Archive for the ‘Australia’ Category

Nasty

August 7, 2017

Last Friday I drove out to Concord Hospital to pick up D, whom I had dropped off at 7am for day surgery.

For some reason the car radio was tuned to 98.5 fm.  According to Wikipedia:

2000FM (callsign 2OOO) is a multilingual community radio station broadcasting to Sydney in languages other than English from studios in the suburb of Burwood. It is a volunteer run organisation and is funded through listener support, grants and limited commercial sponsorship.[1]

The mission of 2000FM is to provide a service through dedication to enrich the cohesion of our cultural diversity via tolerance, understanding and respect for each other.[2]

When I turned the radio on just after setting off a man was reading from John Hewson’s article in the SMH, the substance of which was to complain that members of the Liberal Party who were agitating for a free vote on marriage equality were grandstanding at the expense of the coalition’s electoral prospects.

Hewson had written:

To be clear, I support same-sex marriage, and like so many who do, don’t, and are just a bit “here and there”, I would like to have seen the matter dealt with expeditiously, given what is perceived as widespread community support.

Up till then, I didn’t know what station I was listening to – I thought it might have been RPH (PH for print handicapped).  I was swiftly disabused of this when the reader interrupted his reading at this point to ask John Hewson, as a politician, if he ever would have been asked to write an article on SSM for the SMH if he did not say he was in favour of it.  Then I knew what side the wind would be blowing from.

Not that Hewson was actually there to answer the question.

From there on the reader interspersed Hewson’s text with his own comments. By the end (he hadn’t finished when I finally got out of the car) he was in full flood.

The argument as far as I recall it was:

  1. The trouble all began when we let same sex parents have children.
  2. Children hate to be left out or to be different.
  3. Same sex parents therefore wanted to be married so that they could go to parent teacher nights etc and be recognized. [so far an interesting inversion of the ‘all about the children’ arguments – it shows how people attribute to their opponents their own ways of thinking]
  4. So now they were trying to subvert our traditional notion of marriage, and take away our marriage, the institution of which we are a part;
  5. Which is part of our Armenian cultural heritage [he didn’t sound very Armenian, if that is possible, and maybe I’m a bit mixed up here with the announcements from time to time that the program was sponsored by St Gregory’s Armenian School – an institution which in fact was wound up some years ago with its premises at Rouse Hill now sold to Malek Fahid Islamic School and much productive – for lawyers – litigation]
  6. And not, (implicitly, like homosexuals) a matter of genital-to-genital.
  7. And now some of our politicians think they know better than us!
  8. there’s this Warren Entsch “not that I know Warren Entsch from a bar of soap – except that a bar of soap leaves you clean
  9. So you should get on your computers, I know you have them, and tell them that you don’t want it;
  10. Don’t let those homosexuals get their fingers on our marriage!

There was more with which obviously I disagree, and I haven’t remembered all the nasty swipes along the way – I’ve only really clearly the remembered the one at Entsch.  I think the “fingers” (why not hands?) remark was also associated in some way with some snide suggestion (maybe about genitals again) that made it seem nastier then than it does as I have reported it.

Meanwhile, today the Liberal Party, summoned by Malcolm Turnbull, has stuck to Tony Abbott’s poison pill.  It’s not that both major political parties (Julia Gillard was a particular disappointment and Penny Wong not much better) haven’t had to wrestle in their own ways with the art of the politically possible, but surely the politically possible is changing?  The biggest irony is that, at least from where I stood, Abbott’s slippery entrenchment of the plebiscite by a joint party meeting was the final nail in his political coffin, because it was not how many had understood his previous political undertakings, even if it was consistent with the fine print.

Even the statutory embedding of a man-woman definition into the Marriage Act in 2004 (one of John Howard’s many bad deeds, though not without accomplices) was such an entrenchment – because if there was nothing to try to resist in a last ditch way there was no point in it at all.

The only consolation I can see at present is that if the head of steam builds up strongly enough, the change, when it comes, will be less traded off for little sheltered pockets of bigotry.

Here’s hoping.

 

 

 

 

My (new) scenic ride to work 1

June 11, 2017

Just over a year ago, I moved to Canterbury. Ironically, just as NSW mergers of local government areas brought into being an officially designated “Inner West,” after over 30 years (leaving aside my Perth sojourn) I am no longer living there.

That was a bit of a blow to my geographical self-respect (self-regard some may say).  It also means that I am one big hill further away from the city.  As age takes its toll, that has proved an obstacle to a bicycle commute.

