Archive for September, 2008

Marijuana is worse than speed

September 29, 2008

That appears to be the conclusion from a set of figures reported in today’s SMH:

Of patients who mentioned cannabis use to their GP, 48 per cent had a psychological problem, including 19 per cent with depression and nine per cent with psychosis. Six per cent had anxiety.

Only 31 per cent of stimulant users reported similar problems, with significantly lower rates of all conditions, according to the latest bulletin released by the National Cannabis Prevention and Information Centre in Sydney.

Director, professor Jan Copeland, said the results confirm the dangers of the drug, especially for the 300,000 Australians who smoke it daily.

“It was unexpected, given what we hear about amphetamine-related psychotic symptoms, but it goes to show what a terrible impact cannabis is having on users,” Prof Copeland said.

“The delusions, hallucinations and paranoia can be very distressing and people are feeling it.”

To start off with, what this really tells you is that people who feel compelled to tell their doctor about their marijuana use experience a different set of problems from people who feel compelled to tell their doctor about their amphetamine use. I even wonder whether the anxiety figures are so much larger than for the population at large, though obviously if you go to the doctor with a physical symptom you won’t necessarily get around to reporting or the doctor to diagnosing the anxiety.

The story continues:

The results, in data collected from 1,000 randomly-selected GPs, also revealed that mentioning cannabis use to a doctor was very rare, with the drug named in just 19,000 consultations nationwide each year.

That’s not 19,000 consultations which the 1,000 doctors told the survey about; that’s 19,000 when the numbers derived from the 1,000 doctors are multiplied back up to match the population of doctors and patients as a whole.

The story continues:

Users were more likely to be male, young, unemployed or on a low income and indigenous.

It’s unclear whether this means users reporting the matter to their doctor or users generally. In any event, there is the classic chicken and egg problem in interpreting these sorts of correlations. And then, the story seems to turn a corner:

“The low numbers are a major concern given the sheer number of users and the effects we know that use is having,” Prof Copeland said.

She said too many users still believed cannabis had few health consequences or were nervous mentioning a drug habit to a doctor.

Professor Copeland would like more people to report their cannabis use to their doctor. If they did, this would give her a better statistical base, though she is obviously satisfied with the conclusions already. Prohibition and criminalisation of use is precisely what discourages anyone but the most pathetic and nothing-to-lose from telling their doctor about it.

But Australian Medical Association chair of general practice Dr Rod Pearce said stressed the importance of consulting a doctor.

“Illegality is a non-issue for us and it absolutely has to be given the increasing body of research linking cannabis smoking with psychiatric illness,” Dr Pearce said.

“I’m not being wowserish either. This is a serious problem.”

It may not be a problem for a doctor, but it could be a problem for anyone who tells the doctor if the records of that consultation are subsequently subpoenaed. These days that is very easy to do since unless you don’t want any prescription written/made out and are prepared to pay the full price yourself, any consultation will leave some kind of trace via your Medicare number.

The story also reports that “About 1.5 million Australians have used cannabis in the past year, with 750,000 smoking it weekly.” That begins to make the (grossed-up-to-) 19,000 reports to a doctor look even tinier.

Is the present prohibition and criminalisation of use really the right way to approach this?

Sydney Symphony Orchestra 2009

September 27, 2008

Next year’s season for the SSO has been announced for a while now.

This is the first season of Ashkenazy’s tenure as principal conductor.  That was announced April last year, though that is more a matter of publicity than fact, as Ashkenazy gives away by mentioning in his introduction to the brochure that the season has been “nearly two years in the making.” 

Probably the features of the season (allowing for my own prejudices) are:

  1. The Prokofiev series, conducted by VA, at the end of the year;
  2. Donald Runnicles conducting with Victoria Mullova, violinist;
  3. Stephen Hough, playing the rarely-heard Tchaikovsky 2nd concerto;
  4. Shostakovich 10th Symphony (VA)
  5. the visit of the Leipzig Thomannerchor (unheralded and tucked away in the 6.30 series and a weekday matinee);
  6. Hickox conducting Vaughan Williams;
  7. Simone Young returning with her chum Cedric Tiberghien, who plays Bartok 2 (making up for this year’s cancellation) – also tucked away in the 6.30 series (the big piece is Ein Heldenleben);
  8. Imogen Cooper and Leslie Howard in the Piano recital series;
  9. Belshazzar’s Feast and The Creation (Cantillation rather than the Philharmonia gets this gig).

That’s not an exhaustive list – you can’t include everything in a list of “features.”

But perhaps the most striking feature is a negative rather than a positive one: there is absolutely no Mahler.  How times have changed!

There is an attempt to revive the (presumably flagging) fortunes of the three Angel Place series – “Mozart in the City”, “Discovery” and “International Piano” by offering subscribers 20% off for their first year of a new subscription to any of these.

I have been to the “Discovery” series once and wild horses wouldn’t drag me back. You have to like Richard Gill to like the series because so much of the presentation is always about Richard. And he conducts symmetrically with both hands at once. Gill has his following but obviously I am not part of it.

