That Sydney-Melbourne thing

On Friday night to hear the Melbourne Symphony Orchestra, conducted by Andrew Davis, and with Angela Denoke as soloist.

Originally, and as late as when I booked in response to a $20-off offer, the soloist was to be Deborah Voigt.  Just after that, she cancelled.

There was to be a concert on Saturday as well.  This was cancelled before I booked.

I had held back, first because such diva programs tend to be rather silly, and secondly, in resistance to the price – gouging is the word which comes to mind, however loaded that term may be.  My guess is that I was not alone, especially on the second front. Prices were $169, $129, $89, $49.  The prices alone do not tell the story: also relevant is just how widely the criteria for the highest price category was determined and, conversely, how narrowly the cheaper categories.

It matters not who was doing the gouging – that is whether it was Voigt, the MSO or the SOH, which appears to have been the presenter of the Sydney concerts.  I do however suspect that the SOH itself was playing its part.  That’s because of the tell-tale sign: withholding cheaper tickets from sale.  No tickets at all had been sold for the galleries behind and the boxes at the side of the stage.  There were about half a dozen people sitting in the first box on each side, scarcely justifying the expense of the usher in each, but that must have been some anomaly because I was certainly not offered the chance to buy such a ticket, which in my opinion would have been, for the orchestra at least, preferable to the seat I was able to get (said to be the last one left in the stalls at the time) in row G, which was the fourth row, looking up the skirts of the cello section.

This tactic is, in my opinion, misguided because sales create their own momentum, and even if the cheap seats fill absorb some demand which would otherwise result in a higher price sale, people who are going (and the cheap-seaters will be the enthusiasts) can generate word of mouth publicity.  Secondly, because it probably causes a double bluff which can end in a lose-lose: if people inquire early and are told the rear and side seats are not on sale, then just maybe they will wait and see until they do come on sale.  Thirdly it is wrong (in a way which is still relevant to the SOH as a recipient of substantial public funds) because there are people who will just never be able to afford the higher priced tickets but who don’t want to sit in the last couple of rows of the circle, and to leave the choir and organ galleries and side boxes empty is a waste of the chance to cater to them.

As ever with entrepeneurs cold-selling to the public (as opposed to those with a subscriber base to draw on) it seemed the SOH overestimated the drawing-power of their artist. Voigt may be well-known to the Met-Opera-in-the-cinema crowd, but they see her there for $20-something. It all takes me back to Clifford Hocking’s scandalously half-empty Concert Hall for Peter Schreier in 1990.  (There is a characteristically perceptive article by Katrina Strickland in the AFR which touches on this issue.)

Once Ms Voigt cancelled, refunds were offered.  Oddly, I got a second email from the SOH because it turned out they wanted you also to confirm that you were coming.  I wondered if they were testing the waters for an insurance-based cancellation of some sort, but on reflection I think they were just shoring up their defences about complaints.  As The Age’s reviewer of the Melbourne concert on Wednesday put it, inferring a sizeable acceptance of the refund offer from the presence of young people picking up tickets on the night: “If you’ve paid for a first-class seat on a plane, being bumped to business class for the same price would smart.”

In Sydney it wasn’t crowds of young people, but instead a bigger than usual free list gang which crowded the box office foyer – easily numbering in the hundreds.  Familiar faces from the SSO and the AOBO could be spotted and obviously it was open season for them (confirmed to me by a conversation with an AOBA member I ran into at the greengrocer this afternoon).  And fair enough.  I expect many of them were in fact as interested in hearing the MSO in a rare Sydney outing as they were in hearing Ms Denoke.

The first half was:

Wagner  Tannhäuser: Prelude
Wagner  Die Walküre: Du bist der Lenz
Wagner  Tristan und Isolde: Prelude and Liebestod

From where I was sitting, the opening pilgrim’s-chorus theme in the Tannhäuser was mellifluous, though it lacked the sense of occasion that it has when it comes at the start of the night in a darkened theatre and in a way that I can’t quite put my finger on, an antique processional tread. It was impossible for me to get a good impression of the subsequent busy violin figuration, which came to from over the lip of the stage with the result that it sounded, whether it really was or not, scrappy.  The excerpt from Die Walküre was so brief that it came across more as a warm-up than anything else.  Oddly the program notes attributed the MSO’s first performance of this to a tenor: my guess is that it was coupled with Winterstürme, which really makes for a more satisfactory [albeit still bleeding at the end] chunk.

Up close I got maybe too much of the jaw-wobbling needed to support Ms Denoke’s big and creamy voice, and she seemed perhaps too modern, European and svelte to convince as Isolde.  The thing really was that to hear the Liebestod just after the prelude foreshortens things (it’s the bleeding-chunk criticism again).  When the famous wave breaks it should be the culmination of hours of build-up, rather than just 10 minutes.  Still, it was nevertheless enjoyable in a slightly out-of-context way.

In the second half, I moved back to the middle of row R, next to a man whose wife had cancelled for the evening: they’d been to the SSO that morning and had originally booked to hear this concert on Saturday rather than Friday.  I caught a glance of his ticket and saw the $169 and thought: “ouch!”

The second half was:

Strauss  Der Rosenkavalier: Suite
Strauss  Salome, Op.54: Final Scene

The Rosenkavalier Suite was luxuriant stuff and Davis was well in command of his gang.  The quinty string stuff gets rather less attention in this version than I would like and it ends jauntily – the duet from near the end only lasts a moment in this version.

It’s clear that in appointing Sir Andrew Davis the MSO has taken a leaf out of the SSO’s book with their engagement of Ashkenazy and whilst I expect this has been expensive (as with VA for the SSO) the signs bode well, even if he will not be there very much in his first year at all.

Given what followed, I rather wonder why they couldn’t have included the Dance of the Seven Veils – it’s not as if the program was overly long as it stood.

The Salome gave a chance to hear Denoke at a distance.  In the big orchestral stuff the orchestra could have held back a bit.  Despite the recent acoustic improvement, the Concert Hall is more resonant than an opera theatre.  She came into her own by the end (she has just performed the role to acclaim in London) and received a rousing ovation.  It was not [crucial word inadvertently omitted on first posting] I think, merely out of a determination to have a good time sans Voigt.

Which brings me to the title of this post.

Strangely enough, the Melbourne Symphony Orchestra was the first orchestra I heard in the Opera House Concert Hall.  It was a try-out concert before the official opening, and they played Tchaikovsky 5.  I can’t remember who the conductor was but my best guess is John Hopkins.

