Archive for the ‘gay’ Category

Twinks and Tipstaves

May 10, 2019

Bernard Gaynor is a conservative Catholic activist and blogger.  His conduct as such was too conservative (or more accurately, just too much) for the chief of Australian Defence Force.  He’s particularly down on GLBTIQ types.

Garry Burns is a self-appointed gay activist whose specialty is making complaints about people who vilify gay people.  If you like (and others might say in his dreams) he could be described as a mixed avatar of Peter Tatchell and Quentin Crisp with a touch of John Inmans thrown in.  He likes to make jokes about his pussy – though of course that is really Mrs Slocum, isn’t it?

Garry has been going after public homophobia and anti-gay vilifiers for a while.  From memory, going back, it started with him confronting vilification from his neighbour in public housing, but after that and particularly with the arrival of the internet he widened his field of vigilance.  The public housing is not irrelevant.  As a pensioner in public housing Burns is the perfect complainer and plaintiff as he is practically speaking immune from fear of any adverse costs orders.

Burns makes complaints to the appropriate anti-discrimination bodies and as he is in NSW eventually hauls those he has complained about up before the relevant NSW tribunal – NCAT.  (Other states don’t all have such favourable laws for bringing this sort of complaint.  Under NSW law, apologies and compensation can be ordered.)

Or at least he did.  Eventually Gaynor and another of Burns’ targets scored a victory on a constitutional point.  The point was not that NSW law could not apply to Mr Gaynor in Queensland (for one thing, that would probably come up against the Gutnick case about publication on the internet occurring at the point of receipt), but rather that state governments could not establish Tribunals (which are administrative bodies rather than courts) and confer on them jurisdiction to deal with disputes between residents of different states.

Even before this finally went to the High Court, the NSW parliament enacted a workaround so that discrimination cases which could not be brought in NCAT could instead be “kicked upstairs” to the Local Court or the District Court, which undoubtedly were courts.

(In the meantime (unless it has now been resolved) there is still an incredible inconvenience that NCAT is no longer available as a low-cost forum for consumer disputes between interstate parties or even for landlord-tenant cases where the landlord is resident interstate.)

But back to my story.

Last Thursday, trumpeted in The Australian but nowhere else, Mr Gaynor had fresh proceedings before the NSW Supreme Court to stop Mr Burns from bringing cases against him in the Local Court pursuant to this “workaround.”  The matter was due to be heard before Justice Harrison.

But before the hearing could get under way, Gaynor’s barrister, Peter King, former member for Wentworth, son-in-law of Ian Sinclair and counsel of choice for out-there right-wing clients, had an oral application to make.

It was that Justice Harrison disqualify himself from hearing the matter on account of apprehended bias.

Apprehended bias is not a claim that a judge is actually biased, but a claim that a fair-minded observer would consider that there was a possibility (real, not remote) that the judge might be unable to consider the matter in an unbiased way.  It follows from the principle that justice must not only be done but be seen to be done, and also, in a practical sense, because of the almost-impossibility of proving actual bias.

It has to be raised with the judge.  Judges almost never disqualify themselves and indeed they are under a duty not to be wimps and disqualify themselves just to avoid the aggravation.  Then (provided you have raised it with the judge) if the judge finds against you you can raise apprehended bias as an appeal point.

First you need some background.  Supreme Court judges have two personal assistants.  One is the associate; the other the tipstaff. Tipstaves used to be retired military men wearing a long frock coat who knocked on the court door to announce the judicial entry and carried the judicial staff, though doubtless  they had other duties. Nowadays they are more likely to be recent law graduates – the positions are generally not advertised and appointments are made by the judge personally.

The starting point of the application was that, a few days before the hearing, Justice Harrison’s tipstaff had sent a series of emails to the parties inquiring about the status of the parties’ submissions – that is, were there to be any other submissions, are these the submissions, please provide them where there were none on the file, and the like.

It is generally assumed such messages are  sent with the authority of the judge, even if it is only a standing authority to attend to housekeeping matters in relation to impending cases.  Messages to and from the court are routinely copied to all parties to dispel any suspicion of private communications on the side.  Parties (especially litigants in person) sometimes fail to observe this but the courts are scrupulous.

Gaynor took exception to the emails on two counts.  First, the tipstaff emailed Burns and asked about his submissions, even though Burns was not taking an active part in the case and had filed a submitting appearance – (there’s probably a more complicated story behind this because it is hard to think  of Burns being such a shrinking violet).  So why was Burns being asked if he had any submissions?  Secondly, Peter King had already provided his submissions.  Wasn’t the tipstaff (and hence the judge) saying, in effect “Is this all you’ve got?””

This doesn’t seem like much to base an apprehended bias application on.  Justice Harrison said that, at the time the message was sent, neither he nor anyone in his chambers  knew that Burns had filed a submitting appearance as this had not caught up with the court file which they had just received.  Even where parties have already filed submissions, it is unexceptional to check that those are the final submissions and that there are not any more submissions or revised submissions or further submissions in reply in the pipeline.  It’s basically a kind of housekeeping.

But that was not all. Justice Harrison’s tipstaff has a very distinctive and hence readily googleable surname.  Gaynor is after all a man of the internet, so naturally he embarked on some sleuthing of his own.

And he found out that the tipstaff was gay.  Not only was he gay, but he had written a letter to Honi Soit  (the Sydney University student newspaper) in 2013 defending the Mardi Gras, volunteered for ACON, published a few more articles including a scholarly article about whether transmitting/contracting AIDS should still be considered grievous bodily harm in the criminal law, been an extra in a film “Wear it Purple” and participated in a group including a Mardi Gras float of that name, and on his Facebook profile timeline had posted a copy of a flyer for the Sydney University 2013 Queer Revue “Peter Pansexual.”