I am tempted to the “Mozart in the City” series though I chafe at the 7pm start and the short program. Apparently this is attractive to others, and it seems to have been quite well supported with people for whom this apparently is not a problem. The programming is inventive, though next year’s has taken a more cautious approach than in the last two years.

I already go to the piano series. Its subscriber base has clearly dwindled over the years, and I blame the orchestra management for this, over and above the effects of changing public taste. They have taken their public for granted with the calibre of the artists on offer and then toyed with them by, for example, shifting Thibaudet’s recital to the Concert Hall a few years ago before, inevitably, losing another chunk when they shifted the entire series from Tuesday to Monday night.

Actually, if the orchestra wants to tempt people to multiple subscriptions, I don’t see why it shouldn’t offer more permanent cumulative discounts than these introductory offers. That’s self-serving of me, I know, but the principle between series is not really so different from the principle within a series. Of course it would be open to abuse if existing subscribers used their subscriptions to buy tickets for friends, but that in itself is not so undesirable, given that the big problem is to make a ticket sale at all, and getting a new bum on a seat would be a bonus – as to which see also Yvonne Frindle’s musings here.

Tasmanian Symphony Orchestra coming to Sydney

September 27, 2008

This coming week the TSO is coming to Sydney.

I am going to all three concerts, which will be at Angel Place on 2-4 October.

The programs are:

Thursday:

MOZART Symphony No.29, K201
MENDELSSOHN PianoConcerto No.1
MOZART Symphony No.39, K543

Friday:

MOZART Symphony No.31, K297, Paris
MENDELSSOHN Piano Concerto No.2
MOZART Symphony No.40, K550

Saturday:

MOZART Symphony No.35, K385, Haffner
MENDELSSOHN Violin Concerto
MOZART Symphony No.41, K551, Jupiter

As I have mentioned before, I would have preferred a little less Mozart and something else more interesting, but doubtless they are hoping to widen their appeal this way. For my money, they have more chance of attracting the cognoscenti than the general public in any event, and lower common denominator (no disrespect intended to Mozart, but there are other opportunities to hear his work) is not really the way to go.

The soloists are Kolja Blacher, violin, and Kirill Gerstein, piano, who is also playing a recital there on Oct 13 for the SSO.

I hope that the TSO manages to do a bit better in drumming up an audience than it did last year or the year before. The regional monoculture in Australian orchestral music is really something which needs to be overcome. Maybe it will help that this time the SSO is away in Italy. I have had to change my ticket to Billy Budd to make the Saturday concert.

I have heard on the grape-vine that the honeymoon period between the orchestra and their chief conductor, Lang-Lessing, has cooled somewhat. I hope that won’t show in the playing.

You can always blame someone else

September 26, 2008

That’s one of the great things about life.

From this story about “mortgage stress” which appears to be the SMH topic du jour:

The biggest myth about mortgage arrears and home repossessions, according to Mr Young [a financial counsellor for Lifeline Parramatta], is that the problem is confined to single-income, struggling families.

“It’s not just the down and outers, a lot of the people I’m talking to are your upwardly mobiles where the thing to do is buy your investment property,” he said.

Successive interest rate hikes and spiralling living costs have combined with falling house prices across much of Sydney’s west, he said.

Abbotsbury father-of-two Gil is a victim of this cycle. [emphasis added: loose writing alert – what cycle?]

The 55-year-old steel industry manager bought a two-bedroom townhouse at Rooty Hill in 2003 as an investment, in the hope of having some “money on the side” during retirement.

He fixed the majority of the loan at 7.19 per cent but the rest is variable and currently sitting just above 9 per cent.

Gil, who did not want his surname published, says the real estate agent’s “flashy and glittering sales pitch” about the potential capital growth and using equity in his first home, plus a loan to minimise his tax burden, were false promises. [emphasis added: false or just turned out not to be the case?]

His initial investment of $305,000 would now fetch just $265,000.

“When the property market was going up and up I thought I can’t lose,” Gil said.

“It was a bit late for me to do it, then I should have realised (the market) was too high. My only hope to keep this property is if the banks start lowering their rates in conjunction with the RBA.”

Mmmmm. Well, he bought it, and in the process he presumably outbid somebody else who maybe only needed a home, not an investment (albeit that a home is also an investment, but of a different kind). Now somebody else can have it for less than he paid for it. That’s what investments are like.

He says the big banks’ reluctance to pass on rate cuts was insulting.

“It’s the banks thinking they won’t have to put our interest rates down that really pissed me off,” he said.

“Why don’t they look within their smug little world and see what they can do to fix the problem because that’s where it stemmed from and it was their decision-making that got us all in this predicament.” [emphasis added again]

Whose decision-making?

It all depends on what you mean by “us” and “this predicament.” If people like him hadn’t all been paying too much for homes they didn’t need to live in to be financed on the negative gearing and ultimately rewarded on the concessionally taxed capital gain, a few more people who actually needed a home to live in might have been able to afford one.

Personally, I’m rather keen on falling house prices – if only there were more a bit closer into town than Rooty Hill!

Of course, I have my own axe to grind. Meanwhile, discussions with my landlord about the rent increase are continuing, surprisingly cordially so far.

