LGA has increased by 0.1% in the quarter and decreased by 0.1% over the past year, the number of new bonds lodged has decreased by 8.2% from the last quarter and 2.3% annually.  The figures for the same time in 2007 are -0.1%, 1.2%, -10.3 and -8.6 (where “-” means a decrease). The quarterly change for new bonds may be seasonal, but the rental stock as a whole has contracted by over 10% over the past 2 years.

You can also find figures just for Dulwich Hill, but the numbers are apparently too small to give meaningful trends.

It’s not a good time to be looking for a new place to rent (is it ever? – well, yes it was in some ways when I moved in, as I was able to get a new hot water system by promising to stay for 12 months back in 2002), and the prospects of extracting a more favourable bargain by negotiation (let alone by rushing off to the tribunal) are correspondingly poor. In the scale of things, the $480 arrears is neither here nor there, but the increase itself can only compound with future rent hikes.

That’s not very cheering.

How do you surrender an electronic file?

August 27, 2008

I’ve given away my punchline here in my heading.

In Think Global Recruitment Ltd v Moultrie [2008] NSWSC 869, Think Global, an international recruitment company, sought interlocutory injunctions against Moultie and 4 others, former employees of TK.

Earlier this year, Moultrie, the first of these employees to leave TK’s employ, had gone to work at Global Ambition, which was in the same line of business. Shortly after, Think made the other 4 redundant and closed its Sydney (and only Australian) office. Moultrie got them all jobs working with him at Ambition.

Think Global wanted interim orders (that is: orders before the main trial) stopping them all working for Global Ambition because of the non-compete clauses in their employment contracts. Think also wanted interim orders about disclosure of confidential information.

Justice Austin wasn’t satisfied there was even a “serious question to be tried” (which is what you need to get an interim order) about breaches of confidentiality. He declined to grant injunctions on the non-compete clause because of the balance of convenience -if granted, the orders would deprive Moultrie et al of their livelihood (which in itself is a relevant argument about whether it was even enforceable), whereas Think Global didn’t really even have an office in Australia any more. Cunningly, Moultier et al also offered:

“an undertaking to the Court that from certain specified termination dates until the hearing of the proceedings or further order, they will keep or cause Global Ambition to keep full and complete records including candidate details, dates, placement details, fees generated, costs and profits, in respect of all transactions involving the placement by any of the defendants of candidates for recruitment with PricewaterhouseCoopers Canada and KPMG in the Cayman Islands, Russia and Bermuda. “

Well, the judge thought this was significant, but it is too complicated to tease out.

All of that is quite interesting and possibly informative about the business of recruiters, seen from a certain wrong-end-of-the-telescope legal perspective.

But Justice Austin did find that:

there is evidence that Mr Moultrie received electronic files made during the course of his employment that are the property of the plaintiff, and therefore he is obliged by clause 18.1 (second para) to surrender them to the company.

So how do you surrender an electronic file? There are two aspects of “surrender”: one is a return to Think Global, but Think Global presumably still has its own copies of the files, so the live issue is the bringing to an end of possession of any copies by Mr Mousrie. Aren’t we being told all the time that an electronic file will always be there somewhere, no matter what you do to cover your tracks or erase it? How far does Mr Mousrie have to go?

奥运会 – Olympic Games – A view from China

August 26, 2008

This is the peroration from a Chinese blog post: Random Thoughts Following the Olympic Games Starts. If you scroll down on the link you can see the full text in English.

The successful opening of the Beijing Olympic Games pushed a new China image to the world. It is strong but mild and non-aggresive. I trust that any viewer who had watched the performance on the opening ceremony or anyone who recently visited China would have his own judgement for such a China, who previously did not introduced itself to the outside world in such a manner and what’s more, with a differential fall between the reality and what was previously smeared up in the West. For the Chinese, the Western press, once regarded here by some as objective and just, showed off its hostile and malicious sides.

