Archive for August, 2015

Last night at the opera, 2015

August 30, 2015

On Saturday  to Opera Australia’s Marriage of Figaro.

Driving in I was treated to a particularly splendid version of the view at the head of this blog though from a later moment when the sunset has lost its red. The westward facing fronts of the city skyline caught the remaining light of the western sky and gleamed against a slate blue eastern sky in which the full moon was rising.

My neighbour was a man I have sat next to before on the odd occasion when I have been to a first night. He is always keen to tell me that he is a regular first-nighter, always sitting in his particular seat in the front row. On Saturday he also told me:

  • He had done the leaving in 1939 but had not done maths honours, which was the course that had calculus;
  • He was now remedying that by doing HSC maths – at present the 3 unit course;
  • He had worked as a ship’s doctor, including on Russian ships;
  • He had seen operas in all the great opera houses of Europe;
  • He returned to Sydney in 1968 [or maybe it was 1967] and had been going to the first night ever since;
  • He married when he was 63 – I took it he was now widowed;
  • Once, when Faust was on at the Tivoli, a fat tenor could not fit in the trap door down to hell.  A wit from the gods’ (a term he helpfully explained to me as the second circle) called out “So hell’s full then!;”
  • He had missed the first half of the first night of this production because he had to go to his HSC maths class;
  • He was now 92.

I very much enjoyed the performance.  Some of the more well, not  necessarily wayward (because that implies wrong) but dragged about tempi seemed to have moderated from the first time I went.  The part when Susanna emerges from the cupboard, however, was waywardly fast.  It is marked “Molto andante” or “Andante di molto” in the score:

Figaro Susanna emerges

Even if that Andante referred to bars rather than beats in the bar, you could scarcely say it was observed.  This is meant to be a moment of jaw-dropping surprise.  The Countess was facing the count so her “Susanna” became a “Susanna?” addressed to him and the Count then nudged her to turn around and see who it was (she was expecting Cherubino).  Apart from the  “?” which is not in the libretto (possibly not a determining point – I don’t know da Ponte’s punctuation practices), I don’t think relations between them are sufficiently civil for that gesture to be credible and indeed one of McVicar’s points going on from that is the Countess’s continued refusal to keep up appearances of civility with her husband.

While we’re on the stage direction, McVicar (as in previous productions by him) depicts an erotic tension between Bartolo and Marcellina from the start.  They finish the Vendetta aria sitting on Figaro & Susanna’s bed and just can’t help themselves.  This gives a good laugh but I think it steals the thunder of the later revelation that they are in fact Figaro’s parents and is inconsistent with his line that as an act or revenge against Figaro for depriving him of his former ward Rosina he would be happy to marry his old housekeeper, Marcellina, off to Figaro. It is the discovery that Figaro is the stolen (he likes to think stolen: still quite possibly abandoned in my opinion) Rafaello that rekindles Bartolo and Marcellina’s relationship.

According to McVicar, Cherubino does not actually want to marry Barbarina.  That may be so and together with the exchanged glances with the countess at the finale ties in with Cherubino’s subsequent one night stand with the Countess  according to Beuamarchais’ sequel, La Mère coupable  But why does McVicar depict Barbarina’s father Antonio as against the match?  It is surely a good one for her.

There are lots of details in the direction which I picked up the second time.  I liked that it is Don Curzio’s assistant who first laughs out aloud when it emerges that Marcellina is Figaro’s mother. He of course will straight away have realised that she cannot marry Figaro.

I can see that the last act is a difficult at to pull off.  So many irons are in the fire and they all need to be extracted. In my first post on this production I commented on the absence of pine trees.  That is not quite correct: there are pine branches overhanding the patio-like stage area and between them a moon appears.  The problem I think is a lack of pine trunks or of something to hide behind and of a suitable focal point of garden furniture.  There is a chair for Susanna and the Countess to sit on (this is important because it ostensibly serves to assist the disguise: Nicole Car is tall and Taryn Fiebig is short) but otherwise there is an enormous space (or seemingly enormous, which is a wonder: this is the SOH stage!) that people seem to drift around in.

The other gap in the last act is the missing arias of Marcellina and Basilio.  It is said they don’t advance the plot but for that matter neither do the Count’s and Countess’s in Act III.  In this production, which emphasises the class conflict aspect, Basilio’s aria at least could profitably be restored.

I appreciated Nicole Car as the countess more the second time around, though I still wished she had more to give at the end of Dove sono and at the very end of the opera when she emerges to forgive the Count.  Taryn Fiebig had a bit of a frog in her throat for her big aria but that didn’t prevent it from being a magical moment.

Richard Anderson (Bartolo) and Graeme Macfarlane (Don Curzio, the judge) are both good singers in their metier but I feel both were miscast in this opera.

Where I noticed it for Anderson was in the patter-like triplet section in his Vendetta aria: this point for me requires a big/fat voice which can nevertheless energise the multiple syllables -it’s a comical figure for his rage.  Anderson doesn’t have that kind of voice or mode of singing.

Macfarlane kept about two of the Michael-Kelly-introduced stammers (near the beginning) and after that was directed by McVicar as being chronically exasperated/enraged. I prefer the performing tradition of Curzio as a querulous and pedantic lawyer rather than a cranky one.  It is true that the enraged stylisation matched the way Macfarlane sang his big figure at the end of Act III  (fifth stave from the bottom):

Don Curzio's bit

I expect he sang it pretty much the way he has to sing it.

If the season were longer there would be more scope for fitting singers to their best suited roles.

Anything Goes, starting next Saturday, makes up the remainder of this year’s Sydney season.

