Archive for April, 2018

Internecine shenanigans

April 30, 2018

When judgments are published on the internet, they are published with a section, supposedly for indexing purposes, called “catchwords.”  The cognoscenti have been having a bit of a chuckle over the catchwords to Gladys Hargraves v Susan Eveston [2018] NSWSC 505, a judgment by Justice Hamill:

CIVIL LAW – unpleasant litigation – contract dispute – loans from mother to daughter – internecine family dispute – where loans formalised by deeds – whether terms of deeds varied by subsequent conversation between parties – dispute as to whether conversation occurred – where neither party presents as a witness of credit – financial shenanigans – palpable personal animosity – dark looks across the public gallery – tsk-tsking – objectively established chronology – not satisfied conversation occurred.

The case was about a loan for $1.7 million from Gladys to Susan.  There was a written agreement documenting this loan. Susan did not dispute that she had to repay it, but claimed that as a result of a conversation with her mother in September 2016 she did not have to repay it until another family dispute (in which she and her husband claimed to be owed a similar amount by a family company) was resolved.   This was the conversation  which Justice Hamill was not satisfied occurred – basically because the first mention of it by Susan was very late in the piece.

There was some colourful detail because Susan was forced to admit in cross examination that she had stolen some money from a family company (she said that she had worked in family companies for some years but was not paid at a level commensurate with her responsibilies).  Maybe this was the stuff which elicited the “tsk-tsking.”  Otherwise  it wasn’t really a very complicated or legally  interesting case, apart perhaps for the considerable wealth of the family involved.

Meanwhile, a more humble family has been slugging out before Justice Robb the question of who owned 14 Prout Street Cabramatta. His judgment is Lay v Pech [2018] NSWSC 460.

Maybe there was less eye-rolling and tsk-tsking because, as his Honour observed, the parties were all of Cambodian background.  This was relevant on at least one parties’ case because of the obligation of a son to look after his mother according to traditional Cambodian values.

Ms Lay sued her son, Poly Pech, for orders that she was the beneficial owner of a house which was legally in Pech’s name.  The legal owner of the property at the time of its purchase in 2010 was  Mr Tai, her then-de facto, who joined Ms Lay as plaintiff.

Ms Lay and Mr Tai said that Mr Tai had bought the property in 2010 because Ms Lay lacked an income which would enable her to obtain a mortgage.  Later, in 2015, it was transferred to Mr Pech.  Ms Lay and Mr Tai said that this was part of a de facto property settlement between them, but that the intent of the transfer was that Ms Lay become the beneficial owner and not Mr Pech.

Mr Pech said that the property had always been his, and that it had first been purchased in Mr Tai’s name because Mr Pech had a bad credit rating, that Pech had provided the initial deposit, and that payments made by his mother or Mr Tai were explicable as rent paid to him.  The transfer to Mr Pech in 2015 was not part of a de facto settlement between his mother and Mr Tai, but rather because he was by then in a position to obtain a mortgage.

Mr Pech faced at least two difficulties.  The first was that he said he was earning about $50,000 a year at the time the property was purchased, whereas for a number of years his PAYG summaries and tax returns only referred to an income of $20,000.  This, Justice Robb said, did not reflect well on his credit (ie, his believability).  It probably also means that he was substantially paid in cash.  The second (and this is my interpretation) was that even on Mr Pech’s case,  mortgage payments made by Mr Pech were made by him to his mother who was then the person responsible for paying these into the bank which turned up as amounts deposited in NSW (for much of the time Mr Tai was away working in Queensland).  This meant that when Justice Robb went to analyse the banking records, he only gave Mr Pech credit for what was actually banked by Ms Lay.  Is it possible that Mr Pech paid his mother more than she banked?  Justice Robb does not appear to allow for that possibility. Maybe she wasn’t asked that.

That may be because his Honour had other reasons for favouring Ms Lay’s and Mr Tai’s account, including patterns of payment and expenditure on renovations which Robb J found more consistent with Ms Lai being the intended beneficial owner, and what his honour considered to be exaggerations in Pech’s account of his involvement in undertaking renovation work.

But Ms Lay herself also had a bit of a problem, which is that (as far as I can amount) she had been receiving Centrelink payments (as an invalid pensioner) on the basis that she was a single person for the period of her de facto relationship with Mr Tai, when every indication is that his income would, if the truth were know to Centrelink, wholly or very substantially preclude her receiving such payments.  She may also have been receiving rental assistance in relation to her occupation of a property which she now says she was the true owner of all along!  (Correction: I initially wrote “all along” but actually that was an issue which she and Robb J both danced around and away from probably because of this.  But it still doesn’t seem as though she was ever actually paying rent.)