Maybe one day I will surmount that.  Meanwhile, when time and weather permit, I can ride to Sydenham and take a fast and more frequent train from there.  This is my new scenic ride (half way) to work.  It takes me mostly along a stretch of the Cooks River cycleway.

detention, green

That’s the detention pond near the mouth of Cup and Saucer Creek, not long after I join the path on the south side of the river.  When I took this picture it was full of unsightly green algae. It has since cleared up.

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This is a distant view of the old sugar mill, now converted to flats:

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I usually cross the river at this point:

bridge near sugar mill

There is a small harbour which must have been used for the sugar mill:

sugar mill harbour

An area is fenced off to protect birds basking in the sun from pesky people.

pelicans 1

pelicans 2

I suppose I got too close for comfort.

It was difficult to catch a good photo of this, but you can detect the main stream of the river from the plastic water bottles and other flotsam floating up and down along it with the tide.  Here at least some street rubbish has been captured at the end of a stormwater drain:

rubbish trap

though as we know it is but a drop in the ocean.

The path continues past sometimes flood-prone land and (I’m being botanically imprecise here) pleasing stands of paperbarks which I guess find that congenial.

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After passing playing fields and some decommissioned tennis courts, the path crosses the Cooks River again on a bridge which is definitely in need of renewal.

This brings the path back to the southern side of the Cooks River.  There is a mosque.

islamic centreThe path crosses Wardell Road and there are more playing fields and a tennis court which is often being played on until quite late at night.  A new bridge crosses over again just near the Marrickville Golf Course clubhouse:

golf course bridge

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I ride past the club house and out of the golf course, cross the bottom of Illawara Road and come to Steel Park.

Even if I’m not really thirsty, I always pause for a drink of water here on principle.

water stand

Because it’s free.

 

 

 

 

 

Proposed travel ban for pedophiles

May 30, 2017

News  is out today that the Australian government, at the urging of HH Derryn Hinch, will be taking passports away from convicted pedophiles.  It is estimated that over 20,000 convicted sex offenders on the National Child Offender Register may lose their passports or their eligibility for them.

It’s a slippery slope, and we seem to be rushing headlong down it.  Here is one comment by “Mark II” on that story:

I think it’s a great initiative – I am no supporter of this government but I think this will sail through with bipartisan support. In fact, I’d extend it further, and say anyone convicted of a trafficking offence for drugs or serious financial misdemeanours should be barred from travelling, too. I’m not talking about a recreational marijuana user or kid who’s swallowed some E down the club – but anyone selling, sorry, you lose the right to be tempted a la Corby and the current clone. And – if you rob your employer or clients and go to jail for it – likewise. No escaping overseas to start anew and avoid your garnishee responsibilities.

At  least “Mark II” shows some awareness of the possible blanket-reach of such measures.  Good luck to him in expecting that the authorities will draw the right line between serious and minor offences – the current approach to even trace elements of drugs (which provide no evidence of intoxication or impairment) in roadside drug tests is a case in point.

Others cheerfully propose even more radical measures without such awareness.

My own feelings are more in line with this comment, by “Jack” (though “scum” is not a word I would choose to use even of people who do very bad things):

I agree child sex tourists are scum. But we need to be careful with populist blanket legislation because, as we have seen, it can have unintended consequences and it can impose excessive punishment on those individuals who are not likely to reoffend. This is why authorities, even in the USA, have questioned the fairness and effectiveness of blanket sex offender registers. So I’d rather see a targeted register, with judges having the option of putting a name on it.

 

If you follow the jurisprudence in NCAT and other tribunals dealing with applications for Working with Children Clearances (rough selection here), you will soon discover that a very broad range of people commit offences against children.  Only some of these are indicative of a settled tendency to abuse children; many others are products of specific situations which are not likely to be repeated or where the person convicted is likely to rehabilitate and has by now shown that to be the case. These, include juvenile “sexting,” obsessive curiosity in the face of the internet, difficult family and personal circumstances, immaturity and loneliness.

There is a whole heap of bus drivers who have done something wrong within their own family, often many years ago, but who have driven buses without incidents for decades, who are currently been deprived of their employment even though the likelihood of their offending against someone outside the family must be very small – as their incident free record since demonstrates.  They go to the tribunal to try to get a clearance but often fail because they lack the resources to mount a proper case.

Some people who have pleaded guilty many years ago to what then seemed a minor offence (which they might have defended) must now regret that decision bitterly.

To ban someone for life from leaving the country is a very simplistic response to a wide range of offences.

If there are to be travel bans, it would be better if these were imposed on a case by case basis when there is a real risk; they could be limited by time or subject to some procedure for review/extension.