Since then, perhaps I have heard the MSO twice in the flesh before this concert.  At first I could not recall when but now I think it was when I lived in Canberra in the early eighties, when each of the Sydney and Melbourne orchestras paid a visit for the ABC subscription series.

At that time we used to hear lots (mostly from Melbourne, surprise surprise) about how the Melbourne orchestra was much better than the Sydney orchestra, and there may well have been something in that.   It is difficult to be dispassionate about these things, because the old Sydney-Melbourne thing is so deeply ingrained.  Since then, I fondly imagine the SSO has pulled up its socks.  It is busier than the MSO, has a substantially larger subscriber base, has a larger and better-paid establishment (and price of living differentials between the cities have narrowed).  It used to be said that the MSO had more adventurous programming, but the Caetani episode put a bit of a dampener on that line of argument and the suggestions at that time that the MSO could manage without any chief conductor at all are unlikely to have been a healthy sign.  One advantage that the MSO probably now has is the proximity of the Australian National Academy of Music.

The truth is, with the Sydney-Melbourne thing, that no two cities could possibly be more alike, and I expect this is also true of the orchestras.  Of course there are differences, some of them attributable to the principal players in the wind and brass sections (I’m thinking Crellin/Doherty in the oboes here but there must be others).  To me it is a shame that more of an effort is not made to allow people in both cities to hear both orchestras from time to time.  The problem is that there is nothing to be monetarily gained from it: the lesson from the TSO’s forays to Sydney and of the two-then-one concert plans for Voigt in Sydney is that free-standing concerts are a fraught venture.  The obvious solution is that they should swap an orchestral series slot in each city.  It’s not as if the SSO, at least, has not been above palming off the AYO on its subscribers in the Meet the Music series in recent years.  Even better would be if this could be done under the batons of their respective chief conductors, because that is the etiquette for touring.  That might be a harder sell, given the obviously limited availability each chief conductor has.

This is something which I might have raised with Sir Andrew when I unexpectedly came across him having a durry at interval (as I was too, having relapsed) at the top of the Aztec-temple-inspired steps.  That would have been unfair: I’m sure he needed a breather and time to start thinking about Strauss.  So we briefly exchanged the usual smokers’ jests about a breath of fresh air and I belatedly remembered to say that, of course, we were all enjoying the performance.

I could I suppose have raised it with the SSO’s Rory Jeffes, evident on the free list, but having witnessed his display of masterliness in Shanghai in 2009 I expect I would be wasting my breath.

It’s in honour of my moment with Sir Andrew that I have linked at the head of this post to the King’s Singers’ filmed version of Come, Sirrah, Jack ho!  It’s hard to imagine such a scene being filmed today, though you can sometimes be surprised.

The lyrics to that are:

Come sirrah Jack ho,
fill some Tobacco,
bring a wire and some fire,
haste away, quick I say,
do not stay shun delay,
for I drank none good today.

I swear that this Tobacco
it’s perfect Trinidado
by the very Mass never was
better gear than is here
by the rood, for the blood
it is very good ’tis very good.

This strikes me as an early use of the term “gear” in relation to substances.

OMG, I have gone on rather.  Is anyone still with me here?

With such a wealth of digression, it seems apposite to say:

This is Wilfrid Thomas Marcellous from London Sydney, thanking you for having me at your place.

David Heilpern throws the book, misses, and throws it again

This could become part of a series.

David Heilpern is a prominent   magistrate who currently presides on the north coast of NSW.  I have noted one  of his decisions before on this blog.  Early in his career on the bench he handed down a courageous decision concerning offensive language.  Prior to his appointment he had a rather odd walk-on role as a recipient of confidences from Atticus Busby concerning the alleged confessions made to Mr Busby (then a student at Southern Cross University where Mr Heilpern was a lecturer) by Irena Hatfield concerning the death of her husband in 1985 (for which she was subsequently tried and acquitted).

But I digress.

As part of his duties, Mr Heilpern presides in the Children’s Court of NSW.

On 5 July 2011, he presided over a matter concerning 5 children who had been placed in the care, notionally, of the Minister, but actually in the care of foster carers selected by an agency which has had its own colourful rise to prominence, Life Without Barriers.

On that occasion, a Mr Donaghy, solicitor, appeared for the mother.  The hearing on that day was not completed.  As Mr Heilpern subsequently put it, this was not the fault of the legal practitioners.  What he doesn’t quite spell out is that it actually was the fault of the DOCS (or whatever it is now called) officers who put on affidavit evidence which entirely failed to allude to various incidents of mistreatment of the children while they were in the foster care arranged by the agency.  This only came out when Mr Donaghy cross-examined them.

The matter was adjourned, part-heard, to 22 November 2011 in Grafton, where it was set down for two days’ hearing.  No other matters were set down for those days.

The matter at issue appears to have been whether care arrangements could be made which would enable the children to be placed in the care of relatives and presumably the conditions on which the mother would be able to see them.

At some stage, the department shifted its position to one “more favourable to the mother,” although they did involve separating the children.  The department served some care plans on Mr Donaghy on Monday 21 November, the eve of the hearing.  Two other care plans were not served then though the department indicated to Mr Donaghy what they were proposed to be.  It looked as though the matter might now be able to be settled.  A two-day hearing would no longer be necessary.  Of course, this belated concession by the department depended on the mother being able to respond to the new care plans and absorb their contents overnight.  At this stage it seems the mother did not accept that the children should be separated.  In other words, even if “favourable” to the mother, the department’s proposal was still unacceptable to her and was being offered as a kind of ultimatum.  It appears there were discussions on that day between a Mr Wheelahan, for the department, and Mr Donaghy, but the matter was not yet resolved.

On 22 November 2011, Mr Wheelahan appeared for the department (or possibly for the minister), a Ms Steiner appeared for the children.  The mother and Mr Donaghy were not there.

Mr Heilpern learnt (somehow) that Mr Donaghy was in fact in the Federal Magistrates Court that morning at Lismore.  He stood the matter down for an hour and a half and indicated that he wanted Mr Donaghy there.  When the matter resumed, Mr Donaghy was still not there.  He had engaged a Grafton solicitor as his agent who indicated that he was instructed to seek an adjournment until the next day and that discussions between the parties were continued.