Judge reading over your shoulder

August 28, 2015

One of the first lessons you learn as a lawyer is never to write anything that you wouldn’t be happy to be read by anyone. You can mostly rely on legal professional privilege to avoid what you have written falling into the hands of enemies of your client, but that will not protect disparaging remarks about your own client which you may be tempted to make to a fellow lawyer who also has to deal with that client. The same goes for rude remarks you may make about others: you can never foresee when, especially if you and your client later fall out (and believe me, it happens) such remarks may not embarrassingly see the light of day. A special category must be heated words you may be tempted to address to the other side.

This is encapsulated in the advice given to beginning lawyers: “Imagine the judge is reading over your shoulder.”

There is an example of this in the latest judgment in the Rinehart saga, in this case by Justice White on an application by the dissentient children, Bianca and John, for preliminary discovery – that is, production of documents to see if they want to pursue a case against their mother or others concerning her previous administration of the trust in their favour (of which Bianca has now been appointed trustee).

It involves Paul McCann, then a partner of Corrs, whose hardball tactics against John Ellis on the instructions of Cardinal Pell (or his secretary) came under scrutiny in the Royal Commission into Institutional Responses to Sexual Abuse of Children. Mr McCann has since left Corrs for a boutique firm.

Easiest just to quote Justice White – Rinehart & Anor v Rinehart & Anor [2015] NSWSC 1201 at [26] to [28]:

26. Corrs Chambers Westgarth’s letter of 23 January 2014 was signed by Mr Paul McCann, a partner of that firm. It contained statements which cannot be allowed to pass without comment. Mr McCann wrote:

“Any cursory examination of the information on which you have chosen to focus would make it clear that your analysis is disingenuous and mischievous. Either you are attempting to provide a misleading interpretation of the facts, or you and your clients do not understand the basis upon which financial statements in Australia are prepared (and have not bothered to read the relevant accounting policy notes in the financial statements).

Reserving your clients’ rights under such circumstances is a shallow and obvious admission of unwarranted greed on the part of your clients (and in one case, their partner).”

27. One of the fundamental ethical duties of a solicitor is to be courteous in all dealings in the course of legal practice (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 4.1.2 and formerly New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules) r 4.1.2). If the practice of law is to be regarded as a profession it should go without saying that courtesy should be shown as a mark of respect in dealing with professional colleagues. Discourteous conduct is likely to increase tensions, inflame disputes and bring the administration of justice, in its wider sense, into disrepute. As has been said:

“Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society … Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.”

(KA Nagorney “A Noble Profession? A Discussion of Civility Among Lawyers” (1999) 12 Georgetown Journal of Legal Ethics 815 at 816-817, quoted in Riley Solicitors Manual (LexisNexis Online) at [28,010.5]).

28. When such uncivil behaviour comes to the attention of the Court it should be noticed and condemned.


A thousand miles from care 5

August 27, 2015

I have been inattentive on this blog to ongoing developments in the sorry case of the McLaughlins against the onetime home unit company Dungowan Manly Pty Limited.  Previous instalments are at 1, 2, 3, 4.

The company was the owner of a block of flats on the seafront at Manly.  Broadly speaking, the majority of shareholders of the company, spearheaded by one shareholder and director, proposed to resolve the problem of an aging company-title building by building penthouse extensions.  One of the flats, owned by the spearheader, was to be sacrificed for a car-stacker to meet the increased parking requirements.  This might have seemed very noble of him but he was to be compensated and did own a more than the one apartment.

The scheme was resisted by the MacLaughlins, who owned a flat contiguous (I think above) the car-stacker. Their flat would obviously also be severely affected.  They tried to stop it going ahead but in the end were left to bring various claims after the event.  Before Justice Ward they had a points victory which probably would not have paid for their costs.  Even then the company, still led by the spearheader, appealed.

My last post was in the wake of a victory (of sorts) by the McLaughlins in the Court of Appeal, in June 2012.  I concluded:

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.

Famous last words!  As a commenter to that post reminded me, the fine print was in an undertaking given by the company in February 2010.  At that stage the hearing had been held and Justice Ward had reserved her decision.  The company was about to convert the flats to strata title and sell the building off to the new body corporate and each flat to the owners of the respective shares.  The McLaughlins wanted this stopped.  Rhetorically, they asked: if we win, how will the company be able to pay us?

The report of the case is McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 89 .  It is complicated but one point was that the McLaughlins said that if the shares were to be exchanged for strata title ownership of the respective flats, then not only should each shareholder undertake to contribute to any liability which the company might have when the music stopped, but also, that entitlement should be secured against each unit that was so transferred.

Justice Ward did not agree.  She thought that an undertaking by the company not to hand over the units to shareholders without an undertaking from each former shareholder to contribute would be enough. Her understanding of the effect of that undertaking is at [123].

I still cannot quite comprehend Justice Ward’s reasoning.  She acknowledged the risk that individual shareholders mike take the unit, sell it and then for whatever reason not be good for the money.  She seems to have assumed that the imminent delivery of her judgment would lead to an outbreak of justice all round.  It probably helped her reach this conclusion that she didn’t see the company’s liability to the McLaughlins as being particularly big.

In that, she was wrong, which is where our story begins.

Some of the detail is well recounted in a blog post on the topic by the redoubtable Dominique Hogan Doran.  All roads lead to Rome I guess, so I shouldn’t be surprised that her post uses the same two pictures I tracked down for  my first post on this topic.

First, for the sake of completeness, there was an unsuccessful application by the McLaughlins for indemnity costs. At this time the amount of interest was agreed so that the Court of Appeal’s judgment was finally $632,038.95 (inclusive of interest of $118,909.50): (Dungowan Manly Pty Ltd v McLaughlin (No 2) [2012] NSWCA 258. That is not the interesting part of the story.