I realise that whilst this could be done going into the future for fresh offences, it would leave unaddressed the question of historical offences.

It is not easy to see how this can be addressed.  The many difficulties just expose to me the fundamental wrongness of imposing a civil disability retrospectively in a blanket way.

Cases of notorious sex offenders in South-East Asian countries (mostly) are rightly a matter of outrage, but they must be a very small number compared to the 20,000+ on the Child Sex Offenders Register (plus those whose offences occurred too long ago for them to make it on to the register).

One possibility would be to impose a more selective ban, targeted to those with historic offences whose travel activities indicate repeated travel to “child sex tourism” destinations.  In the future, this would require more rigorous collection of destination information for overseas travellers, which at present is mostly based, I expect, on self-reporting on travellers’ return.

Whatever will be done will involve some overreach, and even if there is a mechanism for appealing against it, will inevitably work against the less well-resourced.  It will also work against people with family overseas who have legitimate reasons to visit them and for whom the usual assumption (and Government attitude) that a passport is a privilege rather than must be questionable.

In the meantime, we can expect charges of offences of this nature to be defended more vigorously than ever, with attendant trauma to complainants/victims.  This is already happening.  Even when there is a plea of guilty, the process of investigation (to ensure nothing worse happened) and prosecution has its own Heisenberg effect, as in the case of Christopher Ryan Jones which led to victim impact statements from victims who would probably otherwise have been happily oblivious of the wrong done to them.

 

 

 

 

 

Adrian Ashley of the House of Cooper

May 3, 2017

One day, Adrian answered a knock at his front door.  He was seized by two men.  Adrian said they were assaulting him; they said they were policeman (which, though in plain clothes, they were) arresting him on a bench warrant for failure to attend court in relation to a charge for possession of cannabis.

Adrian called out to Izabella-marie, who was in the house.  She phoned Keith for help.  Keith talked on the phone to the police but was ineffective in dissuading them from taking him to Newtown Police Station.  Keith (and maybe Izabella-Marie) went to the Newtown Court House.  Keith’s account of what happened there is as follows:

(18)   We [Keith] went into the court room, where the presumed magistrate (her office/title was undisclosed) was made aware that We believe the Man called by Adrian may be under false arrest due to the fact that due process of law to which Adrian was deprived and was not followed, as such the officers may have committed assault, abduction and kidnap in company without warrant.

(19)   One [Keith] was asked by the Magistrate if we wanted to apply for bail.

(20)   We made her aware that we wanted him released immediately due to the failure of the police officers to follow due process of law.

(21)   The Magistrate then asked “Mr Cooper” if he wanted bail? One informed her that Adrian was not a Mister as this is a military title and that he is not in the military and that the man known as Adrian uses no titles.

(22)   The Magistrate said “bail is refused” and left the court, knowing we were there to get Adrian released as we believe the Police officers may have exceeded the alleged authority which would be misfeasance of their office and therefore also committing a wrong/tort in their private capacity under common law.

On 26 April Keith went to the Supreme Court seeking a writ of habeas corpus for Adrian’s release.  He said (to paraphrase):

  • Adrian was a loyal subject of the Queen who believes the St James Bible to be the only law and has not consented to be governed by the laws of this state (having delivered a declaration to that effect to the police);
  • Possession of cannabis could not be a crime, citing Genesis:
    “And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.”
  • The arrest was unlawful because (1) the police did not have the warrant with them; and (2) because it was effected violently.

None of these points succeeded before Justice McCallum, sitting as the duty judge.  As the application (which was procedurally irregular in many respects) had been brought outside usual sitting hours, she dismissed it and reserved her reasons, now published as Application of Adrian Ashley of the House of Cooper [2017] NSWSC 533.

As to the Genesis argument, McCallum J couldn’t resist a bit of judicial humour (at [10]):

The point might have been made in response to the petitioner’s [Keith’s] submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes.

but seriously, folks:

In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.

She held that is not necessary for police to be in possession of a warrant to effect an arrest under it.