The hosting of the Olympic games hosted here makes us to take a second look at ourselves, who we are, what we can, where our potential is, and where we are going. From the precise tic-toc arrangement of the performances at the ceremony and our achievement in preparing and servicing the game, we become increasingly clear and confident of our capabilities, of what we could achieve through our mutual effort. The anti-China forces gave a stimulus to the Chinese to embrace closer to ourselves and failed to alienate us. This must be quite out of their expectation.

It is a fact China keeps becoming powerful. We don’t have to deny that we have grown up higher. The lyrics in the Hymn to the Country cannot be more true: Praise to our country, from today she goes strong and prosperous … through so much hardships we finally won our liberty. The heroic people has stood up !” It is such a blessing for the people in our current generations to live through and witness the progress of our country, from weak to strong.

However my hope would be that, such a strong comeback of this nation will not blind our eyes in our direction towards an even higher civilization and prosperity, it will not foster self-conceited, self-involved, petty-minded nationalism. Instead we will become to be a mature world power. Even a strong military force in reserve doesn’t need to be exerted to guarantee our prosperity. Soft power should be given priority in our seek for identity in the international community. In other words, to be strong is not to destroy, but to have the power to destroy and not to destroy. In another respect, we shouldn’t mind too much what the Western world think of us. It would be utterly wrong to project their reactions to our path of development, or to adjust our path whenever they protest. It has never been so clear to us that, the more we care about their response, the more they will use our weakness to manipulate us. We should have the confidence suitable for a big nation like ours, and to smile through our course to an even better nation, while those anti-China forces become desperate and unwanted.

China, go ! With the might how you could move yourself through the Olympics. Go !

There’s quite a lot of food for thought there. As I have already implicitly suggested, you need to read the full text to get the full argument.

Cockatoo Island

August 26, 2008

On Sunday afternoon, D and I took the opportunity of the Biennale installations to take a trip to Cockatoo Island.

For years, this was the mysterious ferry stop where you were not allowed to get off. It was also the workplace which killed my friend Dx’s father, Gx, 40 years on, because of his youthful exposure to asbestos there.

D and I made a previous attempt to get there a few weeks ago, when the ferry scheduled to stop at Huntley’s Point simply sailed past (less as a metaphor than as usually applied to buses). When I pressed the help button at the wharf I was told that sometimes the ferries fill up at Olympic Park and then they simply don’t stop for the rest of the route, except, I presume, for disembarking passengers. So this time, for super-abundant caution, we drove all the way out to Homebush Bay, where the ferry started. As it turns out, this was unnecessary as we could easily have got on from any number of closer wharves. An alternative would have been to take the free ferries which have been running from near the Museum for Modern Art at Circular Quay, but I didn’t relish having to travel to the CBD only to leave it again.

As ever, D and I only arrived rather late in the afternoon, and straight away I became anxious at the sight of a long queue snaking away from the wharf of people waiting for the free ferry off the island. I wondered why they bothered, though later, after electing to take the non-free Sydney Ferries catamaran to Circular Quay and forking out $5.20 each for the privilege, I saw things differently.

Our viewing of the installations was pretty cursory, in part because of the lateness of the hour coupled with my anxiety about getting off the island, and also because, even though it will all still be there when the Biennale is gone, the place itself was such a distraction.

It was less a distraction for D, who, coming from China, has experience of large enterprises, but for me there was a definite mystique to the heavy-industrial archaeological remains. The first link above has many better photographs, and since it has opened for visitors the island has been extensively documented on the web, so it is with diffidence that I offer my own rather blurry pictures:

D was more interested in this:

Please overlook the naff public seating and concentrate on the graffiti, which appears at the entrance to one of two tunnels carved through the rock at the centre of he island.

One of the paradoxes about Cockatoo Island is that, as a large government industrial enterprise, it harboured a large unionised work-force (including left-wing unionists) whose work, especially throughout the cold war period, would seem inherently aligned with more right-wing purposes of state. (Notoriously, in the world of Gerard Henderson and his ilk, there was industrial resistance here in the opening years of WWII when communist attitudes to the war were governed by the Hitler-Stalin pact of 1939.) I assumed (perhaps wrongly) that this was the irony addressed by the installation which piped through this room a slow unaccompanied female rendition of The Internationale, culminating in the line, which is virtually the only line I really know from the song: “The Internationale unites the human race.”