Olympics – a different view from Beijing or just outside it

September 24, 2008

I don’t usually do “you must read this” posts, but this article from the New Yorker by Peter Hessler (courtesy ESWN) really impressed me.

Not only is it acute, but (as you would expect from both the New Yorker and Hessler) it is very well written.

What I particularly like is the narrative/dramatic [which do I mean? what the hell] structure of the article.

Hessler starts near the Great Wall somewhere not far out of Beijing with the rather homespun security precautions which have been made near the house which he routinely rents there. He then flashes back to his flight into China on the same flight as the US cycling team (the ones who caused the trouble by wearing their masks) before returning to the village view of a bicycle race – a bit like the view of the sermon on the mount from the back of the crowd in Life of Brian. He persuades his local friends to make the big trip into town to the games with him. Cue Act II.

There, after another brief flashback to his trip to Beijing in 2001 at the time that Beijing was bidding for the games, Hessler focuses on the Chinese spectators. Hessler zooms in on Chang Aimei, a peasant whose son, Chang Yongxiang, is representing China in the Greco-Roman wrestling. This is only the second time Chang Aimei has seen his son wrestle – the Chinese system takes its recruits away from their families at an early age. He watches from right up the back so as not to put his son off. He passes the exciting news blow by blow (OK, throw by throw) to family and friends via his mobile phone. These are the final paragraphs:

It was early in the day, and the athletes were working their way through the rounds. At the Olympics, Chinese men had never done better than bronze in wrestling; nobody had ever made the finals. In Chang Yongxiang’s second match of the morning, he defeated a Peruvian to qualify for the semis. When it came time for his next competition, I made my way to the far corner of the arena. His father was still there, sitting alone.

Chang Yongxiang was matched against a Belarusan named Aleh Mikhalovich. The crowd had grown louder all morning, and now they chanted, “China, go! China, go!” The Belarusan threw Chang out of the ring almost immediately, scoring four points, and won the first period. But then Chang seemed to gather himself. He was stocky, with thick thighs and a square jaw. He had bristly black hair and after every clinch he shook his head like a bull. He evened the match with the second period. Now the spectators were on their feet; the school group from Changping screamed and banged their thunder sticks.

Behind them, Chang Aimei remained seated. His legs were crossed, as if he were relaxing after a day’s labor, and his belongings were neatly stacked on his lap: towel, flags, pamphlets. He had not moved a muscle since the match began. His eyes were fixed on the distant mat, and he said nothing. But I could hear him breathing—steady, steady, steady. In the third period, the Belarusan took the initial point. Deeper now, deeper now. The match continued with Chang Yongxiang in the lower position; he escaped and scored a point. Inhale—almost a gasp. Another point, and then it was over, and the referee was raising Chang Yongxiang’s arm.

Eventually, Chang lost to a Georgian, taking the silver medal. But on the day of the semifinal he left the ring triumphant, already the most successful Chinese Greco-Roman wrestler in history. At the top of the arena, safely out of sight, Chang Aimei still looked relaxed. He was silent until he took out the cell phone. “Wei!” he shouted. “He just won again!”

Brilliant! But there’s a lot more to the piece than that and I’d urge you to take a look for yourself.

Contempt – a wretched case

September 23, 2008

Jason Hall pleaded guilty to a charge of contempt of court. He came before Justice Harrison for sentencing.

The occasion of the contempt was an application for bail by Hall at Campbelltown Local Court on 22 March 2007 after he had been charged with assaulting his female domestic partner. Bail was opposed by the prosecutor and refused by Magistrate Hammam. Hall (aged 33) then said to her:

“How about I just plead guilty to the whole fucking lot and just send me to gaol?

Yeah, I am. I’m guilty on the whole lot. Send me to fucking gaol you piece of shit. It’s fucking wrong.

It’s wrong, look, you’re a female . . .

Of course you’re going to charge me.

Of course you’re going to go against me because you’re female.

Fuck brief nothing. Just – I’m pleading guilty on the lot. Don’t worry about it. Change it right now, pleading guilty on the fucking lot.

When I come back here in a week I don’t want to see you, you putrid fuck.

I would too if I was you, you fucking cunt, fucking dog, fucking moll.”

Following a short adjournment her Honour made an interim apprehended violence order against Hall in respect of the alleged victim.

Hall was subsequently sentenced to 8 months’ imprisonment for (it seems) one of the assaults, with a 4-month non-parole period which he served. The contempt charge was brought by summons in November 2007.