A review of “Peter Pansexual” had described it as follows:

“Directors Tom Murphy and Bro Reveleigh brought together a loud, proud, fabulous and unashamedly crude hour and a half worth of consistently laugh-out-loud funny skits. Highlights included the ongoing storyline starring Captain Cock and her dildo hands, the beautiful Fran Gianpanni’s rendition of ‘I’d Gaffa Tape My Balls’ (sung to ABBA’s ‘The Winner Takes It All’), and a Julius Caesar/Romeo and Juliet/Mean Girls mashup sketch.

Head Writer, Blythe Worthy, stole the show with her consistently excellent performances and lovely voice. One of the show’s real strengths was its diverse, nuanced portrayal of the many shades of sexuality. While there were, of course, the requisite gags starring dildos and twinks, the show roamed far beyond stereotypes and sequin jokes and even came perilously close to salient social commentary in parts.”

And there was more.  In October 2018, during the storm over the joint letter from the heads of Sydney Anglican Diocese schools claiming that they needed to be exempted from anti-discrination laws, somebody, now Justice Fagan’s tipstaff, had posted somewhere a comment to the effect “Thankfully my school didn’t sign this ridiculous, backward letter. But many did. [plus a bit more].  And Justice Fagan’s tipsfaff was now Justice Harrison’s tipstaff’s Facebook Friend!

So I suppose the application boiled down to:

  1. The judge’s tipstaff had sent the emails;
  2. The judge had chosen a tipstaff with pro-gay and therefore anti-Gaynor views;
  3. The tipstaff had a Facebook friend who in 2018 expressed other “anti-Gaynor” views.

(1) can hardly have amounted to much on its own; (3) was almost nothing; did (2) take things to some kind of tipping point?

As to 2, Harrison J said:

The personal views of my tipstaves are largely unknown to me, except to the extent that they are revealed in the context of the relationship I have with them as my assistant in chambers. My current tipstaff’s employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials.

So the answer is no.  The application was dismissed.  (Gaynor v Local Court of NSW & Ors [2019] NSWSC 516)

One publicaton by the tipstaff that Gaynor did not choose to complain about was a rather good submission to the NSW parliamentary inquiry into historical gay hate crimes in Sydney – which I guess was based on a research project for his law degree.  (Correction: google tells me probably his honours thesis for his BA.)

Postscript: others have commented here.

To die for

March 12, 2019

Yesterday I got an sms out of the blue:

[Md] has passed away in Thailand.

As it was an international SMS from Malaysia I knew it had to be from H, whom Md and I had both taught in 1996-97 when H came to Sydney from Malaysia on an obscure music scholarship offered through the school where Md and I worked.

I replied by text and then H rang from Malaysia.  He explained that Tx had been posting updates on Md’s condition on Facebook which were “tagged” to Md.  Md’s Facebook friends™ could then read them.  The messages were in Thai but you could click “translate.”  There were also hospital pictures which hardly required translation, but no-one ever looks good in those, do they?

I’m not on Facebook so all of this came as a shock.  I’d sent Md an email at the beginning of February and was beginning to wonder/worry when he hadn’t replied.  I now see that he was in the hospital by then.

In a way this was the end of a journey that D and I helped set Md upon.  In about 1998, Md had just broken up with his partner of about 15 years.  D and I suggested he come along to the Katana Club to cheer up.

The Katana Club was an on-again-off-again night-club which operated within other licensed venues, aimed at the then fairly ghettoized “gay asian” scene.  It features in Tony Ayres’ film, China Dolls.  It was in its final throes at this stage, operating in the Globe Nightclub in the former DSS premises in Newtown opposite the Greek Orthodox Church and the Performing Arts High School.

D and I arrived to find that Md had been there pretty much since the doors opened at the beginning of the evening.  Inevitably, his companions had been the oldest “western” men and the youngest “Asian” men.  Md, who was a large man and whose recently ex boyfriend had also been a strapping specimen, was uncomfortable with this.  “I feel like Dolly Dunn,” he said.

But a spark had been lit.  Quite soon Md was spending every available holiday in the flesh pots of SE Asia.  Once, Md showed us some trophy snaps of sexy young men he had met.  “To die for!” he exclaimed.  D could not bear the Pinkertonism.

Md made two attempts to import suitable partners.  The classic way is for the love interest to come on a student visa and do a Uni or TAFE course (TAFE is cheaper) to enable the relationship to be established, and then the application to be made with a bridging visa until it all comes through.  These enterprises are notoriously beset with opportunism and heartache, and not always because canny sweet young things have taken love-sick oldies for a ride.

The first was Nx.  Nx became a permanent resident and is probably now a citizen.  There were two little dogs.  Md continued his SE-Asian excursions.  Eventually Nx found someone else.  Nx and his new partner minded the dogs when the now-single Md went away.

The next, Ox, did not last as long.  Md could not accept that Ox was having daytime threesomes just up the road when Ox should have been at TAFE.  Not that skipping class was the problem.

In 2011 Md, who had finished working, sold up and went to Chiang Mai to live with Tx.  Nx and his new partner took the dogs.

Foreigners cannot buy land in Thailand, apparently, and so at some point Tx became the legal owner of Md’s townhouse. Money was lost on various business ventures that Md tried to set Tx up in.  Eventually the townhouse was sold and a smaller place bought.   By about 2014-15 health problems had emerged, including impaired mobility as a result of an injury to Md’s foot.

There was much tsk-tsking amongst Sydney friends, some of whom had become ex-friends in the wake of bitter words typed by Md, probably with a drink by the keyboard, when requests for quite sizeable loans were rebuffed.  I hadn’t come under much pressure in that department, probably because Md didn’t consider me such a close friend or prosperous person.