Rather than attempt to collect the money from the “former” shareholders as Justice Ward had thought they would be by now (Pembroke J had found otherwise in a 2011 judgment: they were shareholders who formerly had rights attached to their shares to occupy units in the building), the directors of the company, whose chairman was the original spearheader, Rodney Garratt QC (of the Victorian Bar) put the company into voluntary administration.

Voluntary administration is a kind of half-way house where if the directors form the view that a company is insolvent the risk of the company being wound up can be averted if everybody (including creditors) can reach a deal.

The administrator endeavoured to collect funds from the shareholders by raising levies. Only one shareholder paid up. Mr Garratt disputed that the administrator was entitled to raise the levy and the remaining shareholders followed his lead.

The company was placed into liquidation. The liquidators had no funds to pursue the shareholders. All the company had left was the McLaughlins’ flat, which still belonged to the company in the now strata-titled building.

The McLaughlins fell out with their solicitors, Turner Freeman, over the amount and payment of legal fees.

In mid 2013 the liquidators applied to the court for directions as to what to do with the unit.  They wanted to pay themselves out of it (or more likely part of the proceeds of its sale).  The McLaughlins made a cross claim against the liquidator to say that the flat, at least, belonged to them.  Turner Freeman made a claim for security which it had over the flat – actually it went so far as to say it owned the flat.

The McLaughlins ran out of money.  By now acting for themselves, they sought to amend their claim further. In June 2014 (it took that long) it ended up in the corporations list before Justice Black. By then Turner Freeman were threatening to bankrupt the McLaughlins.

Justice Black summarised the position between the McLaughlins, the company and the shareholders  as follows (at [15]):

In summary, and subject of course to any submissions that might be made by any parties who are later joined to the proposed Amended Cross Claim, it might seem that shareholders in the Company had acknowledged, in the share surrender agreements, the Company’s entitlement to levy them for the amounts necessary to meet the amount of a judgment and costs in favour of Mr and Mrs McLaughlin; the Company had relied on that acknowledgement in resisting injunctive relief restraining entry into the share surrender agreements and a Judge of this Court had drawn attention to the importance of that acknowledgement and the need for shareholders to understand their obligations under it in her judgment declining such an injunction; the Court of Appeal had awarded damages and costs in favour of Mr and Mrs McLaughlin; none (or possibly one) of the Company’s shareholders have paid the amounts levied under the share surrender agreements and the Company’s chairman has contended that they have no obligation to pay those levies; the liquidators may have taken some steps, but he has not yet taken proceedings to recover the levies under the share surrender agreements; and the Company has not satisfied the judgment against it where it has disposed of the units in the block (other than Mr and Mrs McLaughlin’s unit) to its shareholders and they have not put it in funds to satisfy that judgment.

In the face of the opposition of other parties, Justice Black allowed McLaughlins to make some of the amendments they proposed on certain conditions. He also took the opportunity to suggest to Turner Freeman that it might not be in Turner Freeman’s interests to bankrupt the McLaughlins for the time being.

That did not mean that it was a plain run home for the McLaughlins. They wanted to bring claims on behalf of the company against the shareholders for the levies because the liquidator wasn’t doing it.  Such claims are called derivative claims.  First you need to get the leave of the court to do this, which meant there had to be another hearing before they could go ahead.

In September there was a diversion when Turner Freeman attempted to transfer proceedings in which the McLaughlins’ former barrister was suing Turner Freeman for his fees from the District Court (where the barrister, Mr Burchett, had brought them) to the Supreme Court to be heard with all the other claims: In the matter of Dungowan Manly Pty Ltd (in liquidation) [2014] NSWSC 1398.

Justice Black noted that this would have the practical advantage to Turner Freeman of avoiding Turner Freeman becoming liable to Mr Burchett in the District Court before any claim in the Supreme Court was determined, but rejected the application on the basis that the facts were not sufficiently in common.

My summary: it wouldn’t be fair to Mr Burchett to oblige him to get involved or stand by in court for the long arguments between all the parties involved in the company side of the dispute, and nor would it be fair to the parties other than Turner Freeman in the company dispute for them to have to stand by in the argument between Turner Freeman and Mr Burchett. Black did suggest that if there was a prospect the Supreme Court case could be determined quickly, it might be in Mr Burchett’s interests to wait and see in the District Court.

After a hearing in October, at the beginning of December Justice Black granted leave to the McLaughlins to bring a claim on behalf of the company against 4 of the shareholders who had not paid the requisite levies (two were companies, Loafer and Garmin, controlled by Mr Garratt QC) and otherwise to amend their claim.

You mustn’t think this was a mere formality. The shareholders fought it. See In the matter of Dungowan Manly Pty Ltd (in liquidation) [2014] NSWSC 1721. Some of the claims proposed by the McLaughlins were not permitted to go ahead.

Directions were also made to have the matter heard in March – which is about as soon as would be possible to fix a hearing as at the beginning of December.

The hearing took place over 5 days in March.

Dramatically, on the eve of the hearing the liquidator was still proposing to cut a deal with the shareholders, though it turned out he’d only actually been talking to the four shareholders who were parties to the proceedings who did not have the authority to bind the other shareholders. Such a deal (which was opposed by the McLaughlins and Turner Freeman) required the approval of the court. Justice Brereton dismissed the application. The liquidator and the shareholders wanted to adjourn the trial to try and rope in all of the shareholders to an agreement which they could then try to get approved, but Justice Black wasn’t prepared to give them that adjournment. One can assume that he wasn’t prepared to countenance losing the hearing time and putting the McLaughlins (and Turner Freeman and Mr Burchett in turn) to further delay.