The “Hutt River Province” argument was manifestly hopeless.  As she concluded [these numbers should start at 24]:

  1. I did not think it was reasonably arguable that the applicant’s [Adrian’s] affirmation and proclamation were effective to relieve him of the constraints imposed upon him by the law.
  2. Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).
  3. After hearing from the applicant at length, I formed the view that no reasonable basis for a writ of habeas corpus was disclosed and, indeed, that the application was manifestly hopeless. In that circumstance, I did not consider it appropriate to grant the relief sought or to make orders for any further step to be taken in the proceedings.
  4. I wish to record that, during the hearing, I informed the petitioner on a number of occasions that it remains open to the applicant to make a release application under the Bail Act 2013 (NSW). The petitioner appeared to reject that proposition, evidently taking the view that a release application is only appropriate in circumstances of lawful detention, whereas he contends the applicant’s detention is unlawful. The petitioner’s view is misconceived in that respect and he potentially does the applicant a disservice in adhering to it. It is to be hoped that the applicant is aware of his entitlement (notwithstanding his stated position of eschewing the benefits and privileges conferred upon him by the State) to bring a release application under the Bail Act. Any such application is likely to be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.

Oh, everything is so civilized in the Supreme Court, even if it is only on the surface.  Of course it didn’t get Adrian out of gaol.  Nevertheless, Justice McCallum heard Keith and allowed him to make his application at length, outside normal court hours, and even gave a little bit of judicial advice.

I wonder if things were all so sweet when, next morning, assuming the police delivered him up, Adrian was brought out of the cells to appear before Magistrate Greg Grogin at the Central Local Court.

Maybe they weren’t.  The charges in the Local Court are listed for mention on 11 May, again at the Central Court, which is the one set up best to deal with people already in custody.

Unfinished books 2

April 25, 2017

back end cartload

This is the second in a series.

Amongst the books I have salvaged from my late father’s house is a copy of George Johnston’s last book, A Cartload of Clay.

My copy is ex the YMCA library in Sydney.  A pristine date due slip and loan card in an envelope pasted inside the back cover suggest it was never borrowed from that library.  The front page bears the name of a colleague of my father’s, with whom he lunched practically every day when they were both at work (I joke that he was “the other man”).  Judging from another, pencilled note “1st ed. $1” he bought it second-hand.

Published in 1971, this the third instalment of Johnston’s “David Meredith” trilogy, following My Brother Jack (1964) and Clean Straw for Nothing (1969).  I heard My Brother Jack read (abridged, obviously) as a serial on ABC Radio some time in the early 70s and later read it and Clean Straw for Nothing when I was about 16. I surely also read Cartload of Clay then, if only out of completism, though I have no real recollection of that.  I was probably too young to get what it was on about.

The trilogy is autobiographical – David Meredith is Johnston, subject to the usual fictive rearrangements. Cressida is his second wife, Charmian Clift.  Johnston and Clift returned to Australia in 1964; Clift committed suicide on the eve of the launch of CSFN.

Cartload follows a day when the widowed Meredith sets out on a “practice walk” up the street to the church where his daughter is to get married.  Like Johnston, Meredith has lung problems.  He doesn’t get far.  Taking a breather at a bench by a bus stop he meets various local characters and dozes off and his mind wanders – to an interlude in wartime Kunming – an affair and his friendship there with the poet Wen Yiduo; – to a trek on the Tibetan plateau with a photographer friend who later fell off a mountain when stepping back to take a picture; to his time in Greece; to his return to Australia and his encounters with the younger generation; to the suicide by Cressida with the stock of barbiturates he had kept by his bed to do the deed for himself; to his childhood in Elsternwick – revisiting a subject already dealt with in My Brother Jack, but now treated with less scorn.

It is hard to see how the novel could have finished other than with the death of David Meredith.  In the end, Johnston beat his character to it and the book was published unfinished.  There is a good introduction by Sydney’s Mr Literature of the day, John Douglas Pringle.

I realise that I am pretty much exactly same age that Johnston must have been when he wrote this – he died just two days after his 58th birthday.  I am sure this makes me more receptive to its themes than I can have been when 16.

I’ll squib the duty of a literary critic just as I do of a musical one: I don’t profess to say what the book is about  (as if a novel can be reduced to a syllogism).  There are some quaintnesses of period (the Youth generation; women) but also much that is resonant to me – poetic even.  I have enjoyed reading it.

Here is an extract – omitted yesterday on account of ANZAC day.

Meredith discovers he has bitten his fingernail down to the bleeding quick:

Meredith fingernails I

Meredith fingernails II

That is in chapter 14.

Chapter 16 starts with Meredith sitting at the bus stop:

“If at this stage you were to imagine the scene as being presented on the stretched-out oblong of the modern cinema screen it would be most interesting to visualize it through whatever is the opposite to a zoom lens; the retreating viewpoint, that is, soaring higher and higher like an escaped balloon, focused at the figure of Meredith huddled lonely and solitary on the mundane suburban bus seat…”

to the point where he is just an invisible speck amongst “the drab red expanses [of red tile and red brick and …cement and asphalt], now from our great altitude resembling a parched desert.”