Quite a lot of tsk-tsking focused on Md’s relationship with Tx and what it had cost Md. Md, who must have complained about some of this to the friends at times, nevertheless insisted to me that Tx was a great help to him.

I cried a bit yesterday afternoon. After work I had a drink with PP at the spot where we lunched with Md on his last return visit to Sydney. PP brought me up to speed on the Facebook stuff. It turns out that a blood infection from the foot injury finally did for Md. You have to wonder if that could have been treated better in Australia or even in Thailand if Md had more money. The latter was H’s view. H sells life insurance these days so probably has a professional predisposition to see things that way.

Md was PP’s music teacher for 5 years of high school, and PP had only good memories of Md’s kindness. Grief is a hard thing to do alone and I felt a lot better after our own mini-wake.

Almost catching up

October 23, 2018

Continuing from my recent post and trying to catch up on a backlog of un-noticed performances. The motive for such blowhard completism is the reduced value of the blog to me as a record if I only maintain it patchily.

7. 1 9 SSO Brahms

This all-Brahms program, conducted by David Robertson, comprised:

Academic Festival Overture
Double Concerto for violin and cello and
Piano Concerto No 1.

The overture was a set work for AMEB musicianship when I was a teenager and I think for some years after (there was a time when the syllabus became set in stone) so I think I both studied and taught it. Oh those student songs! I totally did not understand the jollity of the choice of themes or, I also think, a certain measure of pathos in Brahms, hardly a ‘varsity man in his youth, having the chance to weave them together.

Orchestral principals Andrew Haveron and Umberto Clerici were the soloists for the double concerto. They are both good players but it is I think a shame that when putting such double concertante works on orchestras yield to the temptation to enlist soloists from the ranks. However good they are, they face an invidious comparison with the visiting soloists the orchestra engages and this took a bit of the gloss off it for me.

On the other hand, I really enjoyed Alexander Gavrylyuk’s performance of the first piano concerto. It’s a temptation to undervalue players of an (even only passing) local provenance and I think I had succumbed to that in advance. I’ve heard performances of this concerto which have aspired to maybe more grandeur and breadth, but often that has been at the price of forcing the tone to get the volume. Gavrylyuk managed to avoid that entirely and I really appreciated the lyricism that he emphasised – in a way, the Schumann end of Brahms.

8. 15 9 AE

AE stands for Australia Ensemble. This concert was dubbed “Schubert and the Guitar.” The guest artist was guitarist Karin Schaupp. I’m usually suspicious of the acoustic guitar amplified but Schaupp uses amplification  discreetly with her own kind of beat-box rather than being channeled through the venue’s PA system.. I did not find it disproportionate in a venue the size of the John Clancy Auditorium.

Of course we had to have a performance of Ständchen from Schwanengesang. The song is a serenade at the beloved’s window accompanied by a guitar, impersonated by the piano. It was a bit naff but fitted well to have instead Geoffrey Collins play it on flute to Shaupp’s accompaniment.

The full program was:

Robert SCHUMANN | Fantasiestücke Op. 73 (1849)

Robert DAVIDSON | Landscape (2000)

Franz SCHUBERT | Serenade from ‘Schwanengesang’ D957 no.4

Phillip HOUGHTON | From the Dreaming (1991, rev. 1997)

Paul STANHOPE | Shards, Chorales and Dances (2002) – first performance

Franz SCHUBERT | Piano Trio no.2 in E flat

I enjoyed all the contemporary works, but I still enjoyed the Schumann (for clarinet and piano) and the Schubert (a big play for Ian Munro) the most.

9. 17 9 SSO Piano

Back next to Elizabeth for a recital by Benjamin Grosvenor.  The self-consciousness of our first encounter now resolved.  The program was:

JS BACH French Suite No.5, BWV 816
MOZART Piano Sonata in B flat, K333
CHOPIN Barcarolle, Op.60
GRANADOS Two pieces from Goyescas: Los requiebros and Quejas ó La maja y el ruiseñor
RAVEL Gaspard de la nuit

The Chopin replaced a previously advertised transcription of Prelude to the Afternoon of a Faun.

Grosvenor drew a big crowd, and justly so.  My friend and former piano teacher P liked his Bach the most, the Mozart not so much.  I was the other way around: I loved how he made a lot of variations in the rather spare texture which to me came out as  solo and tutti sections as in a concerto.

At the end of the Ravel, Albert Landa (prominent Sydney pianistic identity) jumped in early and alone with very loud clapping.  I wish he could have waited a little longer.  We all knew it was good. BG was visibly bemused.   I felt bruised.  And then AL walked out before the encore!

After the initial rush at the beginning of the year, I am hearing of same-sex marriages amongst my acquaintances.  D has been a witness at a female one.  He had to return for a re-signing because the paperwork the celebrant provided needed to be replaced by forms with gender-nuetral “Spouse 1” and “Spouse 2.”

Amongst older, long-established couples, a reason often offered for taking the leap has been the advantages conferred in the face of possible health emergencies, including when travelling.  At Angel Place  one such couple told me they were getting married at home the next Saturday.

One of them first married many years ago, in Brisbane.  Max Olding was his piano teacher and a very young Dene Olding played at the wedding.  It would have been fun, I thought, if Dene could have been engaged again, even if something more than orange juice and biscuits might have been asked as a fee.

My thoughts, exactly

December 7, 2017

not youOr almost,

on watching Malcolm Turnbull at the end of a gruelling (for us) day of pointscoring and futile amendments – some of which Turnbull voted for and none of which he voted against – celebrating with his rictus grin the outcome of the final substantive vote for marriage equality as if it were a triumph for him.

