Archive for the ‘law’ Category

EF

December 3, 2018

In breaking news, the Victorian state government has announced a royal commission into the affair of “Informer 3838.”

This follows the publication, after a short delay, of the High Court’s decision on 5 November in AB (a pseudonym) v CD (a pseudonym) EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58.

The background is succinctly summarised in the first paragraph:

Early in February 2015, the Victorian Independent Broad-based Anti-corruption Commission provided to the Chief Commissioner of Victoria Police (“AB”), and AB in turn provided to the Victorian Director of Public Prosecutions (“CD”), a copy of a report (“the IBAC Report”) concerning the way in which Victoria Police had deployed EF, a police informer, in obtaining criminal convictions against Antonios (“Tony”) Mokbel and six of his criminal associates (“the Convicted Persons”). The Report concluded among other things that EF, while purporting to act as counsel for the Convicted Persons, provided information to Victoria Police that had the potential to undermine the Convicted Persons’ defences to criminal charges of which they were later convicted and that EF also provided information to Victoria Police about other persons for whom EF had acted as counsel and who later made statements against Mokbel and various of the other Convicted Persons. Following a review of the prosecutions of the Convicted Persons, CD concluded that he was under a duty as Director of Public Prosecutions to disclose some of the information from the IBAC Report (“the information”) to the Convicted Persons.

That’s all very hush-hush, isn’t it? Surely the identity of the Chief Commissioner of Victoria Police and the Victorian Director of Public Prosecutions can’t be that much of a secret?

EF, of course, is another story.

CD’s intention set the cat among the pigeons, though it took a while for the wheels of justice to grind into action. To cut a long story short, in mid to late 2016, EF and AB appied to the Victorian Supreme Court for injunctions restraining CD from passing on the relevant information to the criminals in question. Ginnane J knocked them back in June 2017 (1) (2). On appeal, the Victorian Court of Appeal knocked them back in November 2017. The police and EF obtained special leave to appeal to the High Court in June 2018, which has now also knocked them back, unanimously revoking the grant of special leave.

The basis of the revocation was an acceptance by the High Court (on the police’s say-so rather than EF’s) that EF could be adequately protected by the Victorian Police. In that case, the need to uphold the integrity of the criminal law system (to which EF’s conduct and the police’s conduct in encouraging and exploiting her in it is a scandalous and outrageous affront) trumped any other bases on which EF’s identity as a police informant was entitled to be kept a secret.

All of these proceedings were conducted in camera.

Obviously, Mokbel and the various convicted persons will know straight away who EF is.

I know nothing about Victorian criminal lawyers, but it took me about 5 minutes to make a pretty good guess. And if I’m right, then there’s enough information out there already about EF for Mokbel et al to at least suspect that EF was working with the police. I suppose they might have thought she was working with the police for them. (See comments here: in truth the cat must well have been not only among the pigeons but out of the bag a good 4 years ago.) It’s not as if such characters are above acting on a mere suspicion.

Nevertheless, the court has made orders prohibiting the disclosure other than in specified exceptions of “the real name or image of EF in connection with these proceedings” and the proceedings below until 5 February 2019. Presumably that is to give EF a head start should she decide to go into witness protection and (I surmise) the state an opportunity to act if she declines to do so and her children need to be taken away from her so that they can go into protection.

It’s a murky world out there. I hope that EF and her children escape reprisal. Meanwhile, she and the police have surely made life more dangerous for other lawyers and their families in the future.

Suing Gina Rinehart- an update

November 7, 2018

Under the title Deep Pockets, I have been maintaining now for some years a post which endeavours to keep track of developments in the long-running dispute between Gina Rinehart and some of her children.

The latest instalment in this saga, listed in my chronology as number 52, is an interlocutory decision delivered by Justice Brereton on 5 November 2018 on a notice of motion which was first brought by Bianca in September 2015 after, following orders made in May 2015 that Bianca replace Gina as trustee of the family trust, Gina failed to deliver all of the trust documents to Bianca.

Since nobody clicks on the links, this is what I have written there about the latest decision:

52.   (5 November 2018) Hancock v Rinehart (Trust documents)[2018] NSWSC 1684

This was a notice of motion filed on 3 September 2015.  Paragraphs 4 to 17 of Justice Brereton’s reasons for judgment are devoted to  its “labyrinthine procedural history.”  Suffice to say that considerable parts of that history are unsuccessful rearguard actions mounted by Gina and her camp, including 38A, 41, and 42 above, though some of the intervening delays involved documents belatedly produced or discovered in the hands of third parties.  Submissions finally closed in August 2017.