Ms Lay’s status as a Centrelink recipient is probably why it appears to have been common ground that she was never the source of monies paid off on the mortgage, on the assumption that her living expenses fully accounted for her Centrelink income.  Indeed it appears that Mr Tai subsidised her living costs.

It’s obviously a murky tale.  I wasn’t there at the trial but I get the distinct feeling that the entire story has not been told on either side.

Pech made a last-ditch submission that if the judge found for Ms Lay, he should still decline to make an order in her favour because of the illegality of her conduct.  Justice Robb rejected this argument, on the basis that the illegality was not sufficiently bound up with the reason for the equitable ownership that she now claimed.

Further, as Robb J put it (at [63]):

Mr Pech went so far as to submit that, if his defence of illegality was not accepted by the Court, the Court should not grant the relief sought by the plaintiffs without imposing a condition that Ms Lay first make a disclosure to Centrelink, and then pay whatever amounts are required by Centrelink to remedy the consequences of her unlawful conduct. While that may be a proper course for the Court to take in an appropriate case, it may be observed that this was a very aggressive submission for Mr Pech to make against his mother.

I’m a bit surprised that Robb J found “aggression” in the context of such litigation, where, incidentally, Ms Lay’s lawyer had effectively pinged Pech for tax evasion, to be at all remarkable.  I expect there was a fair bit of antagonism on both sides.  Maybe (too many “maybe”s in this post, I know) what his Honour meant was that it was a vindictive submission: making his mother pay Centrelink back would not advance Pech’s own position in the slightest.

Anyway, with a lot of giving Ms Lay the benefit of the doubt and declining to draw in my opinion almost inescapable conclusions along with a lot of dodging around what the position was for the almost 5 years up to the date of the transfer to Mr Pech when Ms Lay was almost certainly receiving rent assistance in relation to claimed rent paid to Mr Tai, his Honour declined to impose such a condition.  He didn’t even refer the papers.

 

 

 

 

 

Grinding slow

April 24, 2018

News is in this morning (well, yesterday by now) of the conviction of Ron Medich for the murder of Michael McGurk.  McGurk was shot in December 2009 outside his home in Cremorne.

How could the wheels of justice grind so slow?

I asked my neighbour in chambers, who is more au fait with the criminal law. His explanation was the layers of hitmen, getaway driver and fixer that had to be worked through first, sentenced and turned prosecution witness. (It was never the crown case that Medich fired the gun himself.)

Another which occurred to me is the capacity of a well-resourced defendant to delay things by prolonging the committal process.  It is true, as my neighbour pointed out, that where witnesses (as here) are informants that is a recognized category where you will be entitled to have a crack at them in a committal hearing.

Medich’s committal hearing was way back in 2013.  That was a mere three years or so after Medich was arrested, so hardly accounts for the delay.

No fewer than 18 22 36 judgments (the last one is No 2324 26 42) by Justice Bellew relating to the trials (over which he presided) and proceedings leading up to them have now been published .

The first trial was initially set down for 25 August 2014.

Medich applied  for the trial to be permanently stayed.

Bellew J reserved judgment and vacated the  trial date – R v Medich (No 1).

He vacated the trial date because he anticipated an appeal either way he decided the application and there would not be time for that before the scheduled start date.  His judgment includes this (retrospectively) delicious passage:

I also recognise the fact that the deceased’s family would no doubt want a trial to take place at the earliest possible time so as to have some closure of the matter. I also recognise that the accused wishes to have his trial at the earliest possible time. Notwithstanding all of those matters, the practicalities of the situation are that there is no alternative other than to vacate the trial date.

In September 2014 Medich’s application for a stay was dismissed (R v Medich No 2).  (So it turned out vacating the trial date must have taken the heat off Justice Bellew to deliver a decision as well.)

So far no judgments on any appeal against that by Medich have been published.

UPDATE, 23 May 2018:

A judgment has now been published online: MEDICH v R [2015] NSWCCA 281. This was heard in August 2015 with the appeal dismissed on 13 November 2015.

In November 2015  Medich’s trial was listed to commence on 11 July 2016, with an estimate of 3 to 4 months.