Taken from a comment in The Guardian:

Any one of those amendments debated / filibustered over the last few days would have sent the Marriage Equality bill back to the Senate. It would almost certainly have delayed the passing of the Bill until at least February, giving opponents time to regather and continue the fight. This is what the Nationals and most “Liberals” wanted. That is what Malcolm supported.

Now Malcolm wants to join the party. Well (vomit emoticon) to you.

Memo to the “Liberals” (with a few honourable exceptions): You lost. There’s no place on the winning bandwagon for you. So don’t try to to crash the party. Don’t try to claim credit. No one except your media boosters are listening.

One such media booster is Mark Kenny in the SMH, who starts out:

Like it or not, history will show it was Malcolm Turnbull – a Liberal Prime Minister – who presided over a renovation of the nation’s outdated marriage law.

One might have expected such a modernisation to emanate from the left.

Look, Mark, it did emanate from the left. Sure, it was slow, but once the ALP got to a free vote in 2012, the obstacle was those in control of the coalition denying their own members one.

Kenny continues:

His [Turnbull’s] backflip to champion Tony Abbott’s much-loathed plebiscite and subsequent embrace of Peter Dutton’s benighted postal survey, had quickened his poll slide among middle Australians. But these same Australians would later participate in Dutton’s survey in droves.

That really made me mad.  If Turnbull really thinks that participation in the postal survey signifies approval for it as opposed to a pragmatic acceptance through gritted teeth of no real alternative, he’s going to be surprised at the size of the stick that quite a lot of voters will be waiting for him with at the next election.

 

 

Don’t read the comments

September 26, 2017

One night last December, Jaden Duong drove a rented van to the premises of the Australian “Christian” Lobby (ACL) in Canberra.  In the van were four LPG gas cylinders.  There was a fire/explosion, causing substantial damage to ACL’s offices.  It can’t have taken the police long to find Duong – suffering severe burns, he had walked 4km or so to Canberra Hospital.  He told police he had been trying to kill himself.

Lyle Shelton, the head of ACL, rushed back from his holidays.  He tweeted that he was shocked that things could come to this in Australia.  There was more about how violence was being incited against ACL by opponents calling ACL bigots etc.

Police, who had spoken to Duong, hastened to reassure the community that they were satisfied that this was not a terrorist incident.  The basis for this appears to have been their own assessment of Duong and his statements to them that his primary motive had been to kill himself and that the choice of location was subsidiary – though in fact there was some material pretty early on which indicated that Duong was unhappy about organised religion and ACL.

Duong spent some months in hospital (including for mental issues) in Sydney.  It wasn’t until June 2017 that he first appeared in court and his identity was disclosed to the world.

Straight away, what the Chinese call the “human flesh engine” got to work.  They were interested in depicting Duong as a “SJW” (that’s “Social Justice Warrior”) at whose hands ACL were being victimised.  They wanted to establish that the ACT Police were giving Duong a soft ride.

Duong had spent some time in San Francisco in about 2014 when his partner was working there.  He did some volunteer work for democrat politicians and a cat shelter; he appeared in a gay fundraising Mr Gay Asian and Pacific pageant; he welcomed the striking down by the US Supreme Court of the Defence of Marriage Act.  It looks as though he was doing volunteer work because as a gay partner he couldn’t get a working visa.

Back in 2003 or so Duong had also made a comment about gay law reform which was published in the SMH.

That’s about it, but on the strength of this the Murdoch press followed up this narrative, describing Duong as a “gay activist.”

If you find opinion pieces by someone, even if only 2 over 15 years, I guess you could say they are an activist.  Much as you might say someone who writes for News Limited/News Corp is a journalist.

Here’s a sample of the Catallaxy forum  from 7 June when Duong’s name was first released and the human flesh engine unleashed. Leigh Lowe is a particular charmer.

Look, let’s not jump to conclusions.
It could be that the court might just be trying to spare Duonger some embarrassment.
Maybe he was found in leopard print leggings with red stilettos or some other ghastly ensemble that any self-respecting poove wouldn’t be (cough) found dead in.

And picking up on this found material:

Jaden Duong, an Australian living in San Francisco, welcomed the high court’s decision on DOMA.
“My partner’s here in the U.S. for work,” he said. “I’m here on a tourist visa indefinitely because of DOMA. Now they have to recognize us … which means his work visa includes me.”

LL said:

Jaden (WTF?) appears to be front and centre everywhere.
The volunteer work is explained by the fact that his partner was in the US for work.
I wonder if the partner had a gummint posting? If so, if he is hooked up with someone who tried to commit a terrorist act, both Duonger and the partner may appear on DHS watchlist, and both may be banned from travelling to and working in the US.
Just wait for some screaming fag to bung on a Mem Fox if detained at an airport and you night have your suspected boyfriend.
Look, I am prepared to acknowledge the possibility that … and I know this sounds crazy … that Duonger was a common-or-garden drama queen, who was approaching (OMG!) his 40th birthday, maybe had a series of failed relationships in quick succession, and decided to top himself.
It’s just that blowing yourself to bits in a van doesn’t scan like a typical drama-queen suicide MO.
Whatever, there is no excuse for brushing it under the carpet. The AFP’s rush to call “nothing to see here” whilst the Duonger hadn’t even been interviewed is suspect to say the least.

Jo jumped on the wagon:

jo

Leigh Lowe
#2404865, posted on June 7, 2017 at 3:23 pm

Sorry ..
“ring wear” should read “ring to wear”.
sorry.
Won’t happen again.

A lefty in San Francisco will have plenty of “ring wear”.

Another scintillator referred to “tontine fanging.”  (Geddit?)