There has been a complaint (more fully reported here) about another “art-work” which we didn’t get to, which incorporates homophobic and racist graffiti uncovered on the site. Personally, I’m content to let such things stand as historical documents, and I doubt if most people coming to Cockatoo Island would respond to them otherwise. A warning sign has apparently now been added. Like nudity warnings, I wonder if that is not a little nannyish. Apparently, some of the graffiti identifies individuals as homosexual or engaging in homosexual practices. It is a lawyer’s plight to see causes of action everywhere, so naturally I wondered if this might ground any fresh actions in defamation.

However dewy-eyed one can become about the heavy-industrial archaeology, I did not forget that this was the place where, 45 years ago, Gx was killed, even though he died less than 3 months ago. And of course there were other fatalities and injuries.

D pulled me aside, I thought, to look at this:

In fact, he wanted me to see this:

I particularly like the cigarette butt.

A moment after this picture was taken, the gull stood up in an exhibition of rage designed to drive us away, exposing a single blue-grey coloured egg. You’ll have to take my word for this, as the rage apparently deterred me from taking the picture which I thought I had taken.

The Biennale runs for another 2 weeks (to 7 September). The island will still be there for a while after.

Why I am not a critic – 2

August 25, 2008

Australia Ensemble – Dean, Crumb, Messiaen

On a recent Saturday night I went with my former piano teacher, P, to see the Australia Ensemble.

The program was, at least on paper, daunting:

Brett DEAN (b 1961): Demons for solo flute (2004)

George CRUMB (b 1929): Black Angels: 13 Images from the Dark Land, for electric string quartet (1970)

Olivier MESSIAEN (1908-1992): Quartet for the End of Time for clarinet, violin, cello and piano (1941) – 100th anniversary of the composer’s birth

I thought I detected some “churning” in the audience. Some of the regular attendees may have stayed away, but there seemed to be more young people than usual present. Judging from the applause, the Crumb, made famous by the Kronos Quartet, had drawn its own crowd of supporters.

The Brett Dean piece was one of a series commissioned by a flautist in a series of commissions which is intended to work its way right through an alphabet of composers – presumably, it will be relatively easy to get the gig if you are an “X” or “Z” composer. It made much of repetitions and returns to the note “D.”

My elder sister first learnt flute, and I myself learnt it as a child when attending Artarmon Opportunity School, and indeed I can stake a (very tenuous) claim to being one of the last students there of the famed Victor McMahon. VM also taught Geoff Collins, who was 4 years above me at Atarmon, and GC really is just about the last true student of VM.

Probably because of this early imprinting, I find that my by now wavering perfect pitch (confused by exposure to Baroque pitches, but largely weakened by age and less frequent playing) remains quite strong for the timbres of the flute. I had no difficulty spotting the returns to D. The piece started with the obligatory modern/agitato mode of modern flute music (partly, in this case, with the intention of being Demonic). I’m not so keen on this sort of stuff (sounds too much just like sisterly practice from the other end of the house) but as it progressed the emotional range became more various and by the end I had quite warmed to it. There were various relatively novel techniques employed (singing, multiphonics etc) but these did not seem at all gimmicky as they sometimes do, but instead totally integrated to the musical expression.

The Crumb is one of those famous pieces which one often hears. At least, one often hears its opening, which is not really at all typical of the piece as a whole. Scored for an amplified string quartet, the piece also requires players to play tuned wine-glasses (with a bow and finally by striking them) as well as tam-tams and maraccas. JP, a former student of P and now a composer, told us at interval how he has scarified his composition classes by cranking the volume right up for that famous opening and even by listening to it in the dark. The Australia Ensemble’s approach was to use the amplification as a means of making available sounds which would otherwise not be heard at all because they are made in novel ways which deprive the instruments of the assistance of their natural resonance. This seems to me the right approach, and certainly in a program which also has acoustic items (the Dean was also, I think, mildly amplified), it saved us from dulling our aural sensitivity with electronically scaled volume.