On the morning the trial was due to commence, the prosecution provided two lever-arched folders of documents to Medich’s legal team.  The jury, which had already been empanelled, was discharged and the trial date vacated.   (R v Medich (no 6))

The first trial finally ran from January to April 2017.

Yesterday’s conviction was after a second  trial which started at the beginning of this year.

For the record

April 22, 2018

Just a short post, cut down from a longer one which was getting boring.

On Friday 13 to the SOH for SSO conducted by M  Suzuki performing Haydn’s Symphony 95 and Beethoven’s Mass in C.

I enjoyed the Haydn and it’s hard to believe that the SSO has only played it once bfore, in 1969 or so.  Well, there are over 100 Haydn symphonies (more than 30 of them even have nicknames) and I can see why it might have slipped down the list.  Suzuki drew a lean early-instrumenty sound from the orchestra.

I wish I could the same about the Beethoven Mass in C (apart from the lean sound, which continued) but despite having enjoyed it when I was once in it, I’m forced to the conclusion that it’s a piano duet of Beethoven masses – more fun to be in than to be in the audience for.  I also find myself impatient in my (approaching) old age with the Philharmonia’s big choir. Actually, when they sing loudly they’re fine but when they get softer there is a lack of focus.

Probably the two most memorable things about it were that bass soloist (in his case a baritone) Christian Immler appeared to be wearing an a-la-Beethoven stock, and the clarinet playing of Ben Mellefont, a bit of an expat wunderkind currently playing with the Royal Liverpool Philharmonic.  Could he be another tryout for the currently vacant principal job?

On Saturday with P to the Australia Ensemble for a concert entitled “French Connections.”

The program was:

Pierre BOULEZ | Dérive (1984)

Claude DEBUSSY | Sonata for flute, viola and harp (1915)

Jean FRANÇAIX | Clarinet Quintet (1977)

Gabriel FAURÉ | Piano Quartet no. 2 Op. 45 (1886)

Artistic director Paul Stanhope conducted the Boulez.  At the start he gave  us a little talk on what some of these “French connections”  were, illustrated by some musical examples played by those on stage.  I sensed some impatience from at least one of the musicians about this, though I may have been projecting.  Just get on with it!

I was just really getting into the Derive when it finished. Apart from the music, it had delicious sounds from the marimba.

In his talk, Paul S described the Françaix as inspired by “cafe music.”  I wish he hadn’t said that, because then it was filed away in that box from which it only with difficulty escaped. I enjoyed the slow movement the most, as is my wont, but by the end I found myself thinking of the clarinet part “Who does he think he is?  Till Eulenspiegel?”

I loved the Debussy.  It’s a cliche but towards the end  I really was feeling zoned out in a beautiful dream.  The harp helped.  I’m a sucker for it.  I guess, as with the marimba, too much delicious sound could cloy, but we never got to that.

Second half was the Faure.  (You can see I’m cutting down on those acutes and graves.)  Oh my god are there a lot of notes in the piano part. Just sometimes I thought there could be just a few less to give the piano part a chance to stand back and join in the whole.  The mix of Germanic feel and modal harmonies the distinctive thing about this work.  At the risk of getting stuck in a groove here…well any regular reader of this blog can guess which movement I enjoyed the most but the whole thing was pretty good.

Someone who comes to the AE is on some kind of a ventilator which occasionally lets out a bit of a wheeze.  I am a bit intolerant of extraneous noise at concerts but I can handle this – that could well be me one day and you can hardly begrudge someone breathing.

What I find harder to deal with is hearing-aid feedback.  It’s so insidious and of course pitched, though not at a pitch to which I could assign a note value.  Presumably those whose aids cause the problem cannot hear it.  Their neighbours should tell them but they may well have the same problem, especially at higher pitches.  And what can you say?  If the concert organizers make a “turn it down!” announcement then the risk is the people who had not caused a problem will now be unable to hear the music as they conscientiously adjust their hearing aids for the sake of a problem one or two. That’s so unfair. I do recall a successful announcement on this topic at a previous Australia Ensemble concert.  Successful for me, that is.  Maybe not for those who never needed to turn their aids down in the first place.

Apart from that, it was a particularly enjoyable concert.

Shocking

April 20, 2018

You can view the footage here. (update: or here) It’s a news story on Channel 9.

Police have boarded a bus to arrest an intoxicated and unruly passenger for assaulting other passengers.  He is seated and refuses to get off the bus and lashes out with his hand when a police officer reaches forward to remove him.