Hall gave evidence which put his outburst from the dock in a little more context. To quote Harrison J’s judgment:

6 The evidence of the defendant, given by affidavit made 18 July 2008, was that on the morning of 21 March 2007 he spoke to police and agreed to attend Macquarie Fields Police Station later that day. He attended the police station at about 10.00am, accompanied by his sister. He had ingested a large amount of speed earlier in the day. The officers dealing with his matter were not there when he arrived and so he waited outside the police station for about one hour until they returned. He was arrested outside the police station at about 11.00am.
7 The defendant said that the police told him that if he handed himself in that he would be granted bail. They had asked his sister to attend with him to facilitate that. The police subsequently opposed bail. The defendant was then taken from Macquarie Fields Police Station to Campbelltown Court cells. He was not brought before a court that day. Whilst in custody in the cells the defendant told the gaol staff that he had wanted to jump in front of a bus recently and that he had stabbed himself in the stomach with a pair of scissors. At about 4.00pm he was taken to Campbelltown Hospital for a psychiatric assessment. He was later returned to the Campbelltown Police Station. He said, “Things seemed to be going really quickly and I do not remember much from that night. I was still feeling the effects of the speed I had taken earlier”.
8 The defendant was given Avanza at the Campbelltown Police Station. That is an anti-depressant. That made the defendant “really hyperactive” for about 20 minutes and then he “slowed down heaps”. He said he remembers lying watching television in the cells but little else. His next memory is of being in the cell when the door opened. He had what he described as “the dry horrors”. His mouth was very dry, he was trembling and shaking and was coming down from the effects of speed and Avanza. He does not remember eating any breakfast.
9 The police took him to court. He said he remembers being refused bail “by a lady magistrate”. That made the defendant feel “really angry” because the police at Macquarie Fields Police Station had told that he would get bail if he handed himself in. He said that he remembers saying words to the Magistrate but has no recollection of what he said. When he received the summons in these proceedings his partner read to him what it contained, including the transcript of what he had said in court. He said he was shocked and felt “really bad about what [he] had said”. He has never said anything like this in court before.

One moral of this is that you should almost never believe anything of this sort that you are told by a police officer. Of course, the police officer could have simply said that Hall was more likely to get bail if he turned himself in; even then the police officer might not have known the state Hall was in or would be in when he turned up at the police station.

Hall also wrote an apology to the magistrate as follows:

“To the magistrait

I realy don’t know whot to say to you. I don’t remba much at all about the hole thing. All I can remba is going to hand my self in that day at Macfelds Police. Thay sed to me that I would get bail. So that’s wot I did handed myself in so I could sort this mes out. Eneyway from that morning I was verey heavley on speed I was that high I did not no who I was that day and night frome court cells thay took me to Campbeltown Hospital. I don’t remba why. I whent thair for from hospital thay took me to Campbeltown cells it was to late to go into court when I got back to cells thay gave me my Azansa plus some other pill. Arfter that I don’t have much memrey of it but when my girl frend red it to me I was verey discusted in whot Ive sed to you. Ive never told a juge of ever befor and Im verey sorry for whot I sed to you that day I realy am. I have a 2 year old girl and a 8 month old boy and one due in October 18 that will be three kids. My girl frend would not be able to 2 cope with 3 kids if Im put back into goal. My father has only got 1 to four months to live as well Ive only just found this out about one munth ago. I do not do drugs no more. I have bean of drugs for about 16 months. I am a lot betta since Ive bean of them. I hope you can understand my righting and speling as Ive had little schooling. I all so have hep C and liver problems Ive bean told that I have to go on Intafurone it is the same thing as keymo therpey. If Im jailed over this matta I carnt go on the program. So pleas take my apolergey and sorry that is all I can remba of it. I carnt say its not my voice becouse it is but I did not mean to upset you in eney way at all or leav the court room. I was only gelty on one charge. That’s why I fort the other charge and beat it. I was more upset about whot Ive sed to you and Im verey sorry and I hope you take my apolegee. As I don’t whont to go back to jail. As Ive bean out four 18 months and haven’t bean in trouble for eneything so pleas take my apolergey it is from my hart. Im verey sorry.”

As Justice Harrison recounted, Hall told Dr Nielssen, a psychiatrist who prepared a report for the proceedings, that he basically lost his temper when he handed himself in to police. Hall said that he and his partner were still together and that she was pregnant with their third child. Hall told the doctor that he had stopped using drugs apart from cannabis.

Hall reported that he began using cannabis and alcohol at the age of nine and was using heroin regularly by the age of eleven. He said that from mid-adolescence his drug of choice changed from heroin to amphetamines and said that he used amphetamines regularly until giving up last year.

Hall was the oldest of four children and has no contact with the three younger siblings, although he understood that one of his brothers also had an amphetamine abuse disorder. He said that he had a “very bad” early childhood and that his parents separated when his father was sent to gaol when he was six years old. Soon after that that he became a ward of the State. He had been placed in several boys’ homes.

Hall told Dr Nielssen that he had never worked consistently and that his only long-term job was eight months in a metal workshop in early adult life. He now receives a Disability Support Pension although he was not sure why he was granted it. He had several relationships of three years’ duration and had a total of eight children aged between thirteen and one year of age. He and his current partner were expecting another child. He is only in contact with the two children to his current partner and did not know how the other six children were progressing.

And the pathetic detail, interests (they always ask people this for psych reports):

He said that he had previously played softball for fun and that his main hobby was fishing with a friend who accompanied him to the interview. They met whilst the defendant was living in a caravan park on the Central Coast.