Duong had another court date in August and then last week.  Each date was the occasion of a fresh dose of the Newscorp treatment describing him as a gay activist.  Duong pleaded not guilty on account of mental impairment.  It’s clear that police (who despite the Newscorp and altrite commentary, are not softies about this sort of thing) recognized Duong had mental difficulties.  The Murdoch press trawled through court papers and snippets of remarks in the hearings to build up the contrary picture, in simple terms, that Duong was bad, not mad, or at least bad enough and not mad enough to be responsible.

On Sunday Duong, aged 36, was found dead.  There were no suspicious circumstances.

It is very very sad.

 

 

 

I was there

September 11, 2017

Yesterday at D’s insistence and with him I did my part and went to the marriage equality rally in town.  There was a festival atmosphere on the train as we headed in with about 15 minutes to spare before the advertised start of 1 pm.

The last demonstrations I went to were the marches that broke many Australians’ heart – the big ones in 2003 against the invasion of Iraq.

The worst thing about such rallies is that practically every member of the organising coalition, and then a few more, has to have someone up there giving a speech.  This can really try one’s patience.  There is also the problem that in such a coalition on one issue, people will want to push the envelope out to the corner of their particular concerns.  Mostly I was with them at every corner and suspicious bulge to the package, but in the light of the “No” case campaigners’ attempt to make this postal opinion poll about every other issue than marriage of people not of a different sex, it would have been prudent, in my opinion, to keep things tight.

Bill Shorten gave a speech where he managed to reference “Climb Every Mountain,” “You’ll never walk alone,” the parable of the Good Samaritan and the St Crispin’s Day speech (those not here today will wish they were and say they were.)  There were probably more references that I missed.

So we stood out the speeches and after a longish wait to decant from Town Hall Square, headed along Park Street, Elizabeth Street, Phillip Street, Bridge Street and Young Street to Circular Quay where we were told Pauline Pantsdown had taken the stage in front of Customs House.  We didn’t actually see her as the square was pretty much full to capacity and we took the opportunity to catch a train home while we still could – just after 3.30.

It felt like a big rally to me so I was a bit peeved that it only ranked No 3 in the evening news. In some cases the rally was coupled with coverage of Malcolm Turnbull attending his own tame (I doubt if a single non-coalition-apparatchik gay person was in attendance) Liberals & Nats forum for the Yes campaign. As if Malcolm’s do was in any way comparable to tens of thousands of people on the streets.  Also a bit rich and doubtless calculated of him to hold it on this day.

I found myself immersed in a terrible emulatory hardness of heart waiting for “our” story to reach the screen: how dare those pesky Hurricane Irma types (No 1, though with predictably much more attention to the yet to suffer Floridians than the already devasted Cubans and Martinians) or Mexican earthquake victims vie with our just cause for attention?

There were lots of colourful costumes. My favourite was more subtle – a t-shirt in the style of an old pale blue Penguin paperback cover worn by a gent, about my age.  The book title?   An Ideal Husband by Oscar Wilde.

 

 

Conundrum 2

July 27, 2017

I’s taken me a while, but back to [2017] NSWSC 666.

You will recall that GS, a pharmacist who had been generous to many or at least relaxed in his attitude to recovering monies lent to many, died suddenly aged 65, survived by his two nieces, AC and CC, in whose favour an informal will was found.

OY disputed the validity of the will. He said he was GS’s surviving de facto partner. OY said this relationship, of many years’ standing, had been a secret.

Obviously there must have been some kind of a relationship between GS and OY. GS had advanced substantial sums of money to OY- well above the other amounts known to have been advanced by him to others – and he had given OY the means and authority to conduct his bank accounts.

To me, as a gay man, OY’s claim of there being a sexual relationship is a plausible one. On reflection, perhaps that is putting it too simply. To me it is plausible that, if there was a sexual relationship, it would have been conducted in complete secrecy in the way that OY alleged.

On the other hand, it is very easy to make up a story about someone who is dead. A court must scrutinize carefully any claims of dealings with deceased persons and especially where those claims rest entirely on the word of the surviving person who makes the claim.

Lawyers often talk about whether one judge or another is a good “draw” for their client. This preserves what in some ways must be a legal fiction, that there is some random process of selection of which judge hears a case. Often it may be that the selection of a particular judge from those available is a matter of chance, but the selection of judges itself is clearly far from being so.

In any case, it doesn’t look as Justice Slattery was a very good draw for OY. As he said at paragraph [28] of his reasons for judgment:

The Court soon began to doubt [OY]. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with [GS]. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms [SK], into believing he was not with [GS] at night. His story of lying to his first wife is barely worthy of credit. But the fact that [OY] was prepared to parade such studied trickery carries its own significance. Why would one who shamelessly avowed deceit of a spouse, not practise deceit on this Court?

When I first read this, I thought “Whoah!” There seemed to be a kind of paradox  – a variant on “all men [sic] are liars” – in this case, “all closeted gay men are liars.” So is no self-confessed closeted man to be believed?

What Slattery J found “barely worthy of credit” (credit here means worthiness of being believed rather than reflecting well on the teller) was OY’s claim that he used to go to a gambling club before leaving without placing a bet to spend time with GS.  OY said he did this so that he could produce the ticket to his then wife (who had already complained that he saw too much of GS) as, in effect, an alibi.

Slattery J didn’t accept this.  I’ve inserted in bold the numbers for his reasons:

[211] (1) First, it is difficult to accept that [OY] could have kept up this pretence for years, when he claims his visits to the deceased were regular. (2) Secondly, his claimed alibi was unstable. Other people frequented the same club and would have been able to see that [OY] had left to go elsewhere. (3) Thirdly, such an alibi was likely to create quite separate domestic concerns: that he was gambling away the family’s money. He sought to answer that threat by explaining that this poker club was not one where gambling for money occurred. But that does not meet the problem that to a person being shown sign-in slips at a gambling club it may not have looked that way. (4)Finally, [OY]’s case of arranging regular assignations with the deceased behind his first wife’s back infers that the deceased was complicit in this deception. How else could the deceased believe that a married [OY]t could spend so much time with him?