Judgment was handed down on 1 May 2015: In the matter of Dungowan Manly Pty Ltd (in liq) [“2015] NSWSC 491. Justice Black held (simplifying a lot here):

1. The shareholders had to pay to the company the levies (that is, the calls for funds to pay the McLaughlins’ costs) which the administrator had demanded of them.
2. The company had to give the McLaughlins the title to the flat.
3. The McLaughlins had to give a mortgage over the flat to Turner Freeman.
4. Other money the McLaughlins would receive in respect of their damages and costs would also be charged to Turner Freeman to pay their fees.
5. The liquidator[s] couldn’t carve some value out of the McLaughlins’ flat to cover their own expenses. They hadn’t shown they couldn’t raise this money later from the shareholders by further levies.

If it were a race, you might say the outcome of this round was:

  1. Turner Freeman – because they got an extensive security over what the McLaughlins eventually get.
  2. The liquidators (actually there is just one liquidator by now) – they will get paid eventually, though not at the expense of the McLaughlins’ interest in their flat. Actually on reflection that can’t really be right: the liquidator always wins. Maybe you could say it was equal first.
  3. The McLaughlins – if there is anything left over after Turner Freeman is paid.
  4. The shareholders – they have to cough up. It is likely to take a while to get that because Justice Ward’s decision back in February 2010 still means that there is no recourse against any property, which usually speeds things up. As far as I can make out, if not enough shareholders can be forced to pay up on the levies then the liquidators will have to raise fresh levies against the pursuable shareholders to plug the gap.If there was a belief (and there were assertions to this effect by Garratt QC to the McLaughlins) that the McLaughlins would be left with an empty shell to recover any damages from, that seems to have backfired. The former shareholders are still shareholders (an argument they used to their advantage in 2011 when the McLaughlins had endeavoured to take Mr Garratt at his word and seize control of the company to stop it appealing the first judgment). While an administrator or liquidator is appointed, shares cannot change hands. And a liquidator or even an administrator appointed by a liquidator may [slightly weasel word in the judgment] still impose levies on them either under the share surrender agreement under which they got their strata title (but did not, as it turned out, effectively surrender their shares) or (if an administrator) the articles of the company (see [46] and [62]). Of course that depends on the liquidator or any administrator taking those steps, but there is a good chance they will do so in order to cover their own expenses.

It may not be clear to a lay reader, but the quote from Justice Black in June 2014 is a summary of an outrageous situation. There was no security given in 2010 because the company said that the shareholders would pay but now they aren’t paying!

Judge outraged at predicament of self-represented party is a difficult position.  It drew forth little homilies to Justice Black from counsel for Mr Garratt’s companies which were shareholders about his Honour’s duty to refrain from giving undue sympathy or, more importantly, assistance, to the McLaughlins as unrepresented litigants.

The first was in the October 2014 hearing when the question of whether the McLaughlins should be allowed to conduct the company’s claim against the shareholders arose. It was repeated in the main hearing in March 2015. Maybe ground was being laid for another appeal, if possible. It received the following response in Justice Black’s judgment of 1 May(emphasis added):

4. I should address two other matters by way of introduction. In her written submissions, Ms Nolan repeated submissions that she had previously made at the hearing of Mr and Mrs McLaughlin’s application for leave to bring derivative proceedings as to the circumstances in which the Court should intervene to “assist” Mr and Mrs McLaughlin, as unrepresented litigants, in the conduct of these proceedings. I have been conscious of the principles to which she refers and I adopt, without repeating, the comments that I made in respect of their relevance to this application in my judgment delivered on 2 December 2014 ([2014] NSWSC 1721). I drew Mr and Mrs McLaughlin’s attention to the manner in which affidavit evidence would need to be led and documents tendered and identified several issues as to which it would be helpful to have submissions from all parties in the course of Mrs McLaughlin’s oral submissions.

5. Second, Mrs McLaughlin’s submissions put Mr and Mrs McLaughlin’s position in respect of certain aspects of the conduct of the Company and its chairman with vigour and also made some criticisms of the liquidator’s approach to some issues. It was not entirely surprising that Mr and Mrs McLaughlin felt strongly as to those matters, in circumstances that the Company’s failure to meet a substantial judgment of this Court in their favour and its shareholders’ failure to meet the levies upon those shareholders had left Mr and Mrs McLaughlin facing bankruptcy proceedings brought against them by their former solicitors. An ordinary member of the community might well have regarded that position with concern. I do not accept the submission put by Ms Nolan that Mrs McLaughlin’s submissions in that respect were either scandalous or without evidentiary support, although it is has not been necessary for me to determine whether they should be accepted in order to decide this application and I do not express any view as to that matter. As I observed in the course of submissions, and as Mrs McLaughlin accepted, many of the matters to which she referred are more likely to arise as to the question of the basis of any order for costs and the persons against whom such an order would be made, and it may only be necessary to address them if agreement cannot be reached between the parties as to that question.

Final orders were handed down on 10 July 2015 after further argument on 23 June: In the matter of Dungowan Manly Pty Ltd (in liq) [2015] NSWSC 915. Nothing was conceded. For example, the liquidator had included interest when calculating the amount due under the levies.  Mr Garrett’s companies argued that they should not have to pay interest on the claims for the levies which the McLaughlins brought against them on behalf of the company because under the rules (regulations made for the conduct of proceedings) such claims are required to be included in the pleading and Mr and Mrs McLaughlin had neglected to include them.

One solution might have been to permit an amendment of the pleading. The McLaughlins would have needed to know how to make that application.