16.1 Meredith

End of chapter 16

There’s something a bit overbearing, like an old-style newsreel voice over, about the second person address in this chapter, but I love how the fingernails come back into it.

One funny thing.  Johnston’s final home was in Raglan Street, Mosman – thinly disguised in the novel as Inkerman Street, “Northleigh.” I cannot imagine that I knew this before I looked it up in a biography of Johnston also salvaged from my father’s house, but as I read the book I already had a distinct picture in my mind of a street in Mosman and the bus stop where Meredith pauses. It wasn’t the exact street, but it was pretty close.

I think that I shall never see…

April 15, 2017

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Opera Australia 2017

August 25, 2016

Opera Australia has announced its 2017 season.  That link foolishly describes OA as “unperturbed” by the closure for 7 months of the Opera House opera theatre, which is clearly not the case.

It’s a pretty devastating announcement, so far as Sydney opera-goers are concerned.  In place of the closed Opera Theatre, OA has only managed to secure the 400-seat Playhouse, in which it will stage a pasticcio operetta, the Concert Hall (for three concert performances of Parsifal with big-name tenor Jonas Kaufmann) and the Capitol Theatre in October-November for an 11-performance run of the venerable Oxenbould production of Madama Butterfly (last seen here in 2015). The only other conceivable alternative venues, such as the Lyric Theatre at the casino or the Theatre Royal (which would really be a squeeze) are themselves affected by closures for renovations next year.

There are also a few other one-off events including a concert performance at the Town Hall of Massenet’s Thaïs.

Apart from the pasticcio, OA is staging no new productions of its own. Two new productions are brought/bought in from Covent Garden. One is a bold gesture: Szymanowski’s King Roger; the other, Cav & Pag. Otherwise, Boheme, Tosca and Traviata are all very recent returns.  The Handa opera-on-the-harbour is a repeat of Carmen.

Things aren’t much better in Melbourne with a run of The Merry Widow making up their summer season, though it is a new production with a homecoming Young Talent Time winner.

It’s obviously a belt-tightening year for OA. Will there be commensurate cuts for the upper management’s salaries? Don’t hold your breath.  I wonder whether the engagement of Kaufmann for Parsifal (one can only guess at the cost of this) is judicious as opposed to a defiant gesture.  Terracini says that people will pay to hear quality voices but even so he expects to lose money on this.  Personally I’d prefer that the money were spread a bit more evenly on employing local artists.  Even an expatriate would be more fitting and probably a bit cheaper whilst still being of interest to many even if not such a headline for the non-opera-going public.

No set subscriptions are being offered next year.  You have to make up your own series. When I tried to do that on the website my seats were assigned to me (never satisfactory) [Postcscipt: a commenter has not had that problem so it seems this was just me] which is odd because once I reached the minimum of 3 different productions to make up a subscription I was able choose your own seats off the seating plan. [I then rang up – it cannot have been an easy day manning the OA phones.]

As for my subscription, I’m keen to see King Roger and prepared to see Cav&Pag on account of the new production.  I’m making up the minimum 3 with a point seat for La Traviata which enables me to bag a couple more point seats for King Roger as well as extra seats for D for KR and C&P.  It will all be over by about the middle of Feb.  That’s a big retrenchment (and saving).

OA boldly suggests that subscribers make up the shortfall of available shows with a donation to their usual level of expenditure.  I suppose they can always ask.  The bigger risk is that people will break the subscribing habit altogether.  With any luck Terracini will then be free of that opera “club” for which he has expressed so much disdain.

 

 

Michael Spence

August 12, 2016

is the vice chancellor of the University of Sydney.

It’s been just a bit comical seeing his public road-to-Damascus moment about the “bamboo ceiling” – now that following his remarriage after the tragic early death of his first wife he has a child who might possibly come up against it one day.

Today Spence is reported complaining about the immorality of subsidising the costs of medical tuition for Australian students with the profit from international fee-paying students.  He says:

Australian universities “tax the poor families of Sichuan to subsidise the education of kids who went to Kings to become doctors and charge people a lot of money.”

That seems a bit colourful to me.  Plenty of medical students come from James Ruse rather than from Kings.

There is a university system in China, for which entry is competitive but which you can reasonably say is open to poor students of high ability.  General view in China would be that Australia is where the (relatively) dumb and rich ones come, and as to who the rich are and how they are rich there are plenty more views about that.  According to those views, maybe you could describe the origin of their wealth as a “tax” on the poor in a very loose sense.

Most Chinese would be astounded to learn that the Chinese students studying in Australia came from “the poor families of Sichuan.”