This meant a wasted day for Mr Heilpern and his retinue of court attendants and sheriff’s officers.

The next day, Mr Donaghy appeared.  The matter was resolved by consent and orders made.  But Mr Heilpern was not happy with the course of action that Mr Donaghy had adopted.  It is for the court and the court only to vacate a hearing date, and Mr Donaghy should not have taken upon himself to effect this unilaterally, including (according to Mr Heilpern) by telling his client, the mother, not to come down from Brisbane for the hearing.

There was a testy exchange between them.  Mr Heilpern informed Mr Donaghy that he was considering making a costs order against him personally. He adjourned the matter to give Mr Donaghy an opportunity to obtain legal advice, and to prepare any affidavit material and submissions.

Mr Donaghy did not prepare any affidavit or written submissions.  He appeared on the next occasion, 27 February 2012, where, according to Mr Heilpern, he

made some extraordinary submissions … in a most unseemly and rude manner. He stated that he did not make written submissions because “this is simply running up costs that I can’t recover…I’m not getting paid for this and I object to you dragging this matter out in this manner”. He stated that care was a specialist jurisdiction where specialist magistrates learn that DOCS “put forward material that is not correct, that is not complete and that is not in the best interests of the children”. He stated that I should not make a costs order against him because:

“…it would be very unfortunate for the Children’s Court to appear to consider that assaults upon 12 year old Indigenous children, locking children in their bedroom for 12 hours overnight, is somehow acceptable behaviour. And, it would also be unfortunate if the message was to be sent to the Department of Community Services, well you can file documents with the Court that are misleading and if anyone questions you, the persons who question you will be hit with a costs penalty”.

Mr Donaghy did make some more substantial submissions, including some later written communications, where he drew Mr Heilpern’s attention to decisions which held first that the power of the Children’s Court to order costs was limited to exceptional circumstances, and that in any event the Children’s Court had no power at all to award costs against a non-party, including a legal representative.

Mr Donaghy was right about this.  It follows that it was Mr Heilpern who was out of order in threatening a costs order, and he did not make one.

Regardless of the question of any costs order, he seems to have taken the view that Mr Donaghy has committed professional misconduct.

He published a judgment.  The final paragraph is as follows:

I will have the registry forward a copy of this judgment to the President of the Children’s Court. There are three reasons for this. Firstly, it may be appropriate for him to consider representations to amend the legislation to permit an order for costs against a legal practitioner. It is hard to imagine a policy reason why costs against legal practitioners cannot be ordered in care proceedings, but can be in civil proceedings. Secondly, it may be appropriate for him to forward a copy of this judgment to the Legal Aid Commission of New South Wales so that they are at least aware of the waste in this case. Thirdly, it may be appropriate for him to consider a complaint to the Legal Services Commissioner regarding the conduct of the practitioner.

The judgment includes a lengthy extract (selected, of course, by Mr Heilpern) of the exchanges between Mr Heilpern and Mr Donaghy on 23 November, as well as Mr Heilpern’s selection of a few of Mr Donaghy’s other more heatedly indignant and probably less well-judged submissions.  As the Court of Appeal has had occasion to comment on other occasions, such exchanges are rarely edifying.

In my opinion, in his concern for the court’s dignity and control of its own processes, Mr Heilpern has chosen to overlook the fairly obvious point that, had Mr Donaghy and his client turned up on the 22nd of November, just as much court time and resources (as well as Mr Donaghy’s own costs, presumably also met from the legal aid budget) would have been wasted, because at that point his client (the mother) had not agreed to the department’s proposals.  The party which should have sought an adjournment at the earliest opportunity was the department, on the afternoon of 21 November, when discussions between Mr Wheelahan and Mr Donaghy were taking place.  My own experience of litigation against government departments leads me to the view that at least as much ink could have been spilt excoriating the department in question for this as thundering from the bench against Mr Donaghy.

Postscript: but Mr Heilpern’s effort in publishing the judgment did not go to waste, as the Administrative Decisions Tribunal, unconstrained by any rules of evidence and hence section 91 of the Evidence Act, relied upon it in reaching the view that Mr Donaghy’s actions amounted to unsatisfactory professional conduct.

Striking improvement

On Friday night to hear the SSO play the Bruckner 8, conducted not by Donald Runnicles but by his conspicuously unheralded replacement Lothar Koenig.  Julian Rachlin was the soloist in the Berg violin concerto.

As ever, Bruckner brings brass fans out in noticeble numbers.  They are the less-nerdy-looking boys and young men in the audience, as well as at least one other old friend (a French Horn player) whom I always run into when the big B is on the bill.

I’m sorry I didn’t do a bit more preparation (or, I confess shamefacedly, any preparation) for the Berg, which was over before I could really get into it.  So I can’t really comment on Rachlin’s performance, other than to express surprise that he had some music on a music stand, though he didn’t appear to make much reference to it.

The concerto refers to a Bach chorale which emerges (though apparently sublimated in the structure before that) in the last movement with incredible sweetness.  Whenever I encounter such homage I always think of the homage in the film Gremlins, where the gremlins go to the cinema and catch a bit of Snow White and the Seven Dwarves: the risk is that the work homaged can sometimes elicit an invidious comparison with the work in which the homage is placed.  If I’d prepared myself more for the Berg this probably would not have been so as the Bach bit just has the unfair advantage of familiarity.  The two came together with a real poignancy at the end and true beauty.  I didn’t want it to stop.

I think I’ve been bowled over more by the Bruckner in the past – and I’ve heard the SSO play it in 1979, 1989 (or circa, which I think was for some reason in the Town Hall) and 2005 when Nézet-Séguin memorably replaced Maazel.  On this occasion it excited more admiration than affection.  Maybe I’m getting too blase.

What really distracted me from any critical evaluation of the performances (even supposing I were a critic) or even the works was the striking improvement in the Concert Hall’s acoustics which is the product of the trials and experiments first noted on this blog in 2008.

That is potentially a bit unfair to the orchestra on this occasion and Herr Koenig in particular (who may, after all, be responsible for some of what I was putting down to the acousticians’ work), because the big lesson from the Berlin Philharmonic’s visit in particular is that the acknowledged deficiencies of clarity in the Concert Hall can be overcome, though perhaps what an orchestra needs in part is an opportunity to hone its skills in a clearer acoustic before venturing into the Concert Hall’s blurr.  That was certainly Edo de Waart’s view when he at least was able to move the SSO out of the bathroomish Eugene Goossens Hall and into the Concert Hall for its rehearsals.