Then the officer (a sergeant, no less) lets fly with his taser before a bunch of police pile onto the man to subdue him.  The sergeant continues to use the taser.

Why?  The man is sitting down.  He’s not a danger to anyone.  His hitting out with his arm has been purely defensive, albeit an unlawful response to an arresting officer.  He can be removed eventually.  You wouldn’t shoot him in such a situation (I hope) so why would you taser him?

To me this is totally inappropriate use of a taser – as with much police violence, it is to punish the resister and by terror establish the police’s power  rather than necessary for his apprehension or to protect others.

I know policing is a tough job but this footage raises serious doubts for me as to whether  Sergeant Latham from Surrey Hills police station is up to it.

All the same, I’m not so surprised by his actions.  Tasers are routinely deployed to subdue people and truculent intoxicated people are probably especially likely to receive such treatment.

More  shocking to me is the Channel 9 voice over: (on the original story, now removed from the link though the raw mobie phone footage by a passenger on the bus  survives with a channel 9 watermark)(original story still here)

“the officer is forced to use his taser.”

Really?

 

 

 

Hopeless

April 18, 2018

ABC “Classic” FM continues to disappoint.

The weekend before last, when I was in Canberra, there were numerous broadcast interruptions.  At least there was a kind of automated announcement made about these.

Much worse was to come on Sunday night when I was driving back to Sydney and, from Sutton Forest on, making the journey bearable with the (delayed) live broadcast from the Met of Strauss’s Elektra.

About an hour later just before the beginning of the M7 and M5 (I had stopped briefly at Pheasant’s Nest if you are being finickity about times) the music stopped and was replaced by a terrible hissing sound.  It wasn’t just one station – the noise was on all the alternative stations/frequencies for ABC “Classic” FM I could find.

Grimly determined to wait this out, I continued listening until I got home, a bit over 20 minutes later.  Still the terrible noise – though I turned the volume down in order to bear it.

Was nobody at the ABC paying attention?  Does anyone listen to the stuff they broadcast to check for quality?

I did not turn on the radio when I went into my house, so I didn’t know how long this state of affairs continued.

But now, even more shockingly, I do know, because the hissing, in all its glories, is retained in the “listen again” feed on the website (this link will presumably go dead in a few weeks).  Here is my rough analysis according to time elapsed from the beginning of the program:

  • 00:00:00 – program begins
  • 1:09:48   hissing – towards the end some more radiophonic noises as though somebody might be trying to do something about it
  • 1:54:54   silence
  • 2:09:09   hissing resumes
  • 2:10:00   silence
  • 2:11:35  music resumes.

Unbelievable.  And no sign, as far as I can make out, of any acknowledgement of the slip up.  And with the preservation of the fault on the “listen again” facility, so much for the bruited redirection of efforts to an online audience.

I have belatedly submitted a “complaint”/”enquiry” to the ABC and shall say here if I ever receive any response to it.

Update

Thank you for your message and apologies for the interruptions to broadcast which you encountered. The technical issues behind these disruptions have been investigated and measures put in place to avoid the situation of them occurring again. We hope you will continue to enjoy listening.

Not what I would call an informative or even individuated response.  Do the measures include any actual person in real time listening or monitoring what is going on?

The “listen again” link has now (I’d say prematurely) been pulled.

 

 

 

Ashfield Pool

April 17, 2018

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Ashfield Pool was opened by the then Premier of NSW in 1963.

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That was the ceremonial opening.  It seems actual swimming started the November before that.

The pool has been looking pretty tatty for a while – areas of tiles have been coming off the side of the pool, other bits of the walls have been taped off and most recently even the jury-rig metal stairway on one end of the shallow end had to be cordoned off as it threatened to slip away from the real stairs if you stepped on it:

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Physical deterioration is the least of the threats facing public pools. Cash-strapped councils are always looking for an excuse to close them, and the public land on which pools stand is always vulnerable to land grabs by the more muscular and well organized, as at Parramatta where an expanded stadium pushed a pool aside last year.

Now formally known as an “aquatic centre” the pool is closing for renovations, scheduled to reopen in time for the 2019/20 summer.  These have been a long time coming and were a close-fought thing.  The then Ashfield Council had to go to IPart to have the necessary rates increase specially approved, and even then the job stalled when they couldn’t get anyone to agree to do the job for their price estimate.  In the end the merged Inner West council has gone ahead with an even more expensive proposal.

When the centre reopens, it will be reconfigured. A gym will be included.