Do not leave the village

May 20, 2016

That’s what the original Inspector Barnaby in Midsomer Murders frequently said to witnesses or suspects.  Given the main way of being eliminated as a suspect in Midsomer, you have to wonder why anyone obeyed him.

Christopher Sharkey and Donya Nissi met in 2003 or 2004.  Sharkey, 20/21, was an internet whizzkid.  Nissi was just finishing or had just finished school.  They moved to Orange where Nissi went for her university studies.  At this time Sharkey’s business, Ozstays or Stayz (if there is a distinction I’m not sure what it is) was already doing quite well.

In December 2004 they became engaged at a concert by “The Whitlams” in Newtown.  Spectacularly, Sharkey set the proposal up by arranging for the lead singer, Tim Freedman,  to sing “The Lady in Red” (or a fragment of it, anyway) and announce that “this is for Donya from Chris” before he popped the question.  He had told Freedman that this was Donya’s favourite romantic music.

In 2005 they bought a house at [MM] Denison Road Camperdown in both their names.  Sharkey provided the cash for this, or most of it.

At the beginning of 2006, Sharkey (by now 23/24) and his business partner sold their interest in the Stayz business for $12.7 million.  Sharkey received half of this. He used some of that to pay of the mortgage on [MM] Denison Road.  He also gave substantial presents to his father and to Nissi’s parents to pay off their home loans.

In late 2007, Sharkey and Nissi bought the neighbouring property to No [MM], being [NN]Denison Road.  Sharkey paid for this.  Sharkey said that the property was put in Nissi’s name to protect it from claims that might be made against him.

Almost immediately after that, Sharkey decided he wanted to raise money for his business ventures and investments.  He set up a family trust which borrowed money for which both No [MM] and No [NN] were given as security.

The relationship between Starkey and Nissi broke down in mid 2008, though the break-up seems to have been clandestine – they still went as a couple to family occasions.  Sharkey moved out into shared accommodation and Nissi stayed in No [NN] with Sharkey’s dogs.  (No [MM] seems to have been tenanted.)

In 2011 Sharkey wanted to raise more money for his business ventures.  He proposed selling No [MM] for this purpose.  In March they reached an agreement (recorded in writing). Sharkey or the Trust would would not contest the ownership of No [NN] and would make no more loans against it and repay the loans then secured against it by the end of 2012.  Nissi agreed that the entire proceeds of sale of No [MM] would go to Sharkey.

Later that year Sharkey went to America where he worked with his brothers on their internet ventures.

Sharkey or the Trust did not repay the monies secured against No [NN] by the end of 2012, and stopped making payments on the mortgage at the end of 2012.

In 2013, after demands from the bank, Nissi refinanced the debt and rented the property out, presumably in order to meet the mortgage.  Sharkey commenced proceedings that in truth No [NN] was his and Nissi should convey the property to him; Nissi cross-claimed for performance of the March 2011 agreement (so far as Sharkey had agreed not to contest the ownership of No [NN]) and damages for its breach (so far as she had been put to expense to repay the mortgage when he did not).

The matter came on for hearing in February 2015 before Justice Robb.  Most of the facts above come from his judgment, finally handed down in September 2015.  Some of them may be a bit inaccurate because judges often don’t get every detail right and if such details don’t make a difference to the outcome or the matter is ultimately resolved they will stand uncorrected.  To save any suspense, I should add that Nissi was successful, though the amount of damages is yet to be assessed, mostly it seems because Nissi was unsuccessful in tendering in the course of the trial some of documentation proving components of her damages claim .  That just shows how hard-fought the trial must have been, because in fact the damages will presumably could well be continuing by reason of any interest on the mortgage debt that Nissi is probably still paying.  But maybe Sharkey, who is now in America, doesn’t really care all that much.

Which is what Nissi was worried about last February. If she won, she would be secure in her ownership of No [NN], but how would she get the money part of her claim?  Sharkey was now living in the USA.  Perhaps he had put his assets in the name of his new partner, as he said he had done with Nissi, to make himself proof against judgment.  When the hearing started, he gave evidence that he had negligible assets in Australia.  And in the opening by his counsel, some remark had been made about the witnesses returning to the USA as soon as they had given their evidence.

Nissi’s team jumped into action.  They engaged separate counsel, John Hyde.  On 18 February he went off to a different judge (the duty judge, Justice MacDougall) while the trial before Robb J was still going on and obtained an ex parte injunction preventing Sharkey from leaving the country.  Ex parte means they went before Justice MacDougall without forewarning Sharkey.