Performed with the lights lowered and with the array of extra instruments to which the players moved as necessary, the piece has a definitely theatrical aspect. As I have already said, the opening is not really typical of the piece, which includes glass-harmonica-like effects, and a pseudo-viol sound produced by bowing above the fingers on the finger-board. The way the sound is made is an important part of the theatre: if you were just listening to a recording, you might well think “those viols sound a bit odd.” I didn’t worry too much about the elaborate program, but just went with the flow – a kind of “what will they do next?” approach.

JP left at interval. As a composer, he doesn’t go out to listen to any of that old music, and that apparently includes Messiaen.

The Quartet for the End of Time has acquired iconic status, in part because of the circumstances of its original composition, when Messiaen was serving as a French prisoner of war after the defeat at the hands of Germany in 1940. To tell the truth, I’m not sure how often if at all I have heard it played in full. A friend at school who played the clarinet liked to assay the movement for solo clarinet, but I doubt if he was really in a position to give a fair reading of it.

It’s early Messiaen, a bit like Firebird is early Stravinsky, albeit that Messiaen did not engage in the stylistic rebirths that Stravinsky serially underwent. It felt, comfortably, a masterpiece. The performance was entirely satisfying.

There are lots of things I could say about it, I suppose, but it was at this point when I started writing this post that I ran out of puff. What could I really sensibly say to evaluate either the piece or the performance?

That is another reason why I am not a critic.

The Ensemble’s Stuart & Sons piano is at present out of commission as it is being restored/reconditioned. P preferred the substitute Steinway.

Meanwhile, at other performances

On Friday I went to David Robertson’s illustrated lecture performance with the SSO: Debussy – Prelude a l’apre midi (which, strangely, Robertson thought, evoked the atmosphere of an early morning on the Seine) and Jeux (according to Nijinsky a coded narrative of something which probably originally happened at a beat), finishing off in the second half with Messiaen’s Chronochromie.

The evening was enjoyable if thinly attended despite an apparent three-line whip applied to the SSO’s free list. Mr Robertson had much to say of interest, though some of the analogies he drew to the visual arts (projected on a screen behind the orchestra) seemed either forced or arbitrary, and as ever with these things, the first half, which had most of the talking, seemed to go on too long. Overall, the most efficient use of a conductor and 100 players is for the conductor to conduct and the players to play: it seems so extravagant to have them just sitting around while the big man talks.

On Saturday, I went to Opera Australia’s Orlando. There was a (to me) surprising number of empty seats. As Sarah has pointed out, what people think of this production all turns on the [toy] sheep which are used as a running gag. The problem with running gags is that one can easily tire of them. I didn’t tire so much of the sheep as of the audience’s giggling response to them: right at the start Dorinda, the shepherdess, indicates that her job gives an opportunity to observe the comical behaviour of her charges, and the opera as a whole is a sustained essay in the pastoral which traditionally does involve “silly sheep.” Arguably, a director does need to take account of the likely audience reaction, and so perhaps the adverse reactions by the critics in The Australian and the SMH were justifiable on that count.

Of the singers, Rachelle Durkin as Angelica made the strongest impression, though Richard Alexander as Zoroaster also impressed until some strained upper notes in his big aria towards the end.

The performance started at 7pm, which is usually the sign of a long evening ahead. I can only think that some numbers were cut, as we emerged not long after 9.40 and the scheduled finishing time was in fact 9.35. For starters, I am sure that when I last heard Tobias Cole as Medoro at the WA Opera in 2000, he had a long slow aria (memorable because that sort of thing is his forte) which didn’t seem to be the case on Saturday.

You can see that the critical urge is not yet totally overcome. I shall endeavour to offer more systematic reasons why I am not a critic in a later post.

Why I am not a critic – 1

August 23, 2008

Earlier this week I was talking to my friend Dx. He is a pianist. I mentioned I had been to the Bronfman performance of the Tchaikovsky Piano Concerto. He asked me how it was. Specifically, he asked me: “Was it good?”