Justice Black took a different route. He noted that there were other sections of the relevant Act and the rules which would permit him to dispense with the requirement to comply with the relevant rule should the case so require, and that another rule expressly permits the court to give relief for matters which have not been sought in the pleading if the nature of the case so required. This was a discretion to be exercised in the interests of justice. He said (well, actually he wrote):

41. The factors relevant to the exercise of the discretion in this case include that, in the somewhat unusual circumstances of this case, Mr and Mrs McLaughlin were granted leave to represent the Company in bringing the claim against the Shareholders, where the Company’s shareholders’ failure to pay amounts levied by the administrators and subsequently the liquidator had left the liquidator unfunded to bring the claim, and prevented the Company paying amounts due to Mr and Mrs McLaughlin pursuant to the Court of Appeal’s judgment in their favour, creating difficulties for their funding of legal representation. It is not surprising that Mr and Mrs McLaughlin had a less than comprehensive understanding of the pleading requirements of the UCPR in respect of claims for interest. On the other hand, the principal of Loafer and Garmen is Mr Rodney Garrett QC, a Senior Counsel who practices in Victoria, and Loafer and Garmen were ably represented by Ms Nolan and by solicitors in these proceedings. Mr and Mrs Brown were also represented by Counsel and solicitors although their legal representatives were excused from attending the hearing at their request. As the liquidator points out, it cannot be sensibly suggested that Mr Garrett or the Shareholders’ legal representatives would have been unaware of the possibility that interest might be ordered against the Shareholders where they had the use of the unpaid levies for a substantial period or would have been unaware of the Court’s power to dispense with the UCPR in an appropriate case. I am comfortably satisfied that this is a proper case for the Court, by order, to dispense with the requirements of UCPR r 6.12 in respect of the pleading of a claim for interest by the Company and I do so.

This is still not over.  It is hard to see how the McLaughlins will ever get to keep their flat.  Because the company is in liquidation, the McLaughlins have to wait for the liquidator to collect the money and then make payments to them as creditors in the winding up. Turner Freeman will presumably first recover the money owed to it from sale of the flat – it does not need to wait until the McLaughlins receive any money from the company.

PS: by coincidence and google I saw that just on the day this post was published the liquidator has announced an intention to make a first distribution on 21 September 2015.

Postscript (2016)

The McLaughlins have received a little over $1 million of their admitted proof of debt of $1.332M but it looks as though they might only get at most another $50K or so.  It’s now down to liquidators scrapping over what’s left to pay their fees.   New liquidators have been appointed who achieved nothing but will be paid about $35K for that.  They do not intend to raise any further levies.  Everything seems to be spluttering to a halt.  See the decision of Justice Brereton: In the matter of Dungowan Manly Pty Limited [2016] NSWSC 1346.

Post postscript (2017)

The liquidators have sought directions from the court. This application is the subject of a December 2017 judgment by Justice Black: [2017] NSWSC 1771That judgment reveals, inter alia, that (on the liquidators’ calculation) the McLaughlins are still owed $324,108 in principal and interest to 17 May 2017 of $337,296, for a total of $661,404 to that date.  They have received the strata title to the flat but that flat has now been sold, in part to meet their legal costs. Mr Garratt is still persisting in his position that his companies (and other shareholders) should not have to pay anything so that the McLaughlins (as foreshadowed by him back in 2008 and spectacularly disregarded by Justice Ward in 2010) are simply wasting their time in trying to get money out of an assetless company.

In simplified terms, Justice Black has held that the company is not obliged to carry out the share surrender, so that the company still has shareholders and the liquidators can impose further levies on the shareholders to meet the company’s liabilities (and the liquidator’s costs). However (and there’s the rub) the liquidators need not do so unless they can obtain funding to take proceedings to enforce the levies, as well as an indemnity from the McLaughlins.

The McLaughlins as interested parties, represented themselves on the hearing of the application.  According to Black J, “Mr McLaughlin’s affidavit was of limited relevance to the matters raised in this application and expressed Mr McLaughlin’s outrage as to the steps taken by Mr Garratt in respect of these matters.”  The McLaughlins have previously been the recipients of judicial admonition on the subject of outrage – most notably from Justice Pembroke in 2011.  Justice Pembroke is a busy man – books to write, trees to love – one sometimes gets the impression that litigants are lucky that he has any time to spare them at all.  Justice Black (save by mild implication) spared the McLaughlins that, as well he might.

Keeping up

August 27, 2015

[This is a long gestated and more like still-born post which I should probably now retitle “Falling behind.”]

Blogs are a curious mix of narcissism and exhibitionism. Not, as if that were a saving virtue, that my own exhibitionism is actually read by very many people. This is one of those posts which is much for my own future reference as for anybody else’s edification.

I have been to hear Yuja Wang (should really according to Pinyin be Yujia) twice – once in recital at Angel Place for the SSO on Monday 13/7 and then on Saturday 18/7 playing the Brahms second concerto with the SSO. The SSO, conducted by Lionel Bringeur, also played a[n?] homage to Beethoven by the all-of-a-sudden-the-rage-in-Oz German composer Widmann which I liked a lot and Dvořák’s Symphony No 8. It is a very agreeable work. There is a sense in which Dvořák, I feel, is a bit like Schubert in making his own stylistic contribution but at the same time sitting very easily for the listener within what had come just before him- if you like, a received style.

I backed up to the SOH on Sunday 19/7 for the Australian Youth Orchestra conducted by Mark Elder playing Debussy’s La Mer and Mahler’s 6th symphony. Mahler better than Debussy which as predicted by Elder in pre-publicity, was harder for them to get a grasp on. (Well the point is partly that it shouldn’t be a grasp.)

Then on Monday 20/7 I went to hear the Omega Ensemble at Angel Place. Because I was given a ticket for that I feel I should give them a post to themselves. [27/8: still unwritten.]