You can make ex parte applications when the nature of the order is such that if the other side knows you are going to seek the order (which is usually to stop them doing something) they might just go and do it before you can get the order, in which case it will be too late.  Such orders are always made in a way which brings the matter back to the court shortly after for the person bound by the order to have a chance to say why it should be discharged or should not have been made in the first place.  There is a duty when making an ex parte order to disclose all relevant circumstances to the court.  If you haven’t, that is the first ground on which the other side is entitled to have it discharged.

The problem for Nissi was that what was said by Sharkey’s counsel about Sharkey’s witnesses leaving immediately had been misinterpreted.  On a fair interpretation, and in the light of previous correspondence, it was clearly only a reference to witnesses other than Sharkey.  John Hyde told MacDougall that Sharkey too proposed to depart precipitately.

Justice MacDougall  made the orders at about 11.40am.  The orders required Sharkey to deliver up his passport to the Court.  They also provided for the matter to come back before him at 2pm.  This would normally be the point at which Sharkey would have his first opportunity to argue against the orders.  Pursuant to leave granted by MacDougall J, the orders were served on Sharkey in the precincts of the court during the morning-tea adjournment of the trial before Justice Robb.

It must have been a bombshell.  Sharkey’s side had just completed their case.  The matter had to be raised with Justice Robb because of the listing before Justice MacDougall at 2pm.

In correspondence over lunch Sharkey’s lawyers complained about the ex parte application and whether all relevant matters had been disclosed.  They even asked Nissi’s lawyers if they had disclosed to MacDougall J that Sharkey’s wife is more than six months’ pregnant and was also looking after a 10 month old child on her own.  Feelings were running high.

The matter shuttled backwards and forwards between MacDougall J and Robb J over the next day or so.  Robb J was reluctant to deal with an application to set aside an order made by MacDougall J.  There was also the question of the time available before Robb J to complete the substantive hearing, from which arguments over the ex parte orders would obviously be a distraction. Whilst Nissi had a separate barrister engaged, Sharkey did not.

Ultimately, the further consideration of the ex parte order was heard by MacDougall J on 25 February 2015.  His Honour set it aside on the basis of material non-disclosure.  Even then, transcript was not available of the 18 February ex parte hearing.  Once the transcript was available, John Hyde wrote to the judge and the other side apologizing for statements he made about what he had said on the 18th which proved to be incorrect.

This is an illustration of something that Macdougall J himself referred to when setting aside his earlier decision, because he accepted that the mistake about what had been said by Sharkey’s barrister about witnesses leaving was an innocent one.  As Justice Kunc later said (see further below):

It is, regrettably, an all too common experience for solicitors, counsel and even judges to think they heard something said in court which is ultimately not borne out by the transcript (assuming that the transcript is not itself in error). Context and preconceptions brought about by which side of the record someone is representing can have a powerful influence on the way something said in court may be heard. Different people will hear different things. Furthermore, particularly in circumstances of urgency, one person’s account of what they heard if given to another may create a predisposition in that other to read the transcript in a particular way. That is what occurred in this case

Just a bit ironically, given that his application to set aside the injunction was based on a misrepresentation to the court by Hyde concerning statements made on Sharkey’s behalf leading to an inference that Sharkey  was planning to flee the jurisdiction, Sharkey did in fact leave Australia for the USA on the evening of the day the injunction was set aside – though he was held up at immigration because the court order had not yet been taken off the books.  He eventually made his (delayed) flight but his luggage did not catch up with him for about 30 days.

This shows the strictness of the rule that an ex parte order will be discharged if there is a material misrepresentation.  The order was discharged even though the risk to Nissi of getting no money from Sharkey if she succeeded existed whether Sharkey left the jurisdiction immediately after giving evidence or at any time before he paid her what he might be found to owe or provided security for that amount.

Then again, you might think it a tall order to require Sharkey to remain in the country until then. Potential judgment creditors are usually only entitled to what was originally called a Mareva order preventing the dissipation or concealment of assets if it can be shown that there are such assets and there is reason to believe they will be secreted away in order to render the judgment futile.

Justice Robb delivered judgment in Nissi’s favour in September 2015, but the question of the amount of her damages was deferred to a further hearing.

In October, Sharkey changed lawyers.  His new solicitors, Bransgroves, wrote to Nissi’s solicitors complaining about the conduct of Nissi’s lawyers in obtaining the ex parte orders.  In this letter they said that this conduct was such misconduct that those lawyers could not be trusted to conduct Nissi’s case with the necessary dispassionateness and that they should therefore not continue to act for Nissi. The letter included allegations such as “grave misstatement of the law”, “recklessness”, “professional misconduct”, “complete fabrication”, “wilful deception” and “connivance.”