I was at a loss for an answer.

In a general sense, the answer was “Yes.” At least, I enjoyed it. If he had asked me straight after I heard it, I would probably have been able to give a more detailed answer about what I liked and why. But even then I don’t think I would have been able to give the answer Dx was after.

Dx has played the Tchaikovsky Concerto – not necessarily to his own satisfaction – and I know from my own experience that playing a piece sharpens our views about how something should be played. It generally enhances our appreciation of what is difficult and therefore especially commendable if the difficulty is overcome. At least, that is so for me and I know of no particular reason why it should not be for others.

Dx has some fairly positive ideas about what is good piano playing including some quite firm proscriptive views which delineate its boundaries. I think that these are fostered by his ongoing work as a pianist in a similar if more generalised way as my views of playing specific pieces are underpinned by having played them.

I suddenly realised that my own views about good playing have become much woollier, and that this is because I am no longer playing the piano at all.

I am hardly in a position to be surprised about this, but it’s something I need to reflect on. I played the piano regularly from the age of about 7 to 18, and then from 25 to 46 or so. Even in the years from 18 to 25 I played the piano far more than I do now.

I do know that this saddens me. So what am I going to do about it?

It’s also one reason why I am not a critic.

O brave new world…

August 21, 2008

…that has such people in it. (as they say).

I’m thinking especially about Germaine Greer and all the more specially, of course, of our own Miranda. (You need to click the link to see the illustration, which is yet another reference to the cover of The Female Eunuch.)

Miranda is at present on a bit of a roll as a pop psychologist. Hot on the heels of her triumphant analysis of Peter Costello as a younger sibling, she has tried her hand at Germaine Greer on the occasion of GG’s recent essay on Rage.

These are the fruits of Miranda’s psychological labours, as I have gathered them from where they are scattered throughout the column:


Most reasonable adults control themselves at dinner parties, especially ones held in their honour, and don’t fly into a rage when teased. All power to Greer for not needing to belong or grow up, but she is like a particular type of precocious indulged child, allowed latitude because she is so interesting. No society can operate with more than a handful of entertaining anarchists.

This is a reference to Greer’s own account of an occasion when her own rage brought a dinner put on by a friend for Greer’s own birthday to come to a premature end with which Miranda opens her piece. At the very least, Greer must be telling this story in order to give an inward or subjective account of rage. Greer lives her life at a high voltage and it is not so surprising that something like this might occurred. Even if, as seems more than probable, she is capable of and has committed great acts of rage, that cannot be dismissed as a valid basis for a subjective account.


It was striking, watching Greer perform on the ABC’s panel program Q&A last week, to see how coquettish she can be, describing herself as “naive” and the book that made her famous, The Female Eunuch, as “girlie” and “jejune”. All her life she has been agitating for the attention of men, one way or another, with other women as competitors.

I almost didn’t include the first sentence, as if I were to include all of Miranda’s personal observations about Greer I would be quoting a disproportionate amount of her article. At this point, I want to concentrate on the psychology.


She [Greer] hints at the roots of her obsession in her book Daddy, We Hardly Knew You, about a father she has called distant, weak and unaffectionate.

I almost omitted that as simply being an account of what Greer has said, but it probably contains an additional psychological conclusion or hint at one.


Never having had children, or lived an extended period of domestic bliss with a man, she has rejected the experience and choice of most women. Her 2003 picture book The Beautiful Boy, which lusted after teenage boys whose “sperm runs like tap water”, indicates her emotional development never progressed much past 12, leaving her suspended in a mindset of doing or saying anything to get a boy’s attention.

There is an earlier reference to Greer’s having been married for a week in 1968, and being of a generation which despises marriage, the fashion of whose “middle age” was “immortalised in the 1962 Edward Albee play-turned-zeitgeist movie Who’s Afraid Of Virginia Woolf.”

I’m not convinced the dates really match.