After mulling over it for a mere 15 months, Justice Brereton determined that Mrs Rinehart had not handed over all of the trust documents which she was ordered to hand over on 28 May 2015, and that she should be required to swear an affidavit verifying her production in terms of his decision as to what should and what need not be handed over, which she could at least potentially be cross examined on at a later date.

That would be a first for Gina or close to it: the beauty of being a very rich person is that you never actually have to do anything yourself.  Everything can be attended to by others who will do what you want and tell you as best they can what you want to hear whilst shielding you in many cases from direct scrutiny.  Even now, the scale of the task of identifying and producing trust documents to the new trustee is such (though I wonder maybe not so much as is claimed involves  the identification of documents as opposed to the vetting of documents to see whether they might be withheld) that if cross examined Gina could presumably palm the responsibility off on some minion, at least so as to avoid any direct censure.

As it was, Brereton J did not  find that Gina had deliberately withheld documents  or that there was an absence of good faith in her compliance with the orders (see [101]).  That’s the beauty of all that expensive advice and arguable though ultimately unsuccessful grounds for withholding them. Nor was he prepared to find that Gina had acted so unreasonably (once again, there were arguable points) so as to attract the sanction of an order for costs on an indemnity basis.

 

Just to put this in context:

  • the proceedings commenced in September 2011, triggered by the proposals advanced by Gina on the eve of her youngest child’s twenty-first (maybe twenty-fifth, whichever was the one significant for the passing of trust interests to all of the children) birthday;
  • In October 2013, when an actual trial was imminent, Gina’s counsel announced that she no longer wished to continue as trustee of the trust – though it was evident that she still affected to jump rather than be pushed and wished to play a part in the selection of her replacement.  – I have called this a “Clayton’s capitulation.”
  • In mid-2014, there was a contested hearing on who should be the replacement trustee;
  • In May 2015, Brereton J published his decision that Bianca be the new trustee.

That is only one strand of the multiple fronts on which this dispute is being fought.  On another front, Gina’s victory on appeal to the Full Federal Court that proceedings brought by Bianca alleging breach of trust by her in siphoning off various mining interests from the trust should be referred to arbitration has been appealed by Bianca and is set down for hearing on 13 November 2018.

The “Deep pockets” that I had in mind in my main post on this topic were obviously Gina’s.  It is a scandal, hardly unique to this case, that deep-pocketed defendants’ rearguard actions, even when ultimately unsuccessful, are so rewarded, without even the censure of indemnity costs.   It doesn’t help that judges are busy people and decisions (reasons must be prepared carefully because an appeal on any arguable point is almost inevitable) are such a long time coming.

 

 

Internecine shenanigans

April 30, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further, as Robb J put it (at [63]):

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

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

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

 

 

 

 

 

Grinding slow

April 24, 2018

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

How could the wheels of justice grind so slow?

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

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

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

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

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

Medich applied  for the trial to be permanently stayed.

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

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

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

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

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

UPDATE, 23 May 2018:

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

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

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

The first trial finally ran from January to April 2017.

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

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.

 

 

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.

 

 

 

 

Conundrum 2

July 27, 2017

I’s taken me a while, but back to Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666.

You will recall that George Sclavos, 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, Anna and Cleopatra, in whose favour an informal will was found.

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

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

To me, as a gay man, Okan’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 Okan 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 Okan. As he said at paragraph [28] of his reasons for judgment:

The Court soon began to doubt Mr Yesilhat. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with George. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms Susan Katri, into believing he was not with George at night. His story of lying to his first wife is barely worthy of credit. But the fact that Mr Yesilhat 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 Okan’s claim that he used to go to a gambling club before leaving without placing a bet to spend time with George.  Okan 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 George) 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 Mr Yesilhat 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 Mr Yeslihat 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, Mr Yesilhat’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 Mr Yesilhat 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 Mr Yesilhat 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 Okan’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 Okan’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 Okan’s claim, and upheld Cleopatra’s claim for repayment of all monies paid to or taken by Okan, with interest.  Okan’s story was just that: the story Okan had to tell if, following George’s sudden death, he was to avoid having to repay the money he had already received from George and hang on to the money he opportunistically grabbed by continuing to use after George’s death his capacity to operate George’s accounts. That Okan had obtained monies on such a scale and authority to operate George’s accounts in this way was not to be attributed to any sexual relationship between them, but rather that (at [312]) Okan was an “intuitive and manipulative individual” who well understood and was close enough to take advantage of George’s generosity.