In February 2016 Sharkey filed a notice of motion seeking orders from the court that Mr Hyde and Ms Nissi’s solicitors, EMC, no longer be permitted to act for her.  In submissions for that application, Peter King (Malcolm Turnbull’s predecessor as member for Wentworth) repeated many of the accusations made by Bransgroves, albeit in more temperate terms.

Once lawyers’ personal interests are involved the forensic temperature always rises.  Classically, you see that in arguments about costs, where the argument (personal costs orders aside) is about loss of face and which side’s lawyers are going to have to get their clients to pay their fees and maybe also the other side’s.

This is all the more so when allegations of professional impropriety are made – if only because then it is likely that Hyde’s and the solicitors’ professional liability insurance policies were enlivened.  Even though it was unlikely that Mr Hyde would have any ongoing involvement in the case, he could hardly be expected for that reason to acquiesce in such a judgment on his conduct. The hearing of the notice of motion was a veritable festival of silk on the respondents’ side.

In the course of the hearing, before Justice Kunc, Peter King eventually resiled from the more florid accusations of professional misconduct, or at least no longer relied on them.  His Honour held, consistent with Macdougall J’s decision (and with the observations quoted above), that the mistake about whether Sharkey was planning to “abscond” immediately after giving his evidence was an understandable misunderstanding.  Sharkey’s application was dismissed.

Sharkey had applied for orders preventing not only the individual solicitors involved within EMC but also the entire firm be restrained from acting for Nissi.  Kunc J held that there was no basis for the application other than against the two partners involved so that the remaining partners were entitled to have Sharkey’s notice of motion summarily dismissed against them.  That’s over and above the fact that the application was eventually dismissed against the two partners involved.  The costs consequences for Sharkey of bringing an application with no basis (and at a time when the two partners who had been involved had undertaken or offered no longer to be involved) have yet to be determined.

EMC also applied for orders that the Bransgroves letter and Mr King’s submissions repeating the allegations made in it be removed from the Court file as containing material that was “scandalous and oppressive.”

Kunc J agreed that the letter was entirely inappropriate in tone and that this infected the submissions so that both were scandalous and oppressive.  But for the possibility that the matter would go further (such as by an appeal) he would have had them removed from the file.  Instead he ordered that they be placed in a sealed envelope in the Court file marked “Not to be opened without further order of the Court.”

Back to Midsomer.

Rather quaintly, the order preventing Mr Sharkey from leaving was described as an order in the nature of ne exeat colonia.  That’s a local adaptation of a historical English order ne exeat regna.

It means “Do not leave the colony.”

Afterword:

I speculated above that maybe Mr Sharkey, now in America and with negligible assets in Australia, doesn’t care all that much about the damages claim. Subsequently, Ms Nissi sought to amend her cross claim to include a claim for indemnity from the Trustee of the trust on the basis that, as a guarantor, she had repaid debts owed by it. I’m guessing this is because the Trust has assets which are amenable to enforcement even if Mr Sharkey does not (again the whole ne exeat problem). Ms Nissi had made a claim to be subrogated, described as “misconceived” and dismissed.  I can’t be bothered to rake through the facts to work out the misconception unless it is simply that it was back to front.

Robb J refused the amendment because it was too late and because, unless further evidence were to be led, consistent with his reasons to date it was doomed.  Robb seems to have taken the view (at [57]) that someone has blundered on Ms Nissi’s side.  Always an easy conclusion to reach in hindsight.

Build it and they will come

May 18, 2016

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Sydenham Station sits at the bottom of Marrickville.  When I lived at Dulwich Hill I sometimes caught the train there because of the quick and frequent service on the Eastern Suburbs line and even more often caught the train back there in the evening when services on the Bankstown line became (even) less frequent.  On the footpath approaching the station there were a few stands for tethering bicycles and always a few bicycles there.  Only a few and mostly rather broken-down looking:  it always struck me as a pretty perilous place to leave a bike.

Over about a year and a half from 2011 to 2013, Sydenham Station had an extensive upgrade.  By the time it was finished I had moved to Ashfield, and it’s only recently I’ve found myself back there to catch a train.

New “bike storage facilities” were part of the upgrade, as you can see.  In what the designers probably considered a magnificent and enlightened gesture, far more “facilities” were provided than I ever saw bikes there.

If you look in the glass in the picture above, you can see that demand has now well outstripped supply.  The picture is clearer but more more prosaic below:

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