Visually, things still looked a bit makeshift, and I guess there may still be some adjustments to come. At the risk of repeating myself, all I can say is that the improvement so far was more than I had thought possible or likely.  It seems unfair to put it like this, but I really hope it wasn’t just Lothar Koenig’s incredible skill that was responsible for it.  Future concerts will tell.

Anyway, let’s hope that the cargo cult of the sound settles down and I can respond less self-c0nsciously to the improvement in purely musical terms.  In that case I am looking forward to an acoustic dividend with artistic consequences, and especially being able to hear the woodwind, and quieter string details (on Friday some moments of clarity were not entirely flattering), not to mention the horns (on Friday of course we also had some luscious Wagner tubas) and even the other end of the brass placed more precisely on the sound stage.

A thousand miles from care – 4

This is the latest in a series of posts I have written concerning the long-running dispute between the McLaughlins and those controlling the (previously) company-title home-unit building Dungowan Manly.

The background to the dispute is set out in my first post on this topic, and the bulk of the litigation in my second.  A subsidiary dispute, in which the McLaughlins were largely unsuccessful, was the subject of my third post.

To cut a long story short, the dispute involved plans to redevelop a home unit block in Manly (Dungowan Manly) which were opposed by the McLaughlins but which were pushed through by the majority, led by one Mr Garratt QC, a Melbourne barrister, who at all times rather forcefully maintained that the redevelopment did not require the McLaughlins’ consent.  This proved to be wrong – subject, that is, to any further appeal – which in the circumstances cannot be ruled out.

I have only alluded to it indirectly in my first post, but there is also something rather odd about how Mr Garratt became the owner of multiple units in the building (or rather, the shares representing the right to occupy those units) without the true beneficial ownership of those shares being disclosed.

Whilst the McLaughlins’ opposition might seem to have been obstinate and pig-headed, the approach adopted by the company towards them was likewise so, conditioned by Mr Garratt’s view which was adopted by the majority.  And the McLaughlins’ obstinacy should be viewed in the light of their offer to sell their shares which, because of Mr Garratt’s view, was not taken up, even though the company had obtained finance which would have enabled it to do so.

In the main dispute, Justice Ward awarded the McLaughlins relatively modest damages of $200,000 for breach of the statutory contract under section 140 of the Corporations Act and about $14,000 for oppression, and ordered that the company pay the McLaughlins’ costs.  The damages were relatively modest because her honour discounted them by “about two thirds” because she said the buy-back of their shares at $950,000 which was mooted at the beginning of the distpute might not have occurred and that the McLaughlins had seemed not to have mitigated their damages by agreeing to sell their shares to the company at a price determined by an independent valuer.  As far as I can work out, this meant that they should have given in to the majority, because the value an independent valuer would have ascribed to the shares would presumably have been the value of the shares following the course of conduct (in breach of their contract with the company) that the company had adopted.  This seems a bit rich.

The company appealed both orders and the McLaughlins cross-appealed the amount of damages for breach of the statutory contract.

The appeal was originally set down for early 2011 but ultimately was not heard until April-May 2012.  This was partly owing to the unsuccessful stratagem adopted by the McLaughlins to attempt to  prevent the company proceeding with the appeal which was the subject of the intervening round of proceedings before Pembroke J in 2011.

Yesterday the Court of Appeal handed down judgment which was unanimously in the McLaughlins’ favour: the appeal was dismissed and the cross-appeal upheld by increasing the damages under the statutory contract from $200,000 to $513,129.45 as at March 2010, plus interest.

It’s not clear to me right now how the McLaughlins will extract this money, given that the building has in the meantime been converted to strata title, but I think there was something in the fine print of that conversion which protected the McLaughlins in relation to that.

a bunker, a castle and a sculpture rolled into one, yet filled with light

That’s the Australian Architectural Association’s round-up on the Kuringgai campus of the University of Technology, Sydney, previously the Kuringgai CAE and before that the relocated (from Darlinghurst but itself previously relocated from Balmain) William Balmain Teachers College. OK, I know: it’s hard to see all that from the picture (taken from them) inserted above.

I learnt today (comically, that is because I am an alumnus of the totally-unloved-at-least-by-me but then affiliated-with-the-UTS College of Law) that teaching is to stop at this campus at the end of 2015. UTS has had the surrounding land rezoned “residential” and sold it to Defence Housing Australia.

Here is a picture from the advertisement prior to that sale:

UTS says that:

We are currently assessing our options, which include the possible future location of administrative or research activities at the site. We are also in discussions with the NSW Government regarding its interest in the site.

It’s hard to imagine what use anyone will really find for it. As with the Darling Harbour Convention Centre, now facing the chop, or the old Sydney University Law School building, it feels odd for public buildings new in my lifetime to have obsolete, even though the campus, at the bottom of West Lindfield, has always struck me as being chronically inconvenient.

At the film festival

June long weekend each year marks the beginning of the Sydney Film Festival.

Because of the time of year and main venue, this festival is always associated in my mind with well-rugged-up crowds at the State Theatre. Black is big.

At the risk of repeating myself (see the link above) a big part of the attraction for me in this festival is seeing a film inside the State Theatre. The view is probably better downstairs or even in the Mezzanine Level, but the feeling is best if you are upstairs in the circle when there is a full house. It’s all to do with the crowd dynamics.

Sometimes different parts of the theatre react differently. At one point this year there was an odd moment when the people in the stalls all laughed at something and we caught their laughter from afar in a less-laughing dress circle.

It’s a few years since I managed the full, film-binge experience and even then it was a pale shadow of what the true afficianandos submit themselves to. This year I went to four films, one of which (sadly) was at a more anonymous modern cinema. As I am going away this weekend, that’s my festival for this year.

These are the films:

Amour – a harrowing account of an elderly Parisian couple whose relationship is tested (as they say) when the wife has a stroke and her husband undertakes to care for her at home as her health steadily and dramatically deteriorates. This is a bit close to the bone for people my age as it fairly unfinchingly depicts stuff that we all know happens and which we increasingly see happening to our parents, their friends and our contemporaries’ parents and which may well happen to us in due course, but which we don’t generally care to dwell on. I’m not going to suggest to my parents that they go and see it.

Amour won the Palme d’Or at this year’s Cannes film festival, so were it not for the experience of seeing it at the State I could probably have waited for a local release.