There’s more in Miranda’s article than that, but then I’m sure there’s more to what Germaine has to say than Miranda is letting on. So to the extent that now I’m interested to find out about what Germaine actually said, Germaine seems the real winner here. If it were not for that, and for the possibility that GG may indeed be said to be dealing in the same currency, albeit at a more generalised level, I’d have to wonder if Miranda had not strayed at some points beyond psychology to personal abuse.

Papers referred

August 20, 2008

Quite often when parties bring a claim to court it turns out that they have been doing something which will get them in trouble.

For example, parties who need to establish the state of their financial affairs for the purpose of backing up some kind of damages claim may turn out not to have lodged any tax returns or to have failed to collect and remit any GST on their business takings.

Another quite common instance is when a party seeks to put documents in evidence on which stamp duty has not yet been paid. The court will not usually admit the document without an undertaking which can be relied upon (which generally means from the party’s solicitor) that the document will be stamped. If you can spot an unstamped document this can be an easy way to put a spoke in an opponent’s wheel, especially when an urgent application is being made. Judges are also quite capable of raising this objection of their own motion.

Sometimes parties have misrepresented their financial or personal situation to the government in order to obtain some kind of benefit. Many are the de facto partners who have also drawn Social Security payments as a single person (the dole or a pension, especially the supporting parent pension) to which they would not be entitled if the true situation were known to Centrelink.

Sometimes, usually in order to preserve or obtain some government benefit or other, people conceal their ownership or part-ownership of an asset by allowing someone else to become the legal owner. They are then vulnerable to the legal owner of the asset dealing with the asset without their knowledge or simply denying their interest.

This has been going on ever since, in the late middle ages, landowners transferred the legal ownership of their land to dummy owners of one sort or another in order to avoid the incidence of feudal dues. The idea of a trust, where the legal owner is subjected to obligations to the true, beneficial, owner, originates from this time.

Where the nefarious purpose is inextricably bound up with the case which a party seeks to advance, the approach of the courts has been to refuse to assist that party. The result then is that, as between two cheats, the other cheat would get away with it and the loss lie where it fell.

In recent years, the courts have become more sensitive to the potential disproportionality between the wrong-doing by the party seeking to make a case and the loss which that party would suffer as a result of this. In Nelson v Nelson, a case which is too complicated to describe in detail but which in particular involved a serviceman’s widow facing a loss of about $200,000 because she had wrongfully obtained a subsidised rate of interest on a loan of $25,000, the High Court rather creatively held that she should be given relief (and hence get that money to which her daughter, with whom she had fallen out, also laid claim) provided she repaid the Commonwealth Government the interest subsidy which she had received over the life of the loan. This is an example of what in equity (one branch of the law: too difficult to explain what it is here) is sometimes referred to as the requirement that a party come with “clean hands” to the court for assistance.

Another possibility remains in all cases that the judge may elect to refer the papers to the relevant authority to take such action as it sees fit.

A recent example of this is Jin v Yang [2008] NSWSC 754.

Mr Jin, 78, met Ms Yang, 50, in December 2004. Both were divorced. They met through dating advertisements placed in Chinese-language newspapers. In April 2005 they took a holiday together to Alice Springs and after this decided to live together. At that time Mr Jin was living with his daughter in Carlingford and Ms Yang was living at Bexley. Mr Jin had applied for a residence through the Department of Housing, but had not at that time been provided with subsidised housing. He received benefits and allowances through Centrelink of $518.77 per fortnight and had declared foreign income from a pension he received from a Chinese government instrumentality of $14.76 per fortnight.

In July 2005, Ms Yang bought a property in Ashfield. Mr Jin provided half of the purchase price. They moved in together. Subsequently, Mr Jin was allocated a Housing Department unit in Milsons Point which he proceeded to sub-let at a market rate.