[212] (4A) But that is not consistent with the deceased’s character.  All the evidence about the deceased points to a man who  (4A1) had an open and friendly nature, (4A2) had deep moral feelings and religious scruples especially about his sex life, (4A3) maintained warm relationships with family and friends and (4A4) had never been involved in fraudulent activity. But [OY] seemed comfortable to accept that the deceased was as dishonest as he was in conducting this relationship.

That’s a lot of reasons. Maybe 2 is the best, were it not that many affairs are conducted under cover of equally risky alibis.  My own skepticism would be of the elaborateness and consistency of the claimed ruse rather than its fragility – why not a variety of garden husbandly lies?   3 assumes OY’s wife did not know/believe that no money was gambled at the club.  I don’t think I would be as ready as Slattery J is to take 1 and 4 (4A4 in particular is a stretch – how can you prove such a negative?) as from the start tending to preclude the truth of OY’s account.

There’s a lot more in the judgment and the judge had plenty more reasons to which I find myself without the energy to do justice.  The thing is, unlike the rest of us who can afford a Marabar-caves sort of indeterminacy, he did have to make up his mind. That’s his job.

From which you’ll probably realise that Justice Slattery totally dismissed OY’s claim, and upheld CC’s claim for repayment of all monies paid to or taken by Okan, with interest.  OY’s story was just that: the story OY had to tell if, following GS’s sudden death, he was to avoid having to repay the money he had already received from GS and hang on to the money he opportunistically grabbed by continuing to use after GS’s death his capacity to operate GS’s accounts. That OY had obtained monies on such a scale and authority to operate GS’s accounts in this way was not to be attributed to any sexual relationship between them, but rather that (at [312]) OY was an “intuitive and manipulative individual” who well understood and was close enough to take advantage of GS’s generosity.

So much (so far as the monies obtained by OY and his company in GS’s lifetime were concerned) for any credit in heaven which GS professed a hope to attain on account of funds unrepaid at his death.

Nieces and intestacy

Why, asked CC (rhetorically), would she seek to forge a will as OY claimed she had when, as GS’s nieces, she and AC stood to benefit anyway under what looked like otherwise being intestacy?

It is possible that this emerged during submissions as a result of a remark by the judge himself.  As he said at [688]:

the Court did raise the hypothesis in submissions that [GS]’s nieces would take on [GS]’s intestacy. But in the course of preparing these reasons it is clear that hypothesis was based on an erroneous assumption as to the present State of New South Wales law at the time of the deceased’s death. The nieces or nephews of an intestate in New South Wales have no entitlements; the State of New South Wales would be entitled to his estate: Succession Act, Parts 4.3 and 4.5.

I think his Honour’s first instincts were better than his afterthought.

This is the contents page to parts 4.3 and 4.5 of the Succession Act (part 4.4 deals with indigenous families) to which his Honour refers:

PART 4.3 – DISTRIBUTION AMONG RELATIVES
Note

   127.    Entitlement of children
   128.    Parents
   129.    Brothers and sisters
   130.    Grandparents
   131.    Aunts and uncles
   132.    Entitlement to take in separate capacities

   PART 4.5 – ABSENCE OF PERSONS ENTITLED

   136.    Intestate leaving no persons entitled
   137.    State has discretion to make provision out of property to which it becomes entitled

If you go by the contents listing alone, there is no section which, going by the headings, deals with the entitlements of nephews or nieces.  However, section 129 is as follows:

129 Brothers and sisters

(1) The brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves:

(a) no spouse, and

(b) no issue, and

(c) no parent.

(2) If no brother or sister predeceased the intestate leaving issue who survived the intestate, then:

(a) if only one survives-the entitlement vests in the surviving brother or sister, or

(b) if 2 or more survive-the entitlement vests in them in equal shares.

(3) If a brother or sister predeceased the intestate leaving issue who survived the intestate:

(a) allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and

(b) the presumptive share of any such deceased brother or sister is to be divided between the brother’s or sister’s children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child’s presumptive share is to be divided between the child’s children (again allowing for the presumptive share of a grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.

If I am reading this aright, contrary to his Honour’s observations, nieces and nephews (and for good measure any intersex children of siblings) do have entitlements under intestacy in the event that their parents had an entitlement but predeceased the intestate person.  Siblings have an entitlement if a person dies without parents, spouse or issue.

If GS died without leaving a will, under s 129(1), GS’s parents having predeceased him and he dying single and childless, his brother would have been entitled to the whole of his estate. GS’s brother having predeceased him, under s 129(3)(b), that brother’s daughters, ie, AC and CC,  his nieces, would have been entitled to share that brother’s presumptive share equally.

Postscript

In response to a complaint from GS’s family,  understandably aggrieved that his name has been dragged through the mud of accusations by OY which have been proven to be false, I  have removed GS and OY’s names from the body of this post and the previous post on this case.  I have also scrubbed any identifying names from the comments to that post.

Post post script

Meanwhile the case has gone on, including a pretty furious (and dismissed) application by CC that OY’s solicitor and barrister pay her costs.  As a lawyer myself, I hate that sort of application – I suppose out of self-interest.  The application was dismissed basically on the grounds that it was not up to OY’s solicitors and counsel to prejudge the truthfulness of OY’s instructions to them.  See [2019] NSWSC 584 at [47] and [48}.

You might have thought that, as a barrister herself, CC could have recognized this before bringing the application.