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

Nieces and intestacy

Why, asked Cleopatra (rhetorically), would she seek to forge a will as Okan claimed she had when, as George’s nieces, she and Anna 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 George’s nieces would take on George’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 George died without leaving a will, under s 129(1), George’s parents having predeceased him and he dying single and childless, his brother would have been entitled to the whole of his estate. George’s brother having predeceased him, under s 129(3)(b), that brother’s daughters, ie, Anna and Cleopatra, his nieces, would have been entitled to share that brother’s presumptive share equally.

 

 

 

 

A conundrum

July 9, 2017

Maybe we are all unusual people, if you can only look closely enough, but George Sclavos, who for many years conducted a pharmacy at Leppington must have stood out.

From the late 1980s, George, who graduated as a pharmacist in 1973 when he was about 25, owned and ran a pharmacy at Leppington (near Campbelltown).  George 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.

George was the “go to” man amongst his fellow shopkeepers at Leppington 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.”

George 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.

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

George 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 Anna and Cleopatra.  This appointed Cleopatra (who is a barrister by profession) as his executor and left George’s estate of about $6 million to her and Anna equally.

But there was another claimant.

Okan Yesilhat claimed he had met George in 1999 when Okan was 17 and George about 51.  Okan said he had been in a sexual relationship with George from that time and was in a de facto relationship with George at the time of George’s death.  Okan 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 Okan claimed family provision on the basis of his asserted relationship with George.  As a fall-back or parallel claim to that, Okan also said that money which he had received from George in George’s lifetime was a gift rather than money that Okan had to pay back. This was about $386K less payments by Okan or his company in George’s lifetime of about $82K – a net amount of $304K.

Okan had also taken money out of George’s accounts after George’s death using means of operating these accounts which George 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) Okan sought to resist having to repay these post-mortem amounts, of about $206K.  Okan had made a further $7-8K of withdrawals from George’s accounts which were reversed by the bank when it stopped the account at Cleopatra’s request.

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

But Okan’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, George had had a number of girlfriends in his life.  There was a bit more mystery over the circumstances in which George 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 Cleopatra and Anna Okan’s claims were not only a shock but a calumny.

Okan for his part maintained that his relationship with George was secret for cultural reasons.  He rubbed salt in to the wound (so far as Anna and Cleopatra were concerned) by claiming that George was dismissive of and said disparaging things about them.

By the time the matter came to trial, it emerged that if Okan was telling the truth, he had his own cultural reasons for keeping his relationship with George 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 Okan, of either George or Okan 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: Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [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.

Pointless III

June 8, 2017

Mr Chan becomes a defendant

Of course Chan was a defendant for the vexatious litigant proceedings, but those proceedings were concluded.

It is now necessary to go back to the last proceedings referred to in the judgment of Adamson J, involving TAFE NSW and the examination summons.

TAFE NSW obtained an order for costs in the proceedings brought by Chan against it.  TAFE NSW had those costs assessed.  Chan did not pay the costs.  TAFE registered the assessment as a judgment in the Local Court.  Once you register an assessment as a judgment you can then invoke the procedure of the court to enforce it.

An examination summons is a procedure where a judgment creditor can bring a judgment debtor before the court where it has obtained a judgment to answer questions about his assets.  The purpose is to enable the judgment creditor to obtain information about what means the debtor may have to satisfy the judgment, which the judgment creditor can then use to decide how to seek to recover its debt.

The first step is to serve a notice on the debtor requiring the debtor to produce documents in relation to his means.  TAFE did this in July 2010.  Chan failed to comply with this.

The next step is to get the court to issue an examination summons for the debtor to attend court and be examined. TAFE NSW did this, probably no earlier than late September 2010, as in October 2010 the Local Court made an order under Rule 38.3 for examination of Mr Chan, on 27 January 2011.

The examination was adjourned to 17 February 2011 after Mr Chan filed a notice of motion seeking an annulment of that order. His motion was later dismissed and he was ordered to submit to the examination in the Local Court on 17 March 2011.