Dr Nielssen:

“diagnosed substance dependence and abuse based upon the defendant’s account of long-standing abuse of amphetamines and complications of drug use, including transient psychosis, depression, problems in his relationship and criminal charges. Dr Nielssen opined that a combination of the effect of the drugs he took and his anger towards his partner and the police, as well as the circumstances of the hearing, were probably factors that contributed to his behaviour in court before the Magistrate. The defendant reported that he had given up drinking and abusing amphetamines and had resumed the relationship with the partner who was the subject of the assault. Dr Nielssen recommended that the defendant seek further treatment for his drug abuse disorder.”

Well, that’s not very hard advice to give, though probably a lot harder to follow. I reckon Hall would be doing well just to stay off the drugs he says he has given up.

Hall was probably lucky that the matter came before Justice Harrison. His Honour said that frustration with the outcome of the bail application was no excuse, but he then went on to say that Hall’s outburst (which he said “was not the product of any discernible reasoning process”) was associated with drug withdrawal and was in itself a kind of self-harming behaviour. In the particular circumstances, he found that the dignity and reputation of the court remained intact. His Honour concluded:

The defendant has been subjected to the rigours and uncertainties that these proceedings by themselves have no doubt caused: see, by way of general analogy, R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451. I note the apology of the defendant and the evidence that he gave. Both indicate contrition and remorse. I accept that the imposition of any further punishment upon him will in his particular circumstances be harsh. There is also the prospect that a reasonable and reasoned result from a court system with which he has had such unfortunate experiences may itself have an educative and rehabilitative effect upon him.

As to the last sentence, well, we shall see. Nothing much that any other judge or magistrate has said to Hall seems to have worked very well so far.

Hall was sentenced until the rising of the court – that is, for as long as the judge then took to adjourn.

Other more blimpish judges may not have taken such a mild approach.

A persistent litigant

September 20, 2008

I see from a recent decision of the Full Federal Court – Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FCAFC 159 – that a Mr Coshott has failed in his appeal against a refusal of a Federal Magistrate to set aside a bankruptcy notice (see note below as to what this means) issued by Shipton Lodge Cobbitty against him.

I recognized the names from Mr Coshott’s unsuccessful appeals against decisions against him by a Local Court Magistrate in relation to agistment fees for horses payable by him to Shipton and associated matters. I say “appeals” because not only did he appeal a number of decisions, but he also appealed first to the Supreme Court and then, when unsuccessful, to the Court of Appeal.

Obviously, this is a man who does not give up lightly.

Admirable, you might say. Well, yes, up to a point.

When I searched for Mr Coshott (not, after all a particularly common name) on Austlii, I soon found 36 matters in which he is a party, mostly as appellant or plaintiff or applicant. [Admittedly, Mr Coshott was a party in his role as an executor of a deceased estate in one of these proceedings. It’s a difficult case to follow: his purpose appears to have been to maximise his power of choosing which charities should receive the benefit of a sizeable charitable bequest.] That only covers the relatively recent years which are covered by the internet era. I have found another 8 going back to 1984 on a commercial legal data base.

Mr Coshott commenced practice as a solicitor in 1976. He practised on his own account in Double Bay. In 1991 (not long after the Law Society commenced a formal investigation of his practice) he closed his own practice and did not renew his practising certificate. Most of his files were transferred to what the Court of Appeal described as “an associated firm,” Gunn Hamilton and Blay.

In March 1995, the Legal Services Tribunal ordered that Mr Coshott’s name be removed from the roll of solicitors – that is, colloquially, that he be struck off. Mr Coshott appealed against this order and it was stayed. In the meantime, in June 1997, the Tribunal made a further order that Coshott be struck off. Coshott appealed against this decision also. Both appeals were heard together in October 1997. In December 1997, the first appeal was upheld in part, but the order to strike Mr Coshott off was confirmed. The second appeal was dismissed. Coshott was no longer a solicitor.

This hasn’t kept Coshott away from the courts. If anything, his enthusiasm seems to have increased. But in Shipton Lodge he appears to have met his equal in litigious persistence and determination.

The first claim brought against him (and his wife) by Shipton Lodge was for agistment fees in relation to two horses. Commenced in late 2000, it was eventually fought out over 6 days in April 2003. Some of the procedural history can be traced in the first decision in relation to his appeal against this, which was by Justice Simpson in 2004.

Shipton obtained a judgment of $77,729.00 (including $45K indemnity costs) on its first claim.

Before that case could be heard, one of the horses died. Coshott and his wife (I will just say Coshott as Mrs Coshott appears to be guided by her husband in these matters, though some of the matters below such as steps in enforcement only relate to Mr Coshott) brought a cross claim against Shipton alleging negligence in its care of the horse. This claim was determined separately. It was dismissed.

It is a measure of Shipton’s determination that even before the first claim was heard, Shipton became substituted creditor in proceedings to send Mr Coshott bankrupt. That is, when another creditor dropped out, Shipton took its place in propounding the applicaton. These proceedings ultimately failed when (in one of his biggest wins ) Coshott successfully appealed the judgment by reason of which he was insolvent. This was a typical Coshott victory. It rested on a technicality concerning the exercise of an option with the result that the other party had failed to exercise the option so that Coshott got to keep $1.25 million whilst the other party was left with shares which were worth nothing. But that’s the law: options are very strict and technical things.