On Thursday 23/7 I went to hear a jazz piano trio (different instrumentation to the classical type of piano trio) playing in the old Sydney City Mission in Glebe. It’s a great venue with a good piano which I hadn’t been to before. This was part of a regular series of jazz gigs which are run on a candle-lit BYO (food and drink) basis with a modest cover charge.  Looking at the venue hire it is obviously something the promoters must do for the love rather than the money. That was a bit of an impulse thing because CC, the pianist, is somebody I knew many years ago. Just a day before some kind of internet wandering alerted me to both his presence in Sydney (he has been away for many of the intervening years since our first acquaintance) and the gig.

Tonight [ie 24/7] to the SSO again (Trpceski Tchaick 1; Rach 1 – reviews are promising and I have good memories of Trpceski’s last visit) and then tomorrow for my second performance this time round of Don Carlos. [At least I managed to post on that.] Last time Trpceski was here he was greeted by a large Macedonian turnout. [Postscript: not quite so marked this time though still evident.]


August 19, 2015

In the Federal Court Justice Tracey has found against Kathy Jackson, ordering her to pay the Health Services Union approximately $1.4 million before any interest and costs.

Jackson went bankrupt and did not defend the matter once her application to have the proceedings stayed on the basis that union documents she claimed would exculpate her were lost was rejected by the court.  Nor did her bankruptcy trustee elect to defend the proceedings.

I have written before about what happens when a defendant throws in the towel and the court only hears from one side.  The result was pretty much a foregone conclusion subject to the union making good its claim as a matter of proof.  As it happened, the union did not quite make good its claim in full.

Age “Investigative Reporter” Ben Schneiders has published a piece, described as “Analysis” under the headline Kathy Jackson exposed as a thief, liar and hypocrite. Journalists are not always responsible for headlines but in this case that is pretty much the substance of the opening paragraph.

Schneiders goes on to say (emphasis added and with a few snips):

The judgment by Richard Tracey is largely symbolic as Jackson, in her latest move to avoid justice, declared bankruptcy just before her civil trial was to begin in July…

Jackson may not have to pay back the money she has stolen but it is far from over for her.

A joint Victoria and Federal Police taskforce, connected to the royal commission into union corruption, is probing Jackson for widespread fraud and theft. They will be watching Justice Tracey’s decision closely.

The taskforce’s inquiries have been extensive and it has been keenly interested in a $250,000 payment from the Peter MacCallum cancer hospital to Jackson’s old union in 2003.

They want to know if that payment was a bribe to help settle a back-dispute and what she did with all the money from the hospital.


While civil trials have a lower burden of proof than criminal inquiries, there has to be a real chance now that one day Jackson will join her old HSU comrade Michael Williamson behind bars.

I’m not particularly a fan of Ms Jackson, especially after her “charity shag” comment at the time of her unsuccessful attempt to prevent long-ago-fling Mark Irving from cross-examining her at the trade union royal commission, but nor does this article impress me particularly as an example of either analysis or investigative journalism.

Whether or not police have been or “will be” watching Justice Tracey’s judgment closely (is this a fact or journalistic speculation?), I can’t see how the judgment, rather than any evidence which the HSU has assembled and now saved the police from assembling for themselves if they had not done so already, will make much if any difference to the prospects of prosecuting Ms Jackson.

Journalism like this, on the other hand, could be distinctly unhelpful.

My cursory reading of the judgment reveals that the cause of action on which the union succeeded was not one which depended on Ms Jackson’s subjective beliefs or honesty.  As Ms Jackson neither defended the action (what seems to have occurred is a half-way house where the judge dealt with her pleaded defence even though she did not participate in the trial) nor gave evidence (she presumably served and maybe even filed some evidence but there was no one there to adduce it on her behalf and she wasn’t there to be cross-examined on it), I would have thought this makes “thief” “stolen” and “liar” problematic.

In any event a large part of the award against her was not for money she took.  $411,635.86 of the compensation Ms Jackson has been ordered to repay has been in respect of loss to the union as a result of a deal  with one Robert Elliott that Ms Jackson was held to have improperly authorised together with  the since-gaoled Mr Williamson to secure Elliott’s co-operation in the merger of three unions in 2010 (see [161] to [194] of the judgment: Elliott said he would block the merger unless he was looked after and so he was.  I don’t think this can really be described as money stolen by Ms Jackson.  Some of it includes money that the union’s predecessor paid to Mr Elliott to settle a claim brought by him for performance of the agreement after the union stopped paying him under it.

You have to be careful before saying that going bankrupt is a “move to avoid justice.”

It is true that by going bankrupt and not participating in the trial Ms Jackson did sidestep any attempt to justify the large amounts of money she received or spent or to be cross-examined on her justifications for her actions.  That could be strategically prudent given that any damaging cross-examination could be used against her if ever there were a subsequent criminal trial.

It is obviously most unlikely that Jackson will ever pay any amount ordered by the court or that even her trustee will pay anything like the full amount. Bankruptcy is part of the law so I don’t see that you can call going bankrupt avoiding justice.

It is reasonably clear that Jackson has for some time been financially supported by her de facto partner, Michael Lawler and it seems likely that any recovery from her estate is going to depend on whether the support Lawler has provided and their financial affairs justified various transactions entered before Jackson declared bankruptcy or his claims to be a participating creditor in her bankruptcy. Lawler, Deputy President of the Fair Work Commission, has himself been somewhat besieged by The Australian (though not, as far as I can see, the non-Murdoch press). This appears to be on account of his involvement with Jackson. Other matters have been brought into the mix to do with Lawler’s involvement in the affairs of David Rofe QC, a former colleague of Lawler’s who, unmarried and childless, has entered into a sad decline complicated by his considerable wealth and an unusual relationship with a considerably younger man (reportedly ensconced with his partner and dachsunds in a property belonging to Mr Rofe). Kathy Jackson is involved in that too as a reported beneficiary under a will made by Mr Rofe but it all seems irrelevant to the main story.