The judgment also deals at [118] to [137] with an eyebrow-raising aspect of conduct of the case by CC which put OY unnecessarily to additional costs, though not (so his Honour had already held in the main trial when the issue was raised in relation to CC’s credibility) deliberately.  CC incurred an adverse costs for this, though not (because not deliberate) on the indemnity basis.

 

 

 

A conundrum

July 9, 2017

Maybe we are all unusual people, if you can only look closely enough, but GS, who for many years conducted a pharmacy in Sydney’s south west,  must have stood out.

From the late 1980s, GS, who graduated as a pharmacist in 1973 when he was about 25, owned and ran a pharmacy at XX.  GS never married and you’d have to say that the pharmacy really must have been his life.   He befriended many of his customers, including the local “down and outs” from the caravan park nearby whom he would often invite in after hours to spend time with him after the pharmacy had closed.

GS was the “go to” man amongst his fellow shopkeepers at XX for making up a float at the start of the trading day.  He lent many people money, but if they didn’t pay him back was apparently content to leave that as something which would rest on their consciences or probably souls (he was devoutly religious) if they failed to repay him.  He told a friend “If I die and they owe me the money maybe God will put that in my credit to cover my sins.”

GS was a heavy smoker, and it seems that other aspects of his shopkeeping lifestyle were quite unhealthy.  In 2013, aged 65, he died suddenly at the pharmacy.

GS’s older and only brother, his father and his mother had predeceased him in 1980, 1979 and 1992.  He was survived by AC and CC , his brother’s daughters.  GS had told his nieces that they would find a will in his house.

GS had lived since 1983 in a house in Strathfield first owned by his father and later by him.  He was a bit of a hoarder.  His nieces and family friends set about tidying things up in the hope that the will would surface in the process.

A document later admitted to probate as a informal will was found in George’s bible (which was on the table next to his bed), folded around an old photo of AC and CC.  This appointed CC (who is a barrister by profession) as his executor and left GS’s estate of about $6 million to her and AC equally.

But there was another claimant.

OY claimed he had met George in 1999 when OY was 17 and GS about 51.  OY said he had been in a sexual relationship with GS from that time and was in a de facto relationship with GS at the time of GS’s death.  OY said that the document found in the bible must have been planted there and was not a will.  He said that probate of the will should be revoked, in which case (on his contentions) he would take the entire estate as de facto “widower” on intestacy.

As a fall-back OY claimed family provision on the basis of his asserted relationship with GS.  As a fall-back or parallel claim to that, OY also said that money which he had received from George in George’s lifetime was a gift rather than money that OY had to pay back. This was about $386K less payments by OY or his company in GS’s lifetime of about $82K – a net amount of $304K.

OY had also taken money out of GS’s accounts after GS’s death using means of operating these accounts which GS had given him.  Even if you are authorised to take money from someone’s accounts while they are alive, that authority ceases on their death and any money taken out after usually has to be repaid to the estate.  One way or another (as the heir on intestacy or by means of provision in a greater amount) OY sought to resist having to repay these post-mortem amounts, of about $206K.  OY had made a further $7-8K of withdrawals from GS’s accounts which were reversed by the bank when it stopped the account at CC’s request.

AC and CC knew about OY, because in 2011 GS had told them that he had lent upwards of $100K to OY for a tyre business on Canterbury Road in Lakemba.  AC and her husband had visited the business and met OY not long after that.  You could not blame AC and CC for feeling some disquiet about this, let alone about the full picture which came to light after GS’s death, not only of the substantial amounts which had passed in his lifetime, but also the post-mortem withdrawals from his accounts.

But OY’s claim of a 14-year homosexual relationship with their uncle came as a complete shock to them.  As far as they were aware, although unmarried, GS had had a number of girlfriends in his life.  There was a bit more mystery over the circumstances in which GS had harboured in his home from 2005 to 2008 a (since deceased) married mother-of-five sex worker with a drug problem whom he had met on Canterbury Road.

To CC and AC OY’s claims were not only a shock but a calumny.

OY for his part maintained that his relationship with GS was secret for cultural reasons.  (OY’s cultural background is Turkish; GS’s was Greek.)  He rubbed salt in to the wound (so far as AC and CC were concerned) by claiming that GS was dismissive of and said disparaging things about them.

By the time the matter came to trial, it emerged that if OY was telling the truth, he had his own cultural reasons for keeping his relationship with GS secret, including two marriages of his own.  For good measure, witnesses claimed that even when married he was seen consorting with other women.

There was no evidence from anyone, even OY, of either GS or OY having any other same-sex relationship.

The matter was heard over 21 days in early 2016 before Justice Slattery. It took his Honour over a year to deliver his decision:  [2017] NSWSC 666.

That seems a long time, even if his Honour was off on leave for some of it, though the reasons are certainly lengthy.

If you’re the kind of person who likes to skip to the end of the book to find out the ending, or to look up the endings of TV serials on the internet (I am that kind of person) you can find out more there. Otherwise, you’ll have to wait until I have the energy to write another post.

Postscript:  May 2019

In response to a complaint from GS’s family, I am pseudonymising this post and the further post on this subject .

In  December 2018 OY was convicted in the District Court of fraud.  It’s not clear to me what exactly this was for: I presume at the least it was for withdrawals made by OY without authority from GS’s account after GS’s death.

Forty years on

June 5, 2017

On Saturday night I went to a reunion of my year from high school.  This was a “back to school” day where you could watch the football matches of the day, have a tour of the classrooms and facilities, and then have dinner.  I just went to the dinner.

The school is a boys private school.