Shipton got out of that fairly lightly: Mr Coshott had to pay Shipton’s costs. Undeterred, Shipton then took steps under the Unclaimed Goods Act to sell the remaining horse and recover charges for its care. In the face of maximum evasion/obstruction by Coshott (he couldn’t be found, and refused to instruct his solicitor to accept service) they finally got an order authorising them to sell the horse – it sold at auction for $319.00 (nett $253.26) – and a judgment for $6,838.74 (that is, the costs of caring for the animal up to sale and legal costs of $3,000 less the nett proceeds from the auction).

Coshott appealed the second and third Local Court decisions. All three matters were heard together by Justice Johnson of the NSW Supreme Court in August 2005. He handed down his decision in June 2006. (Why so long? you may well wonder.) Coshott lost all three appeals.

Coshott appealed all three matters to the Court of Appeal. Those appeals were heard in November 2006 and dismissed on the day.

Shipton issued a bankruptcy notice on the first Local Court judgment. Coshott did not pay the debt. Shipton presented a creditor’s petition. Coshott reached an agreement with them where he paid the amount of the judgment and a further $1,000 and the creditor’s petition was dismissed.

Shipton then issued a bankruptcy notice on the second local court judgment in its favour (that is, Coshott’s failed cross-claim, which resulted in an order in April 2004 for $35,862.92 in Shipton’s favour, which must basically have been Shipton’s costs). Coshott applied for it to be set aside, including on the ground that the agreement which he had reached in relation to the creditor’s petition operated to discharge both debts, even though he had actually paid only one. He also said that because the judgment was in a mater which should have been commenced in the Small Claims Division of the Local Court there was no power to order costs against him or that even though the magistrate had fixed the costs by order he was still entitled to have the costs assessed.

Federal Magistrate Diver dismissed this application in February 2008. The Full Court dismissed Coshott’s appeal in August 2008 – which brings us back to where we started. Either Coshott is now offering payment to Shipton (not necessarily of all the debt) or else they are now pressing ahead with a creditor’s petition.

There may well be other creditors who would like to see Coshott bankrupt, because Coshott has lost quite a few other matters in recent years. In 2007 he failed in a claim against his former solicitor in relation to what he alleged to be their negligence, in part because of what is known as “advocate’s immunity” but also in one instance because the judge held that Coshott’s claim that the solicitor had failed to advise him failed because he would not have followed the advice anyway. What Coshott complained of not being advised of was in essence what the solicitor had initially advised he should do. It was Coshott who had insisted in pressing all sorts of other claims. The case gives a handy catalogue of some of the matters Coshott has been involved in.

The above account only scratches the surface. Coshott has sued his neighbour, a joiner, someone who put windows into his house, Woollahra Council, and as of 2006 and 2007 had started taking steps to recover fees due to him for work he had done prior to closing his practice in 1991. He has refused to pay strata levies and fought a rearguard action against their recovery in court. He has been in litigation against Citibank and the Commonwealth Bank. If you can bear to do your own rummaging around you will see more of his work.

As a legal practitioner, embarking on legal proceedings on my own account is the very last thing I would ever like to do, but there does seem to be a species of person, and in particular former practitioners, who relish in it and who can, by means of their skills (exercised without the constraints of any professional obligations as to reasonable prospects) cause a great deal of trouble to others.

Explanatory footnote:

A bankruptcy notice is a preliminary to sending someone bankrupt. If you have a judgment against you, the judgment creditor can issue a bankruptcy notice requiring you to pay that debt within a specified time, unless you get it set aside. If you don’t, you have committed an act of bankruptcy. This will then enable an application (a creditor’s petition) to send you bankrupt. Once you are bankrupt, a trustee is appointed to sell all or virtually all of your property and distributes the proceeds pro rata (after paying the trustee’s expenses) to your creditors. You have to contribute any income you earn during your bankruptcy over and above a quite modest amount until (normally) another 3 years pass or all the debts are paid (if that happens sooner). You are no longer liable for the debts which could have been paid by the trustee from such funds.

Afterword

Since I wrote this post, judgment has been published on the net (it was actually given on 17 September) in a further appeal by Mr Coshott – in this case against a costs order in his saga involving Woollahra Council.  In this case it is complicated and I can’t begin to summarize it, but the short form summary is that, in my view at least, a higher court has yet again been fairer to Mr Coshott than he really deserves.

Sixteen-month review

September 17, 2008

This blog is now four months into its second year.

I have included the fourteen-month review figures in parentheses for comparison and the one-year figures in brackets.

Total Views 32,563 (24,027) [18,542]

Best Day Ever: 379 Friday 25 July 2008 (200 — Tuesday, June 10, 2008) [174 — Sunday, March 9, 2008 ]

Top Posts

Pedophile “monster” knee-jerk reaction, 3,238 views (2,287) [1,220]

The following two posts are jostling for second place

Never fall in love with a prostitute,  1,092 views (887) [712]

Pussy porn, 1,067 views (901) [813]

Most of the increase in traffic coincides with the Sydney International Piano Competition and my series of posts on that. The end of the semifinals accounts for the best day. Things have steadied quite a bit since then.