As for “a real chance” that a person will end up “behind bars,” even if “real chance” is sufficiently weaselish to skirt defamation risks, what kind of analysis is that?  Close to clickbait, really -and I’ve taken it!

If there are lost documents which could be relevant to Ms Jackson’s defence, that could well be relevant all over again to any application for a stay of any prosecution, as well as any defence based on reasonable doubt.

Figaro 2015

August 13, 2015

On Saturday to OA’s Marriage of Figaro.  D is away and I took K2, daughter of my friend Es.  K2 is spending a couple of months of her school holidays back home in Dusseldorf going to school in Mackay.  She could have taken more time off but she didn’t want to have to catch up on missed German schoolwork.  They take this sort of stuff very seriously there.

David McVicar’s production is handsome and lavishly costumed. A retinue of (mostly non-singing) servants emphasise the count’s status and power. The comedy tends towards a harder edge – I didn’t feel the conclusion to be as sweet as it sometimes is and Cherubino and the countess are already eying each other off. The last act was set in something more like a back terrace than the garden with pine trees referred to in the letter duet.

In line with the dramatic approach, musical tempi seem to be either very fast or rather slow, with dramatic pauses and sometimes even rather wayward moments. Not quite to Mackerras levels, there is a reasonable amount of da capo ornamentation, though not yet by everybody. There was some adventurous continuo realisation.

Figaro is probably still my favourite opera.  I first saw it with my friend P when I was about 19.  Isobel Buchanan was a memorable countess.  On Saturday P’s son, T, aged about 19, was there for his first performance.

There are two fine visiting singers – Andrei Bondarenko as the Count and Paolo Bordogna as Figaro. For me, though, it was Taryn Fiebig’s night as Susanna.  That’s probably partly the way the opera is written.  I didn’t think that Nicole Car as the countess was quite up to the standard of these other three.

The thing about Figaro [Marriage of] is that, a bit like Shakespeare, it can withstand many variations of approach and interpretation.  That’s the sign of a masterwork.  I could nit pick or disagree with some aspects of this production but it would be a mistake to suppose that there is just one right way to do it.

I’m going again to the last performance of this run and am definitely looking forward to it.

K2 was only in Sydney for a few days and had been determined not to waste any time.  She knew of my habit of taking a nap before going to the opera and let it be known early on that she did not wish to waste time doing this. On the day in question, in between when we parted at Tamarama at about 2pm (when I headed home for my nap) she had walked back to Bondi, taken the 380 to Watson’s Bay, taken the ferry to Circular Quay and another ferry to Darling Harbour, and bought some Ugg boots (much prized in Germany) at what she assured me was a very good price before meeting me mid-town a bit after 6pm before heading to the opera house. All of that is a credit to her stamina and adventurous spirit (she has only just since turned 15) as well as what you can now do in a foreign city with the help of a smart phone, but she did wilt a bit in the first half of the opera.  I bought her a strong coffee at interval.

The next day, in the car on the way to the airport after yum cha at Cabramatta, K2 was scarcely able to keep her eyes open.  She told me that she had been unable to sleep the night before until after 2 am.  Was it the coffee or the excitement?  I suppose we shall never know.

Opera Australia Sydney 2016

August 12, 2015

Opera Australia has announced its 2016 season for Sydney as follows:

Mainstage productions

Summer season

1.Magic Flute – shortened for children.
2.La Bohème

These revivals look like becoming annual summer fixtures.

3. The Pearlfishers (new production, to be directed by Michael Gow) – 2 casts, 17 performances.

4. The Barber of Seville – revival of now venerable Yeargan/Moshinsky production – personally I would prefer the intervening Gaudi-esque production from a few years ago which disappeared without a trace – I’m not quite sure why.

5. Luisa Miller – new (for Sydney) production, brought in from Lausanne. Welcome rarety for the cognoscenti, continuing the Verdi-Schiller streak.

Winter season

6.  Carmen – new production, 18 performances scheduled. That makes a total of 35 performances of works by Bizet in this season. At least OA is giving Puccini a relative spell. Imported rising stars for Don Jose and Carmen for front end of run.

7. The love for three oranges – 8 performances – revival of rarety. Distinctly in-house cast though I suppose you can no longer count Kanen Breen in that category.

8. Cosi fan tutte – final instalment of McVicar/Mozart-da Ponte trilogy; 8 performances. Charles Castronovo brought in as big-name tenor attraction.

9. Simon Boccanegra – 9 performances; Verdi rarety (rare for Sydney at least).

Non-opera/mainstage performances

10. The Rabbits – at the sometime Sydney Theatre – a run in summer of this Australian work, new to Sydney, aimed (I think) primarily at children. This has had an enthusiastic reception though I suspect an element of local boosterism.

11. The Eighth Wonder re-titled as Sydney Opera House – The Opera, possibly reworked and remounted outside in the forecourt of of the Opera House. 5 performances. Good luck to Alan John and Dennis Watkins, but this really looks like one for the tourists.

11. My Fair Lady – to be directed by Dame (swoon at the title) Julie Andrews in a 60th anniversary revival. Otherwise not even cast yet. Clive Paget in Limelight in a generally oleaginous write-up of the season (or do I just mean gushing? definitely he’ll be asked back) has said that the announcement of this has been greeted with squeals of delight. Maybe by some. Not by me. Can it be that CP has not been here long enough to remember that OA put MFL on as recently as 2008 touring (from memory) into 2009? Starts on 30 August and runs for 79 performances by my count in Sydney alone. At least it is a musical which can employ some of the opera orchestra – not sure about the chorus.