I’m not so keen on the addition of a gym. Why can’t we just have a pool?  In my experience it almost always leads to an upping of the admission price.  I suppose I should be grateful that, in Sydney at least, the tide seems to be turning against closing outdoor pools and replacing them with indoor pools only.  Now, for my taste, we just need to lower the temperature to which pools are heated, especially in summer, when it can be hard to get a refreshing swim except in the sea.

My own time at Ashfield Pool is mostly since I returned to Sydney in 2002 after two years in Perth.  Before that I had lived opposite Petersham Pool which, when open (it was not and still is not a year-round pool), would have been my pool of first resort.  At some stage in the 1990s, Ashfield was heated and open over winter, and that’s probably when it first came onto my radar.  Since 2002 however I have often had recourse to it, especially on weekend afternoons when the sea was too distant or too cold, and much more after I moved to Ashfield in 2012 within easy walking distance  and qualified for a multiple-visit pass.

I went on Saturday for my last paid visit. On Sunday the pool was open for free and I went again. Ashfield Pool is a low-key kind of place – that’s its charm – so there was no big bash.  There were still plenty of people taking a sentimental farewell.  Phones make the pictorial aspect of that much more accessible.

I still have one visit left on my multiple visit card. I could fill in a form to have this refunded or transferred to Leichhardt Aquatic Centre. Neither seems worth the trouble. Call me optimistic. I shall wait until the pool re-opens.

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Here’s Runnicles (x2)

April 8, 2018

Emperor flute

Last two weekends (not including this weekend just passed) to two SSO concerts conducted by Donald Runnicles.

The first featured bleeding chunks of the Ring Cycle in the second half with Nelson Freire playing Beethoven’s ‘Emperor’ concerto in the first half.  The hall was packed.

Nelson Freire makes a stately entrance onto the stage which makes him look older than he in fact is, but once he settles down he just gets on with it.  You can feel his experience although of course his talent is more than that.  I enjoyed his playing.

I was sitting a bit closer to the front than usual which meant I didn’t have a good view of the woodwind – obscured over the lip of the stage.  Then towards the end of the second movement of the concerto my attention was caught by the flute.  That’s the bit above, and especially the bit from letter Q.

Hang on! I thought.  That’s not one of our normal flautists! It’s someone different.  Maybe it’s even a man!

I don’t know why I thought the second thought, because I’m not sure that it is possible (and it seems most unlikely that it should be possible) to make a gender-distinction between flautists.  Probably what I was really noticing was a flautist who was not part of the local school which, as it happens, in Sydney orchestras is pretty uniformly female.  (There are a couple of men who sometimes get a gig with the AOBO though normally even then more likely on piccolo than on flute.)  It was Joshua Batty, previously (as my researches established)  principal flute at the Irish RTE orchestra and currently a tutor at the Royal Northern College of Music in Manchester.  Could he be trying out for the currently vacant principal flute spot?  Will the gender bar be broken?

Freire played an arrangement of Gluck’s Dance of the Blessed Spirits for his encore.

Apart from the possible inevitable  Ride of the Valkyries from Die Walkuere, the Ring Cycle extracts favoured the Siegfried story.  This is fair enough given that Siegfrieds Tod (eventually Götterdämmerung) was Wagner’s starting point for the whole shebang.  There was some exciting playing but I fear that I have heard just enough Wagner operas to be spoilt for extracts – mainly because they can never be enough Wagner.  Still, a good time was had by all.

The first half of the second concert was to have been Anne Sofie von Otter singing Schubert songs in orchestral arrangements. I guess we’ll never hear what this sounds like, which is a pity but insignificantly so in the tragic circumstances.  Stuart Skelton made a welcome return to the Sydney stage for a bracket of rather gloomy songs. The houselights were atmospherically dimmed which conveyed the right mood though in the circumstances Runnicles, who accompanied, could have tipped us off while he gave us quite a lengthy chat about the Mahler so we could have conned the texts a bit more while there was still light.  All the same it was moving and the audience was spell bound.

I was a bit tired and not quite sure how I would manage for the Mahler “10.”  I don’t know it at all well and  I can’t even recall anything of the SSO’s 2010 performance other than that I think I went to  it (Ashkenazy chose a different version of the completion).  Coming to it “cold” I found it  compelling if a bit drier than more familiar Mahler.  Was this the new path Mahler was taking or just the consequence of the completion by another hand?

Joshua Batty had another (more extended)  moment in the sun in the last movement.