Bathroom music

September 14, 2008

On Saturday night to the UNSW to hear the Australia Ensemble.

The program was:

+ Eugene GOOSSENS (1893-1962): Five Impressions of a Holiday Opus 7 for flute, cello and piano (1914)

+ Somei SATOH (b 1947): Vortex for flute, clarinet, harp, piano and percussion

+ Arthur BLISS (1891-1975): Clarinet Quintet (slow movement commemorating the World War I battle of the Somme) (1931)

Johannes BRAHMS (1833-1897): Sextet for strings No 1 in B flat, Opus 18 (1860)

The first three works made up the first half and were together billed as “Places and memories, Part 1.” Part 2 is to follow in October. I respect Roger Covell’s efforts in devising programs, but in this case he was driven to two paragraphs of convoluted cartwheels in the program note in an effort to bring the second piece, “Vortex,” within the scope of the concept. Well, a vortex must be somewhere, mustn’t it?

That didn’t matter at all, because Vortex (quite unlike what you might expect if you were thinking of Wyndham Lewis) was the stand-out work. It was very still and quiet, and involved such a luscious array of sounds – especially the harp, percussion (marimba and vibraphone with soft mallets) and clarinet, and with the piano always sustained. There was something (which I would now have to look up) in the program notes about altered tuning for the harp which was probably intended to sweeten the tritone and take the sting out of it – quite a lot of the piece seemed like a great big prolonged B7 chord. With all the echoing instruments, it was rather like bathroom music, and like singing in the bathroom, quite enchanting.

I am tempted to seek the Satoh out for some further listening, but I doubt if it will have the same magic just through speakers: the moment was the thing, albeit that a recording could give a memento.

The Eugene Goossens, written when he was 21, was a delightful and more-than-competent set of programatic vignettes from a francophone countryside: at the heart of it was the village church – a kind of less spooky and more every-Sunday engulfed cathedral.

The Arthur Bliss paled in comparison to these works, even though I tried to impress my listening to the third movement with respect for memories of the Somme and the war dead and suffering. If it weren’t for the instruction by Roger Covell in the program notes, I can’t say I would have guessed it.

In the second half, the Brahms sextet was enjoyable although it took a while to gell.

Brahms basically founded this form or style of ensemble, but it hasn’t really caught on.

One reason for this is that usually a string quartet needs to find two extra players, but it is hard for them to fit in. Emma-Jane Murphy, (sometime principal cellist with the ACO; sister of Aubrey Murphy, concertmaster of the AOBA ) emoted away like billy-oh in rather a Diana-Doherty-esque style with her fellow players, especially Yvette Goodchild, her fellow ring-in on viola II, and fellow cellist, Julian Smiles, but she didn’t seem to get much of a rise out of the others. There were moments when I wondered if less display of fellow feeling and more accurate participation (especially in the first movement when she seemed to lag on some accelerandi) might have been of less conspicuous assistance. Dimity Hall (Julian’s wife) looked rather unamused on Violin II, though she may have been soldiering on through illness [she took an inter-movement sip from a glass of water and sniffled a bit walking on and off for the bows], as were a few of the audience, rather less discreetly than that.

Another reason is that probably the ensemble is a bit middle and bottom heavy for the kind of projection that the more classical balance of a quartet allows and to which we are all accustomed. It’s a bit like Schumann orchestration, which gets rather a lot of (in my opinion undeserved) bad press.

There was a delightful moment later where both Irina Morozova and Dene Olding, playing in turn a little figure of alternating adjacent notes, each moved their heads gently from side to side with the music in precisely the same way. This isn’t showing off – it was obviously totally unconscious, but it spoke a great deal about the special intimacy of chamber music which I treasure. It helps to be close (I’m only 4 rows back) for this.

P, my usual companion at these concerts stayed at home laid low with the flu after a day of examining. She offered me her ticket, but I have pretty much given up trying to rope in others for concerts at short notice. My only acquaintance who might have gone in fact attends these concerts regularly already. D wouldn’t come: “I’m not crazy about that kind of music like you are,” he said. So I sat in P’s seat instead of mine (one seat to the left of mine and therefore just a bit more central) for a change. Variety, after all, is the spice of life.

Love and marriage

September 12, 2008

and de facto relationships

The important distinction between de facto relationships and de jure (ie legal) marriages is that a de facto relationship has to exist in fact, whereas a de jure marriage persists until death or divorce bring it to an end.

Justice Windeyer, who has long sat in the Equity division of the NSW Supreme Court, has heard more than his fair share of cases about the existence of de facto relationships.

Here are a number of passing comments in a recent case where he had to decide whether a woman (the defendant) was the de facto partner of a man who had died without making a will. The man’s children denied the relationship, basically on the grounds that there had once been a relationship but it had come to an end – as evidenced by living arrangements, displays of affection or rather the lack of them, complaints by the deceased about the defendant, and his involvement with “other women.” At immediate stake was who should administer the estate, but presumably other entitlements under intestacy also depended on this.