12. The Handa opera on the harbour is Turandot.

Marketing material emphasises that you can spend as little as $196 subscribing to as few as three operas and then get in for the subscribers’ booking period for next year’s Melbourne Ring.

My view

(So far as not already expressed above)

Now that Opera Australia bookends its year with summer populist revivals and a musical starting at the end of August, the remaining mainstage mix – 3 in summer and 4 in winter, is probably as good as can be expected.

Terracini has thrown the cognoscenti a bone with the Verdi relative obscurities; the MacVicar Cosi bodes well judging from the cycle so far; the Prokofiev is welcome though I would have preferred something more meaty from either Czech or Russian repertoire; new productions don’t really justify the excess of Bizet; the short season means there is no room for German repertoire (ie even Beethoven, or Weber, Wagner, Strauss, Berg, to confine the list to composers in OA’s repertoire – the butchered Magic Flute doesn’t count).

I am indifferent to the choice of musical so it matters not to me that MFL seems such an unadventurous selection. If we want Julie Andrews why not just have Sound of Music sing-alongs at the State Theatre?

I doubt if I will sign up for the Melbourne Ring. OA’s internationally hiked prices and booking shenanigans and Australian accommodation prices combine to make it a relatively unattractive proposition. It would probably be cheaper (or only marginally more expensive) and definitely more fun to fly to Berlin next June or in April-ish 2017.

Don Carlos 3

August 3, 2015

To Don Carlos for the third time on Saturday night.

The house was pretty well full – a marked improvement on my first two attendances. It would be good to think that word can actually get around. I met someone who enthusiastically told me he was there for his fifth time.

Early in the opera, Carlos and his stepmother, Elisabetta, meet alone for the first time since Elisabetta, whom Carlos was originally destined to marry, instead became the Philip II’s queen. Carlos declares his love for Elisabetta and finally succeeds in goading Elisabetta into expressing her true feelings for him which up to then she has held back on out of loyalty to her marital duty. She blurts out: “Kill your father!” I don’t think that’s actually in the play (in the play E says that Carlos can sleep with her once his father is dead) and I don’t think she entirely means in the opera that he should actually do so. 

In both, Carlos says that in that case he is accursed/in a pretty pickle. In the opera he then leaves Elisabetta alone on stage for one of those scene-concluding Verdian soprano swoops from high to lowish:

Don Carlos score extract

This was a memorable moment.

Not least because of a disagreement in the pit about the timing of the final chord.

Flights of fancy

August 3, 2015

1. Alan Jones on a recent Q&A:

ALAN JONES: The GST is, in many ways, a very legitimate tax, in the sense that you can legitimately avoid it. So if I want to drive a Mercedes Benz and you want to drive a Holden, your will pay less tax than I do. If I want to eat at home and you want to eat out, you’ll pay more tax than I do. If my wife doesn’t want to wear pearls but your wife does, I will pay less tax.

And there was more:

TONY JONES: Let’s hear Mark Butler enter the debate because, as far as I can see, the Federal Labor Party is ruling a line through the GST forever and ever.

MARK BUTLER: Well, we’ve never been a fan of the GST because, by its nature, it is regressive?

TONY JONES: Except for the one that you kept and didn’t roll back as you promised to do.

MARK BUTLER: It is regressive. We’ve never been a fan of the GST because everyone pays the same GST on particular services and goods that are covered. It is regressive. We are a party that favours progressive taxation. Now, let’s be clear about what’s happened here. Tony Abbott and Joe Hockey cut $80 billion of spending over ten years in last year’s budget to schools and hospitals so that from 2018…

ALAN JONES: That money was never there. That money was never there, Mark.

MARK BUTLER: So that from 2018, school…

ALAN JONES: The money was never there.

MARK BUTLER: Well, you had a go, Alan. 2018, schools will be indexed by inflation only from the Commonwealth and from 2017 hospitals will be indexed only by inflation and population growth.

TONY JONES: Is it a fair point though that…

MARK BUTLER: Utterly unsustainable.

TONY JONES: Sorry, can I just – if you don’t mind another Jones interruption.

MARK BUTLER: What is it with Joneses?

TONY JONES: I know. I’m sorry. But isn’t it a fair point…

ALAN JONES: He’s my brother! No one knows that but he’s my brother.

MARK BUTLER: From a different mother.

ALAN JONES: He thinks I’m his father.

TONY JONES: I seriously don’t.

MARK BUTLER: Aberrant uncle, I think, maybe.

TONY JONES: Really I did figure that one out.

2: Charles Waterstreet

No transcript for this. I think it was the 7.30 report on the occasion of Waterstreet’s former client, Nigel Milsom, winning the Archibald Prize for his picture of him. Waterstreet lets slip in passing that he is about to appear in the trial of Glen McNamara and Roger Rogerson for the murder of Jamie Gao. Waterstreet has appeared since then (and had already appeared) for McNamara. In the Milsom story he quips to roughly the following effect: supposing a film [or TV program] is to be made of the trial, which of Rogerson or Waterstreet will be played by Richard Roxburgh?

It’s a very Sydney joke. Judging from current or relatively recent images of all three, unless the film is made a long time into the future, Roxburgh is unlikely to be cast as either.

On day 2 of the trial, the jury was discharged. The trial will have to start again in a couple of weeks. We can’t be told why. I hope it wasn’t because of the Richard Roxburgh joke.

PS 14 August

But it was something to do with Mr Waterstreet (a picture and a caption on Instagram, now both, it seems, suppressed) which led to the resumed trial being put back from August to January next year, Mr Waterstreet withdrawing from the case and being referred to the Prothonotary for consideration of possible contempt charges.  It’s perilous being a celebrity criminal lawyer.