Once upon a time in Anatolia – a Turkish police procedural – an account of an overnight expedition by police, a prosecutor and a doctor into the countryside with two suspects in search of a corpse and then its retrieval. Pretty slow but fascinating: almost imperceptible plot but rich in texture and conversations on a multitude of topics in the “My Dinner with Andre” tradition. David and Margaret gave it four and a half stars but Margaret did point out that it is 2 hours and 37 minutes.

These two were both pretty slow: you are meant to feel this pace as part of the “art.”

“Eleven Flowers” or 我十一 (Wǒ Shíyī = me at eleven or I was 11). Chinese film a bit in the “Little Chinese Seamstress” tradition though rather less picturesque, based apparently on an incident in the film-maker’s childhood when with his family he was living in a kind of internal exile in the provinces. D comments that most of this sort of thing is for foreigners only (it was, it seems, a French co-production) and dismisses it as 文化革命– chic, in this case a child’s-eye view. Some of the acting was a bit wooden and acting and plot tended to be mawkish. Probably the weakest film of the bunch though not without charm, even if that relied on having four small boys as the main characters.

Barbara (2) – this was my favourite, though it too could be said to be part of a post-Communist genre, here dealing with the former East Germany, though it was far from being Ostalgic. In this case, the titular Barbara is a doctor who has been banished from Berlin to a provincial hospital after having applied to emigrate to the west. She comes under surveillance (though rather less high-tech than that in The Lives of Others) which she successfully evades whilst making arrangements with her western lover to get away. Meanwhile, distractions arise in the form of a rather cuddly fellow doctor (who is keeping an eye on her on behalf of the Stasi) and the demands of her patients. As in Once upon a time [etc] this film assumes a special moral position for the physician. This seems to me to be a literary tradition, especially in relation to life in the provinces (I first wrote Chekhovian here then wondered if I was just making that up, but have since noticed that Helen Garner makes the same association in The Monthly so on the strength of her lit-cred I guess I wasn’t just making that up or misremembering.)  It’s a position sometimes accorded to school teachers. Few think so well of lawyers and anyway they rarely stray far from town. Turgenev’s The District Doctor also qualifies for an allusion in the course of Barbara.

I enjoyed this film the most because not only did it have a feel for and recapture Osti aesthetics (I made some friends in East Berlin in 1987 and spent some time in the former east shortly after 1989, so I could recognize the design tropes) but also because it had a real plot, even though this entailed a certain romantic implausibility for the concomitant twist.

My next wintry diversion, coming up shortly, will be the quadrennial SIPCA – the Sydney “International” Piano Competition. (The A stands for “Australia.”) The competitors have been selected and some of the jurors announced. More of that later, I expect.

Concert was good

Last night to hear the SSO play Brahms’ second piano concerto and Shostakovich’s sixth symphony with Philippe Bianconi and Oleg Caetani.

There was some excitement abroad in the city owing the the Vivid Festival.  I have rarely seen so many people in town other than on new year’s eve or for Australia Day.  I’ve rarely even seen this since for many years I have avoided such crowded public celebrations.  The crowds and the traffic delayed the concert start by a bit over ten minutes and latecomers were admitted.

Brahms’ piano concerti are towering works.  In both of them, I think the difficulty for the soloist is to manage the muscularity of Brahms’s pianistic writing but to find room for relaxation into lighter or more lyrical moments.  Each, of course, has a slow movement where this relaxation is clearer, and the second lightens up in the last, fourth[!] movement where Brahms almost trips off into Hungarian Dances territory.  I could have done with a bit more occasional relaxation from Bianconi in bits of the first movement, and things took a little while to gel in the second movement (though I thought Caetani guided the transition to the second, major-key, section, particularly well).  For my taste, Catherine Hewgill played the cello solo in the middle movement with too much vibrato, too light a tone and a rather tenuous upper-register section.  To be fair, others thought she played it well.

Predictably, latecomers had to be admitted between movements.  It would have been better if Caetani had been forewarned of this and waited for them to find their seats – especially the elderly couple who had to get to their own seats in the middle row and then – wait for it – actually discussed which seat they were meant to be in and had to trade places.  What were they thinking?  “I’m in 28. ” ” No, I’m in 28.”

I thought the performance deserved a warmer reception than the audience gave it, but maybe people find the Brahms rather too heavy going.

There was a seasonal plentitude of coughing.  I am convinced that people who cough in slow and quiet spots do so from ignorance rather than infirmity.  They think these bits (actually moments of suspense) are simply filling.  The proof of this is that they were able to keep perfectly quiet in the encore – Debussy’s Gardens in the Rain, in an interpretation that suggests that some of Bianconi’s muscularity in the Brahms is just the way he likes to play.

The second half was the Shostakovich.  I had wondered why Peter Jenkin, principal clarinet of the Opera and Ballet orchestra, was sitting at third clarinet.  That all became clear when he had a spectacular solo on the e flat clarinet in the second movement.  In fact there were lots of big solos – after a wintry first movement, it becomes a kind of concerto for orchestra (Bartok’s concerto, of course, was famously parodied by Shostakovich in a later symphony – oops: wrong way round, though both may be a parody of Lehar).  Caetani gave bows at the end to some, including, of course, Alexander Oguey on cor anglais, but seems to have forgotten concertmaster-for-the-night Kirsten Williams, who I thought acquitted herself particularly well in her solo and also her leadership.

It’s strange to think that Caetani was insulted and let go from the Melbourne Symphony Orchestra  because audiences were staying away from too much Shostakovich.  (His program biography discreetly passed over any mention of Melbourne at all.)  I can’t help thinking Caetani was the fall-guy for other difficulties.  Was Harold Mitchell Caetani’s very own Rowena Danziger?

Afterwards, in an hour-long trek back to the car, we took in some more of Vivid, including a detour through the Argyle Cut.   The picture above (pinched from the ABC) doesn’t really capture it because what was nice was how the picture grew out of what first looked like cracks in the rock and then became a kind of living wallpaper.  The animated cartoon projections on the Customs House were probably the biggest crowd-pleaser, even if some think such installations are a little passé.  We also liked the installation at the western end of the Quay which was activated by shouting or screaming.  On the way to the concert this was maintained by excited screams of children, on the way back it was young adults.