The relationship went sour by mid-2006, apparently because Ms Yang learnt that Mr Jin, who seems to have been quite a live wire for his age, was still maintaining a previous relationship with an old flame. (Lesson here for lovers: be careful what you write in your diary.) Mr Jin moved out (possibly to Milsons Point, though this is unclear.) He spoke to Ms Yang’s son, Keliang, about getting his share of the house back. Keliang did not tell him that in fact the house had by now been transferred to him. In a complicated series of transactions, Keliang became owner of the Ashfield property. Normally, this would not be a problem, since Mr Jin would be able to trace the proceeds into whatever they had been converted to in Ms Yang’s hands. However, in this case, a complicated series of transactions meant that Ms Yang now said that she did not have any of the proceeds left. Her account of what she had done with them was singularly unconvincing, and the judge found that it was most likely that it had found its way back to her son, Keliang.

Normally, if you become the transferee of property under the Real Property Act (which is most property and certainly most urban property in Australia), you obtain what is known as an “indefeasible” title, absent fraud. That means you will not be affected by any dodgy dealings by your predecessor in title or undisclosed or even, in some cases, disclosed interests in the property. Justice White held that Keliang (who did not return from China to take part in the proceedings and who had participated in a series of transactions with the effect of apparently putting both the property and the proceeds of the “sale” beyond Mr Jin’s reach when he knew of Mr Jin’s claim) had committed the requisite fraud so that the Ashfield property would be subject to a constructive trust as to Mr Jin’s half interest.

This was a great victory for Mr Jin, particularly because, as Justice White said:

41 Mr Jin has been shown to have made false statements in his affidavits. For example, he denied placing an advertisement for the Milsons Point unit when it was clearly proved that he did so, as he was eventually forced to concede. He appears to have understated substantially his income from his Chinese pension to Centrelink. He deposed that he had ended his relationship with Ms Fu in late 2004 or early 2005, when his diary shows that he had not. Although there was some ambiguity in the words used in his diary as to whether he was describing a continuing sexual relationship with Ms Fu, the context shows that he was. At some time he made “corrections” to an entry in his diary to describe his activity with Ms Fu. His evidence as to his sources of income was confusing and I attribute that, at least in part, to his not being frank in his answers.
42 Ms Yang was also not a credible witness. Apart from the direct contradictions between her affidavit and her oral evidence in relation to her son witnessing her signature to the contract of 27 May (referred to earlier) and her untruthful statement as to what was written in Mandarin characters on the document prepared on 6 September 2005, she gave other evidence I refer to later in these reasons concerning the disposition of sale proceeds of the Ashfield unit and the Canberra property which stretch credulity.
43 Mr Wilson [Ms Yang’s barrister] submitted that if I found that neither party was credible then the plaintiff would fail because the plaintiff needed to show that the parties had a common intention that he acquire a beneficial interest in the Ashfield property. …. I do not accept his submission as to the consequence of finding that neither party is a credible witness. The question is, rather, whether the objective circumstances indicate that the payments were a gift to Ms Yang, or a loan, or were made with a view to both parties sharing the ownership of the property.

But there was a sting in the tail. His Honour said:

57 No defence of unclean hands was pleaded to Mr Jin’s claim to enforce a constructive trust. Nor was it submitted that Mr Jin should be refused relief on the ground of unclean hands. It was not suggested that the transaction was rendered illegal by any statute. Mr Jin asserted that the Department of Housing was aware that he was not living in the Milsons Point property and had let it to other tenants. He said that Centrelink had been made aware of Ms Yang’s claims and had investigated the matter and raised no issues about it.
58 I do not consider that his right to equitable relief should be made conditional on his taking any particular step in relation to the Department of Housing or Centrelink such as was ordered in Nelson v Nelson (1995) 184 CLR 538. The contrary was not contended. Nonetheless, when my published reasons are available I will direct that a copy be provided to the Department of Housing and to Centrelink.

Our great Mikado

August 19, 2008

A more careful observer than I has pointed out to me that a number of series in Opera Australia’s 2009 Sydney Season  which in 2008 were 5-opera series are now to be 6-opera series.

If Opera Australia’s promises to subscribers concerning their rights of renewal are to mean anything, it is difficult to see how the company can unilaterally alter the number of operas in a season.  I wonder if anybody complains about this?

The same observer has pointed out that every set series for 2009 includes The Mikado.