The examination was deferred because in February 2011 Chan commenced the proceedings in the Supreme Court which were dismissed by Fullerton J on 30 June 2011.

On 6 December 2011, Chan appeared before Magistrate Atkinson on the occasion set down for the examination.  He sought another adjournment, on the basis that he intended to appeal Fullerton J’s decision. After considering the notice of intention to appeal which Mr Chan then produced, her Honour refused the further adjournment. It is worth pointing out that the time to commence any such appeal had well and truly passed and any application for appeal would have required leave of the court as a result of Justice Adamson’s orders made on 4 November 2011.  The time to appeal from those orders had also passed, and no leave had been sought to appeal from Fullerton J’s orders.

Magistrate Atkinson refused the adjournment and ordered Chan to enter the witness box to be examined.  Chan refused.  Magistrate Atkinson told Chan that if he refused, she would refer the matter to the Supreme Court for him to be charged with contempt of court.  Chan still refused.  The examination did not occur.

In February 2012, the Prothonotary of the Supreme Court commenced a prosecution of Chan for contempt of court.

This is a cumbersome procedure.  It also encountered many delays.

Chan was the source of many if not all of these delays.

Proceedings were commenced by summons in December 2009.

Chan sought legal aid – his application was rejected and the matter had to be stayed to permit him to appeal that rejection; he sought and was given pro bono legal advice, which it may be inferred he did not accept.  Twice.

In May 2014  Chan raised the question of his fitness to be tried, a question which the Prothonotary considered had to be resolved.  This too proved a protracted process as Chan declined to provide his own psychiatric report or to be seen by Dr Allnutt, the psychiatrist finally selected by the Prothonotary to assess Mr Chan’s fitness to be tried in 2015.  Ultimately Dr Allnutt opined that Chan was not unfit to plead.  On 20 August 2015, by now up to no 15 in published reasons for judgment, Schmidt J held that, though Chan suffered from a mental condition that involved either delusions, or paranoia or likely both, he was fit to be tried.

On 23 June 2016 Justice Schmidt found Chan guilty of contempt.  Her reasons are No 20.

On 21 July 2016, Justice Bellew made orders for Mr Chan to attend for a pre-sentence report and for the filing of submisions in time for a hearing on sentence to occur on 7 and 14 October 2016.

As ever, that was not quite to be, but a sentence hearing did go ahead on 16 November 2016.

A development

But meanwhile, in December 2015, Justice N Adams had held that before deciding to refer a non-co-operating witness to the Supreme Court for prosecution, a magistrate had to offer the witness procedural fairness, and in particular an opportunity to make submissions as to whether the magistrate should deal with the contempt themselves – which they have the power to do.  The significance of this is that if a magistrate deals with the matter, the maximum penalty is less.  Maybe also section 32 of the Mental Health (Forensic Provisions) Act 1990 could apply.  (That’s my speculation, not Justice N Adams’ and its application to someone like Chan would be problematic.)  If the magistrate had not given a witness an opportunity to be heard on this question a prosecution by the Prothonotary is invalid.

The Prothonotory appealed against this decision but in October 2016 the Court of Appeal dismissed that appeal – Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277  .

At the sentencing hearing, the Prothonotary (not that the Prothonotary, a court official whose exact present identity is decidedly difficult to track down, does this themselves) brought Dangerfeld to the attention of Justice Schmidt, but submitted that it did not apply in the case of Mr Chan.

On 2 June 2017, in judgment No 23, Justice Schmidt held that Dangerfield did apply.

Chan had submitted that if it did apply, then that should be an end to the matter.  Justice Schmidt instead ordered that the findng of contempt be revoked and the question of how Chan should be dealt with should be referred back to the Local Court.  In other words, the clock should be wound back to the point where Chan had been denied the opportunity to make submissions as to whether the Local Court should deal with the matter itself.

Despite Justice Schmidt’s stating that, because the finding of contempt was made before the decision of the Court of Appeal handed down its decision in Dangerfield, the proceedings were not a nullity, it is hard to avoid the feeling that all that went before in the Supreme Court was therefore essentially pointless.

What was the point of the examination summons?

By the time TAFE NSW started the process which culminated in the examination where Chan refused to enter the witness box, there were already published reasons from which it could be inferred that costs orders had been obtained against Chan by a whole host of parties other than TAFE NSW in at least the litigation which I have described in Pointless I as:

  1. the tenancy appeal;
  2. the Public Housing complaints;
  3. the train ticket subpoenas;
  4. Perry defamation; and
  5. the Constitutional objection to court fees (finally disposed of on 30 August 2010).