In my time boarders made up about an eighth of the students – less by the end. Lessons seemed almost a sideline: the sociopathology of the school was overwhelmingly sport, played on Saturdays against other schools.  Rugby was the dominant winter sport.  In the junior age groups (13, 14, 15, 16) teams went down to “G.”  In summer, cricket and rowing shared the crown.  Tennis and swimming were outliers.  Soccer (as we called it then) and basketball were introduced under sufferance for winter and summer respectively.

Instead of an elected school captain, we had an appointed senior prefect – invariably a prominent athlete and cadet under-officer and usually at least reasonably academic. Once a king or queen in Narnia, always a king or queen. The same goes for senior prefects – he has sent out the invitations for reunions in previous decades and did so again this year, though with the assistance of the school which by now has become very organised in its alumni relations.

Email and the internet make this sort of thing much easier than it would once have been.  Starting a few months ago there has been a flurry of emails as far-flung ex-schoolmates hit the “reply all” button announcing their intention or inability to attend and the odd broadcast reminder seeking missing contact details.

I did not respond to these.  At these reunions, it is the sporty element and boarders who are best represented.  A circulated list of those who had accepted to date confirmed this prospect. Few of the people I had much in common with were on it.

Then a “reply all” from an unlikely source mentioned me.  I havered right up to the last moment, then took the bait, making the necessary payment on the Thursday just before.

On the night we were about 50 out of a year which started with about 150 boys in first form and ended up with about 125 at the end of year 12.

I don’t know if we ever had a ten-year reunion.  I went to a twenty-year one in 1997.  That was the first time I saw my school fellows as a group as adults.  For me the chief interest was the small group of people (including myself) who had turned out to be gay.  Even then, not all of them chose to make any general declaration about that.  We formed a little quasi-masonic secret society for the night.

I remember some of our little sub-lodge as having a miserable time at school.   It never really occurred to me that any of them might be gay.  It was sufficient explanation for their plight that they were not sporty.

I don’t even recall having any particular theory about NH, a singer and dancer who went on to make a career around the world, though perhaps subliminally I did.  I shed a tear on hearing of his death some time in the 90s and I still remember him for both his beauty and his sweet disposition.

Seven other members of our year have died since we left school, so far as is known.

This time I was “the only gay in the village.”

The noisy sporty ones behaved pretty much as I expected.  Rowers were the hardest-core.

It wasn’t a night of many revelations or long-deferred denouements.  Those mostly happened 20 years ago – apart from the news in the meantime that a he (not one of the gay group) has become a she.

Nevertheless I’m still feeling a little shaken up, without being able quite to identify why.  Maybe it is just a matter of reverberance, a milestone passed, and the reminder when seen together of how old we are and are becoming, forty years on.

 

 

 

Angry

March 5, 2016

Homosexuals demand the right to work!

When, about 10 years ago, the push for marriage equality first emerged, the “establishment” gay and lesbian rights groups such as the NSW gay and lesbian rights lobby were caught on the hop. They were still focussing on substantive and de facto equality. It’s not as if they weren’t opposed to John Howard’s (with the ALP’s complicity) entrenchment of inequality by the amendment of the statutory definition of marriage (which would preclude any judge-made evolution of the definition of marriage at common low), but at that time gay marriage seemed like a symbolic and aspirational goal when there were so many other changes needed. Why try to run before you can walk?

That was my view, too. The most urgent need in gay rights was to improve the situation of gay adolescents in their high school years. That was based on my own experience at school and also as a teacher – experiencing homophobic abuse myself and witnessing the plight of the more obviously effete in the boys’ school where I taught for a bit over 10 years.

In your adult life, you can to an extent determine your social environment. You can seek out like-minded friends and to that extent protect yourself from direct abuse, though there remain some workplaces which are best avoided. It’s not that that prejudice against gays and lesbians (let alone (btqi people) does not exist, but abuse is rarely directed to your face except from strangers in public places.

School, however, is a bit like prison; it is a place you are forced to be by virtue of compulsory education, with company not of your own choosing. The same applies to your family whilst you are still a child/teenager. If there were any doubt about how tough adolescence is for gay [shorthand here] people, the statistics for youth suicide make the situation plain. And who can doubt that this trauma has a lasting effect into adult life for many?

But formal equality – where the availability of same-sex marriage is the great hold out, is also important – even if, in most respects, same-sex partners can arrange their affairs to achieve de facto equality. Even then such de facto equality is not even de facto equality because you have to take those steps. What it’s about is R.E.S.P.E.C.T..

Progress for LGBTIQ requires a pincer movement: on the one hand, the on the ground things like improving the plight of young LBGTIQ people; on the other, the higher order symbolic changes, like marriage equality.

That’s confirmed when the Tony Abbotts of this world obviously see things the same way, from the opposite point of view.

In part what they are reacting against, in the latest nasty political bout against the “Safe Schools” program is the fact that even anti-bullying requires higher-order attitude changing.  You don’t change the situation for kids in a school by saying “don’t bully [x] or [y]’ where X or Y are the specific children being bullied – although you also have to do that sometimes.  You have to change the children’s attitudes to the sorts of people that [x] and [y] are – create a more tolerant atmosphere generally.

That’s just what the reactionaries – truly, the homophobes – don’t like.  And we see it coming out in the arguments mounted against gay marriage/marriage equality, all about children when of course regardless of whether their parents are married or not there already are and will continue to be children with same-sex-partnered parents.

Right now I can’t be bothered spelling out more.  It makes me so angry.

I’ve used the picture above before.  In fact it’s of my elder sister in her Socialist Worker’s Party phase.   I’ve not asked her if she got up in time to go to the morning march and as she was a musician it seems unlikely to me.  But she was at the original 1978 Mardi Gras parade and a band she was in played at the first party in 1980.  Earlier this year she mentioned to me that the police violence was so unpleasant that it was 20 years before she could bring herself to take part in any demonstration/rally/march.