It ensured a manic [no,] ludic, festive atmosphere – remarkably unmarked by any conspicuous consumption of alcohol or its effects.  Which is just as well given that, with its customary good grace, Cityrail had only opened the public toilets at the west end of Circular Quay station.  Patient crowds queued outside the handicapped toilet at the eastern end (probably ignorant of the existence of the other set at the western end) and of course even at the western end there was a large line outside the ladies’.  I’d say “shame, Cityrail, shame!” but Cityrail is generally such a shameless organisation that there seems little point.

It was after 11.30 before I was home.

D comes to the opera with me and would be happy to go to the ballet or dance, but his interest in concert music is weaker.  Mostly I go without him.  I go to the Saturday night concerts and the SSO piano recitals with the “Dulwich Hill gang” – or those who are not away from Sydney as some of them often are.

When I get home my returning announcement is almost invariably “Concert was good.”  The absence of an initial “the” is by sympathetic osmosis from D’s own English, influenced by a first language which has demonstratives that sometimes serve that purpose but lacks a dedicated definite article.  It’s a little joke or ritual that has grown up quite spontaneously.

After all, what would be the point of going to a bad concert or not enjoying a concert once you had got to it?  I’m not a critic.

But good it was.

Die tote Stadt

This opera opens Opera Australia’s Sydney winter season this year.

It requires a large post-Straussian (that’s Richard-Straussian) orchestra.  The Opera Theatre’s pit cannot fit a large orchestra.

When you have a large orchestra, that usually means that there is a large complement of wind and brass (and sometimes percussion).   Wind and brass parts are generally solo parts: that is, every instrument has its own line; they don’t play ripieno – that is, in vocal terms, chorally.  You can have a wind or a brass choir, but that mostly still means that each instrument carries its own part.  The combination of different instruments gives colour to each pitch and the distribution of pitches (the voicing) then gives a vertical colour to the choir.  To balance the larger wind and brass sections, the number of string players, who mostly do play ripieno (though sometimes there can be divisi parts where the sections split, and even solo parts) has to be augmented.  That means that it is not really satisfactory to make room in the pit for all the extra wind and brass or other players by reducing the number of string players, even supposing that there is not divisi string writing which requires minimum numbers of string players.

One possible solution is simply to reorchestrate the work, which is what Stuart Challender did for the Australian Opera’s aborted “Ring” cycle many years ago.  I think this mostly must have meant simplifying the brass and wind writing.

Another solution is to go elsewhere.  In the past the Australian Opera put on operas in the Concert Hall and at the Capitol Theatre.  This is obviously expensive and has logistical difficulties, though the main difficulty is one of availability of either theatre, compounded by the fact that neither venue is really suitable for nightly set changes that any repertory performance requires.  The Concert Hall does not have any theatre equipment and the Capitol, originally a cinema, has no backstage space to store sets and is also rather too carpeted.

In an experiment about which I have misgivings,  Opera Australia is putting on Erich Korngold’s Die tote Stadt by simply moving the orchestra out of the pit altogether into another room in the Opera House and piping the sound in.  The inducement offered to accept this experiment is the rarity of the work.

This means that the conductor will be in the room (I think the Studio) with the orchestra, and that the singers will only be able to see the conductor on video monitors.

Understandably, perhaps also because of the relative unfamiliarity of the work, it seems that the singers are a bit nervous about this.  It is one thing to rely on a flicker on a screen for general rhythmic cues, but another thing for more detailed cues.  They have asked for a prompter.

Since the orchestra pit is not going to be used, the stage for this production is being extended over the pit.   Presumably, if this had been thought of when the work was designed, a prompt box could have been incorporated into the design.

Instead, the prompter is going to sit in the middle of the front row.

I know this because earlier this week someone from Opera Australia gave me a call.  The prompter is going to sit in my seat, so I will need to be moved.

They offered me a seat next to our seats.  That did not seem immediately attractive to me: surely it will be distracting to sit next to a prompter.  In any event the attraction of a front-row seat is considerably reduced if there is no orchestra in front of you and if the sound is to be amplified proximity will be less important and may even lead to incongruities at close quarters between the singers’ actual voice and the orchestra’s electronic one.  My experience of sitting right up against the extended stage in this year’s production of The Magic Flute (when we were moved back to what is usually the second row to make room for the extension) also left a lot to be desired.

So now we are  to be in the middle of row E.  For me, for the proposed mode of performance, that seems pretty much ideal.

I still have misgivings about this experiment, but I am now much better disposed towards it.

Incidentally, the dead city of the title is, superficially, Bruges, but really the mind or heart of the protagonist, Paul, as he mourns the death of his wife.  The scope for lush big-orchestral Four-last-songs-ism is obvious and I am allowing myself to look forward to that, even if it is to be mediated through loudspeakers.

Chinese Robin Hood

It’s an old story.

A agrees to sell something to B. B gets possession of it.

B then sells it to C.

A wants it back, usually because B never paid for it – often because a cheque bounced.   (If C has meanwhile sold the car, A might ask C to pay him for it because he has wrongfully dealt with A’s property.)

C says “but I paid for it.”

B is nowhere to be found. Such a character is typically referred to in the case law as a “rogue” – a term of art which strangely I have not found specifically referred to in dictionaries, though it is quite distinct.

A leading case which we all learn in law school is Lewis v Averay. Comically, or nostalgically if you are the right age, the rogue is a man in tights, or passed himself off as one: he managed to get the owner of a car (Lewis) to sell it to him with payment by cheque by convincing him (by means of a forged Pinewood Studios pass) that he was none other than Richard Greene, who had played Robin Hood in the 1950s English TV series. This person then sold the car to Averay. The cheque was forged and worthless and, surprise surprise, “Richard Greene” was nowhere to be found.

The case is taught as one about “mistake” and whether or not that vitiates a contract. That is because the assumption is that if there was a contract, then property in the car passed to the rogue, and when Averay bought the car from the rogue, assuming he didn’t that B was a rogue, it then became his. (That is a simplified version of the assumption, so far as it is embodied in the statutory codification of the law in this regard in the various avatars of the Sale of Goods Acts – eg, in NSW, section 28(2).)  If it could be said that Lewis only meant to sell the car to Richard Greene, then maybe there was no contract at all, the car never became the rogue’s, and it never became Averay’s. That was Lewis’s case. He won at first instance, but lost on appeal.

Averay, a bassoonist,  subsequently emigrated to Canada, where on last report he lived on a houseboat near Vancouver.