By the time the examination went ahead, it could be reasonably inferred from published reasons for judgment that Chan had also been ordered to pay costs in:

  1. The Local employment training solutions litigation;
  2. The previous proceedings against Mr Tran referred to in the published judgments in those proceedings; and
  3. The vexatious litigant proceedings.

It was also apparent that:

  • in 2003 Chan had been tenant of a room in a house;
  • since 2005 Chan had been a public housing tenant; and
  • he was a Centrelink client (and probably had been for some time given that he had obtained public housing in 2005) most recently on Newstart allowance.  (In fact, by April 2016 he had graduated to a disability support pension.)

The first of these strongly suggested he was hardly a man of means to start with and the second and third made him practically judgment-proof.  You can’t garnish Centrelink payments (only Centrelink can do that). A public housing tenant has no house to be sold up.

A moment’s reflection ought to have led to the conclusion that this situation was unlikely to change, especially given all that Chan’s many litigious ventures indicate about the kind of person he was, of which TAFE NSW must have had its own multiple demonstrations.  Even if Chan did have some assets against which a judgment could be recovered, the proceeds of such recovery would be vulnerable to being clawed back as preferences if any other costs-creditors took the trouble to have their costs assessed and he were then sent bankrupt.  I strongly suspect that most if not all of those with costs orders against Chan concluded that it was pointless even incurring the costs of having those costs assessed.

In the light of the enormous public expense that has been incurred by the State of NSW in one guise or another to date in the pursuit of the contempt charges against Mr Chan, which has still not yet run its course, it seems to me a pity that TAFE NSW took a different view.

 

 

 

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Pointless II

June 7, 2017

This is the second post in a series of posts about Yau Hang Chan, his interaction with the court system (and some tribunals) and that system’s interaction with him.

A vexatious litigant

On 25 March 2011 the NSW Attorney-General commenced proceedings in the Supreme Court of NSW under s 8 of the Vexatious Proceedings Act 2008 (NSW) for orders prohibiting Chan from commencing proceedings in NSW and staying all proceedings in NSW without and subject to the leave of the Court.

When the matter finally came on for hearing on 18 October 2011, Chan did not appear.  He had previously filed submissions and sent various communications disputing the validity of the proceedings against him, including a message on the day of the hearing that he would not appear.  The matter proceeded.  On 4 November 2011 Justice Adamson made the orders sought.

Most of Pointless I was drawn from Justice Adamson’s reasons for judgment.  In addition to the proceedings listed in Pointless I, by the time the application was heard Chan had brought fresh proceedings in the Supreme Court against TAFE NSW.   These proceedings were in relation to steps (of which more in Pointless III) that TAFE NSW had taken towards enforcing costs orders it had obtained against him.  The proceedings were summarily dismissed by Justice Fullerton on 30 June 2011.

What my account has necessarily abbreviated is the full nature of Chan’s conduct which founded Justice Adamson’s decision.  You need to read her decision to appreciate the wide range of collateral issues raised by Chan in his proceedings, and the many claims which were made by him, many of them ultimately abandoned or never backed up or never backed up in any cogent way.

A hallmark of many vexatious litigants is a capacity to perceive grievances and to formulate claims and arguments but a reluctance to bring them to finality.  Faced with opposing arguments, fresh claims are brought, amendments and adjournments sought, applications are made to disqualify judicial officers.

This is tremendously and unfairly burdensome to opposing parties and also to the courts.  Just because the claims are meritless does not mean they can be ignored. Even if, in hindsight, Chan’s claims once dismissed can be seen as ridiculous and even foolish does not detract from the stress that they will have caused to those subject to them.

Ultimately a stop has to be put to it.  That stop does not prevent a vexatious litigant from attempting to bring a claim, but it does reverse the usual presumptive right of all persons to bring claims and the concomitant burden on the objects of those claims to respond to them.  Before a potential defendant or respondent need be troubled with the vexatious litigant’s claims, the court will consider whether the claim has arguable substance.

So you might think that Justice Adamson’s decision brought to an end Mr Chan’s entanglement with the court system and, more importantly, his entanglement of others.  What a relief.

But no.

What happened next is the subject of Pointless III.