12 As often happens in these cases a great deal of evidence and almost interminable cross-examination was directed to the sleeping routine, who used what bathroom, and where the particular clothes were kept for the period from 1998 to 2006.

And in relation to the daughter’s evidence about the state of the flat where the deceased lived with the defendant at the time of his death:

16 ….She gave the expected type of evidence about the bedrooms at Zetland. At least here there was only one bathroom so that it was not suggested it was not used by both the deceased and the defendant.
17 I should say now that I do not think the question of whether or not there is a de facto relationship can often be determined by the position of clothing or use of bathrooms. There are hundreds of married couples who keep clothing in different rooms; there are no doubt married couples who sleep in separate rooms, but have a committed relationship. There are many married couples who use different bathrooms and no doubt many more who wish that they could.

That last sentence qualifies as judicial humour, though query whether his Honour is being consistent here in applying generalisations about married couples to a case about a de facto relationship given his ultimate findings.

36 As in many of these matters the evidence adduced by either side, although it seems to some extent contradictory, is often generally truthful. It is just that people see things partly as they want to see them or as they think they should see them and partly in accordance with statements made to them by the persons involved in a relationship. It is usually not possible to reject the evidence of witnesses of one side and accept the evidence of witnesses of another in coming to a decision as to whether or not a de facto relationship has been established. It is also necessary to bear in mind it is incorrect to think that perfection and harmony is a necessary requirement in de facto relationships but not in married relationships…. Nevertheless for a de facto relationship to continue to exist it is necessary for there to be a sense of commitment on both sides.
37 While what I have said about witnesses having different views and accepting the truth of what they are trying to say, is I think correct, that does not always apply to the evidence of the parties to the relationship. While the defendant’s evidence was that she did not know the deceased had a continuing relationship with his then wife and I accept that evidence, I do not accept her evidence of her view of the relationship with Mrs O’Brien. I do not accept her evidence that the deceased did not spend nights away and I accept the evidence of Mrs O’Brien as to that. I do not accept her evidence that she thought that the deceased was just going off on Fridays to take the washing to the laundry. I accept the evidence of Mrs O’Brien that she did the deceased’s washing and ironing, and the clothes which he brought back could hardly have looked as though they were coming from a professional laundry. It is therefore obvious that the defendant must have known that the relationship was not as secure as perhaps she would have wished it to be or wished to think that it was. In fact in her affidavit of 1 November 2007, she admitted as much saying in paragraph 133:

133. Perhaps I realised, to some extent over the years, that Luis may not have always been honest with me about his relationships with other women. However, I loved him and I believed that he loved me and that such infidelities that occurred would, as I understand in fact occurred, pass. So far as I was concerned, I was in a committed and sharing long term life partnership but one in which my partner was incapable of constant sexual fidelity. I had to and did grow to accept that that was the way it was with Luis.

On the perennial problem, of which this case was a spectacular example, of statements by the deceased to either his children or to other women discounting the relationship:

42 In reaching a conclusion on this question the evidence of witnesses or statements made by the deceased must be treated with great care. Usually, as here, the statement is made to one person only, which makes it easy to give evidence which may not be true. For instance, evidence of statements of the deceased that his relationship (whatever it was) with the defendant was over could not be accepted as true if the evidence of the defendant is accepted that the deceased was regularly in bed with her engaging in sexual intercourse. Generally speaking I accept that part of her evidence.

A more contentious point:

43 The strongest evidence of there being a de facto relationship at the time of the move to Zetland is that the parties both moved there, although the relationship with Mrs O’Brien and Mrs Quijarro continued as before. But against that is the evidence, which I accept, that the deceased instructed his accountant that the rent at Zetland be debited in equal shares to his loan account and to the defendant’s loan account.

Here his Honour is responding to the requirement to consider, under the statute, matters such as the extent of any joint finances. I wonder whether that is appropriate these days. That is, joint finances, if present, can indicate a relationship, but their absence cannot indicate the absence of one. After all, why shouldn’t people have separate bank accounts as much as they have separate bathrooms?

46 It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later. Strange as it is I am of the opinion that whatever commitment there was to a joint life as a couple by the defendant, there was no such feeling or interest by the deceased at the time he died, who by then used the defendant as he wished and did as he wished.

Now that seems really unfair.

And while judges are people like Justice Windeyer (hint: he was colonel of the University of Sydney Regiment) are on the bench, as a practical matter it may well be the law. That is, if you think you are a de facto but your partner has deceived you or you have been prepared to overlook what you see as mere lapses or deviations by the other person, you may really be nothing. You need to be legally married to be able to do that. That seems a very strange result indeed, since it means that, contrary to all the stuff that conservative moralists say and indeed some empirical observations about how many people actually live, the requirements for fidelity in a de facto relationship are in fact higher than those which apply as a matter of fact in a great many de jure marriages (as a matter of law, infidelity is irrelevant to these).

There are some obvious repercussions to this, including in relation to the reform of the law for gay unions however described and arguments about that.

Afterword

The Court of Appeal has overturned Justice Windeyer’s decision. See also the SMH, Sex, flies and probate.