There are a lot of cars in the world and very many rogues.  A recent example of such a case can be seen in the judgment of Gibson DCJ in Detective Senior Constable Wilkes v Abou-Yaghi [2012] NSWDC 6.

Mr Abou-Yaghi (A-Y) sold his BMW X5 for $95,000 to a person who said he was a solicitor, a Mr Jeffrey Zhang.  There was in fact no such solicitor, so I shall call him Z. Prior to picking up the car, Z said he would pay A-Y with a bank cheque.  A-Y told Z he would keep the registration papers until this bank cheque was cleared.  A-Y and Z  signed a document as follows:

“I Hatem Abou-Yaghi state that I have sold my car, a BMW X5 2009 model, registration number: BLR96B on Wednesday the 6 th of July 2011.

The selling price was $95,000, the payment for the car was by bank cheque.

The registration papers for the BMWX5 will be sent when the bank cheque is cleared from Jeffrey Zhang NSW licence number: 16893252.

This is an agreement between myself, Hatem Abou-Yaghi, and the new owner, Jeffrey Zhang, that the above arrangement is suitable and legally binding.

Signed: Hatem Abou-yaghi [signature] (previous owner)

Signed: [signature] (new owner)[ie, Z]

A-Y provided the log book of the vehicle and two keys together with a BMW key ring. Z signed the registration transfer details, as did A-Y, but A-Y explained that he would keep these documents until the bank cheque cleared. Before Z left A-Y’s house, he took a photograph of the RTA registration paper on his mobile, stating that he may need this if he was stopped by police.

All of this happened a bit after 6 pm – Z rang A-Y at 5.58 pm to say he was coming round to pick up the car and the BMW was on the M2 expressway heading east from Seven Hills by about 6.52 pm.

At 5.52 pm, somebody had already placed an advertisement on the Chinese overseas-students’ web page, Tigtag, advertising the BMW for sale.

Jiaqi Guo, a Chinese overseas student, saw the ad at about 6.30 pm when he was surfing TigTag’s “Australia” ( 澳 洲 ào zhōu) and “cars” ( 汽 车 qì chē) section.  It said:

” 出 售 宝 马 X5

出 售 银 色 宝 马 X5, 价 格 55000。有 意 请 联 系 QQ:2420560656 “

[“Selling BMW X5

Selling Silver BMW X5, price 55000. If interested, please contact QQ: 2420560656″]

Jiaqi responded:

” 我 感 兴 趣 请 加 我 103442955″

[I’m interested. Please add me 103442955]

103442955 was his “QQ” number.  QQ is a popular free instant messaging computer program amongst mainland Chinese.

After that they communicated by QQ, and Jiaqi arranged to meet the person selling the car at the carpark of Kingsford McDonalds (next to UNSW), which he did at about 7.30. The person he met there said he was acting on behalf of the seller and that the car was not there yet. Jiaqi had been told that the sale was a hurried sale because the seller had just graduated and was returning to China. A price of $45,000 was agreed on, and Jiaqi was given the details of the car.

Jiaqi then walked home (he lived nearby) and over the next hour or so did the various checks you can do about a vehicle’s history and whether there are any encumbrances. These were satisfactory.

Jiaqi happened to have $45,000 in cash because he had recently withdrawn $40,000 to buy a car at an auction but had been unsuccessful and he apparently had the other $5,000 available. He returned to McD’s where he was now shown the car. He “fell in love with it.” He did not take it for a test drive or even get into the car before he handed over the $45,000. The registration papers were inside.  [Had he looked at the registration papers he would have seen that the purported transferor of the car was A-Y, who would seem unlikely to be a person returning to China after completing his studies.]

Aha! The registration papers! Yes, the registration papers! Presumably with the aid of the picture taken on the mobile phone, forged registration papers had already been produced.

The next morning, Jiaqi went to the RTA (the then name of the relevant NSW authority) to register the transfer. The forgery passed muster. That day, A-Y also lodged the notice of sale and banked the cheque.

A few days later, A-Y was told that the cheque was a forgery: it had been altered from an original figure of $40. He reported the whole thing to the police, which is how come the police finally seized the vehicle and were the applicants in these proceedings, which were in effect a kind of interpleader. Should the car, seized but no longer needed for evidence, be returned to Jiaqi Guo (from whom the police had seized it and to whom they would in the absence of any order, be obliged to return it), or to A-Y or even (I think a theoretical rather than a seriously advanced possibility) kept by the police on behalf of the crown?

Young Mr Guo lost his money. Judge Gibson found against him on two bases that she said were independent. He was not a purchaser in good faith – there were just too many fishy things about the purchase which he had been prepared to overlook. And further, relying on two 1958 NSW cases, the contract between A-Y and Z was “void.”

I’m not so sure about the second ground as an independent ground. It wasn’t so much that the contract was void as that the condition in the contract for the passing of title had not been fulfilled. Of the 1958 cases, one specifically did not deal with section 28 of the Sale of Goods Act (appellate courts were tougher about that sort of thing then) and both predated the reconsideration of what might constitute “possession” which occurred in the Privy Council case of Pacific Motor Auctions Pty Ltd v Motor Credits (Hire Finance) Ltd (1965) 112 CLR 192 in relation to the possession by a buyer who has already sold goods. Judge Gibson indirectly quoted this case via a subsequent High Court case. That case dealt with section 28(1), but a similar meaning of possession is usually thought to apply under section 28(2) to the person who agrees to buy goods and gets possession of them without becoming the owner and then sells them.

But that’s not really what prompted this post. This is an area of the law which is notoriously unsatisfactory. I haven’t the energy to deal with it and nor would I expect Gibson DCJ to be the one to cut or even unravel any Gordian knot.

What I really liked was the facts, the speed with which events unfolded, the abundance of evidence in a digital age (Z’s passage from Seven Hills to Kensington is traceable because he took various toll ways. As you might expect, Z didn’t bother to pay any of the tolls.) and most of all, the appearance of evidence, in Chinese characters, in a judgment of an Australian court. I expect this was itself enabled by the digital source of that evidence and its subsequent provision to the court in digital form.

Of course the biggest fishy thing about the purchase was that Mr Guo paid $45,000 for a car that was presumably worth something approaching $95,000. It was simply too good to be true. That counts for a lot, even if some of the other unusual factors pointed out to the court by the police could be put down to cultural differences.

Practical advocacy

This is an old case, but I had my own professional reasons to be looking it up.

One of the things which has long astounded me is the way in which enormous gifts (call them privileges if you will) have been bestowed on various commercial entities in the name of promoting progress in, for want of a better word, telecommunications.

You can see one example on every suburban street in Australia, where trees are trimmed to permit cables, originally for cable TV, that generally run just below the pre-existing telephone lines.  If you add up the foliage removed or prevented, it must count as the most extraordinary act of environmental vandalism.

Another example is the power conferred on telecommunications providers to install and maintain facilities under section 484 of the Telecommunications Act 1997.  That section baldly states “Schedule 3 has effect.”  Schedule 3 is headed “Carriers’ powers and immunities.”

In passing, I’ll just note that one of the annoying things about this trend to legislate by schedule (an approach also adopted in relation to the Competition and Consumer Act which has replaced the old Trade Practices Act and its various state Fair Trading Act counterparts) is that it has significantly reduced the effectiveness of internet-based reference and noting-up on Austlii, because schedules are given a single internet address and reference.   So you would need to scroll through the schedule to find clause 37, which relevantly provides that:

37   Exemption from State and Territory laws

(1)  This clause applies to an activity carried on by a carrier if the activity is authorised by Division 2, 3 or 4.

(2)  The carrier may engage in the activity despite a law of a State or Territory about:

(a)  the assessment of the environmental effects of engaging in the activity; or

(b)  the protection of places or items of significance to Australia‘s natural or cultural heritage; or

(c)  town planning; or

(d)  the planning, design, siting, construction, alteration or removal of a structure; or

(e)  the powers and functions of a local government body; or

(f)  the use of land; or

(g)  tenancy; or

(h)  the supply of fuel or power, including the supply and distribution of extra-low voltage power systems; or

(i)  a matter specified in the regulations.

Clause 7 (shorn of some detail) provided and provides that:

 7   Maintenance of facilities

(1)  A carrier may, at any time, maintain a facility.

(2)  A carrier may do anything necessary or desirable for the purpose of exercising powers under subclause (1), including (but not limited to):

(a)  entering on, and occupying, land; and

(b)  removing, or erecting a gate in, any fence.

(3)  A reference in this clause to the maintenance of a facility (the original facility ) includes a reference to:

(a)  the alteration, removal or repair of the original facility; and

(b)  the provisioning of the original facility with material or with information (whether in electronic form or otherwise); and

(c)  ensuring the proper functioning of the original facility; and

(d)  the replacement of the whole or a part of the original facility in its original location, where the conditions specified in subclause (5) are satisfied; and

(e)  the installation of an additional facility in the same location as the original facility, where the conditions specified in subclause (6) are satisfied; and

(f)  in a case where any tree, undergrowth or vegetation obstructs, or is likely to obstruct, the operation of the original facility–the cutting down or lopping of the tree, or the clearing or removal of the undergrowth or vegetation, as the case requires.

The conditions in subclause (5) and (6) were, in general terms, conditions that required that if replacing or installing an additional facility, what was done did not result in a facility with increased bulk or height or causing increased noise.

There is a different regime for new facilities requiring consultation and the like with a carve-out from that for facilities certified by the minister to be “low impact facilities.”  The bottom line is that local planning laws are overridden by the powers and immunities conferred on carriers by the schedule.  Other clauses have the same effect in relation to private property rights, though the schedule provides that to the extent that that results in acquisition of private property, compensation is to be paid.  That is a constitutional necessity because of the constitutional requirement that any acquisition of property be on just terms.

In 2003, Hutchison (now – 2012 – operating in Australia as part of the merged Vodafone Hutchison) was a carrier.  It wanted to put its transmitters and receivers in Oatley Park, a park on the Georges River in Oatley (obviously enough) which is in the local government area of Hurstville.  It told Hurstville City Council that it proposed replacing a light pole in the park with its own purpose-designed pole.  This met local opposition, partly because it was close to a school (there were fears which I am not actually sure are really very well-grounded about electromagnetic radiation hazards) but also, I think, because it was in a park.

Hurstville Council, which was also the trustee of the trust over crown lands which was responsible for the park, opposed this course of action.  It took the down the light pole.  Hutchison simply went ahead and put in its own pole as well as an associated equipment hut。  The council brought proceedings in the Land and Environment Court for the pole and hut to be removed as unauthorized development under NSW’s town planning laws.

In the Land and Environment Court, the Council lost.  Hutchison said that it was maintaining a facility.  This might seem counter-intuitive.  There was no facility there before.  But the court accepted that Hutchison was maintaining a facility.  That was because of the definition of “facility” in section 7 of the Act.  This said that:

“facility” means:

(a)  any part of the infrastructure of a telecommunications network; or

(b)  any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.

The original pole was a facility because it was “a pole..for use, in or in connection with a telecommunications network” because Hutchison intended to use the pole for that purpose.  In building its new pole and the associated shed Hutchison was maintaining the old pole (even though by then it had been removed) because of the extensive definition of maintainence in clause 7(3) already quoted above.

Amazing!

The decision was overturned on appeal to the NSW Court of Appeal.

Hutchison applied to the High Court for special leave to appeal.

Bret Walker SC, for Hutchison, then very much the counsel of the moment, opened with a splash:

Your Honours, it may not quite be the age of canals or railways, but in our submission what is colloquially known as the rollout of telecommunications network for so-called mobile telephony has presented a similar opportunity for legislatures to regulate, both in broad brush and in fine detail, the balance between the public interest in encouraging the enterprise carried out by people actuated by the profit motive and the balance also to be struck in relation to the siting and use of both public and private land and other property for the purposes of the technical equipment necessary to advance what is self-evidently seen as the public interest of having a sophisticated telecommunications network. The Telecommunications Act 1997 bespeaks that both explicitly and implicitly.

What he is referring to is the legislation in 19th-century England which enabled canals and railways to be built.  Without such legislation, any one landholder could presumably hold out and extract a ransom from the promoters of the canal or railway quite out of proportion to the value of the land for other purposes.   In fact, in Australia, such infrastructure (railways rather than navigational canals) was constructed by the state rather than by private companies.

Francis Douglas QC (subsequently appointed and then sacked as a judge of appeal in Fiji) appeared for the respondent council.  His opening line was:

Just because the case is about telecommunications does not make it important. It may make it sexy, but that is about all.

The application for special leave was refused.