Archive for the ‘law’ Category

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.

 

Pointless I

June 6, 2017

This is the first in a series of three posts about Yau Hang Chan, vexatious litigant who currently faces the prospect of prosecution for contempt of court.

Like all long and sad tails, the beginning must lie buried in the mists of time, but it is necessary to begin somewhere.

Tenancy appeal

In February 2003 Yau Hang Chan entered into a residential tenancy agreement in respect of a room in a building at Croydon, for the term of one year commencing on 8 February 2003 and ending on 7 February 2004.  That, you might observe, is pretty much the most humble rental accommodation possible.  You can assume Chan was not a man of any substantial means.

On 3 December, the landlord gave him notice that he had to leave at the end of the term.  Chan did not leave and the landlords quite briskly obtained an order from the Residential Tenancy Tribunal for his eviction in March 2004.  Chan resisted this order by appealing (I infer some time in March 2004) to the Supreme Court, on grounds, mostly procedural, which were ultimately found to be baseless on 13 August 2004.  It counts as a mercy that he was then given until 27 August 2004 before the eviction order could be carried out.  He reached the end of the road with an application to the Court of Appeal for a stay pending an appeal to the court which was rejected on 24 August 2004.  Evictions are rarely carried out on the very first possible day, but nevertheless you can assume he was out pretty soon after that.

This must have been a dark time for Mr Chan.  On the other hand by his resistance he had effectively extended his occupation of the room for about six months, which was a pretty good result.

Chan’s situation was apparently desperate enough for him to be allocated public housing, which he moved into on 18 February 2005.

Unsuccessful TAFE studies proceedings 

By then Chan had enrolled in January 2005 in a course at Ultimo TAFE.  In the second half of that year he was enrolled in the subject “Develop and Apply Knowledge of the Library/Information Services Industries.”  This ran from July to 30 November. On 15 November his teacher informed him that he had failed a group presentation assessment task.

On 16 November 2005 Chan commenced proceedings challenging this in the Supreme Court against the the teacher personally and the TAFE Commission.  When the matter first came before the court on 20 November it was stood down to give the parties the chance to reach a negotiated resolution.  Mr Chan wanted to withdraw from the course without penalty.  The TAFE Commission said that he could withdraw but that a fail would still be recorded.  Chan withdrew and a fail was recorded.  You can see that from his position the negotiations were fruitless and probably they were always going to be.  Chan continued his proceedings.  These were ultimately summarily dismissed by Master Malpass (actually by then he was an Associate Justice but Master Malpass has a much more satisfying ring) in June 2006.

Mr Chan appealed unsuccessfully against this.  He made FOI requests and appealed decisions against them.  In 2008 he commenced fresh proceedings against his TAFE teachers’ superiors with claims in defamation, misfeasance in public office and negligence.  Those claims, other than the claim for defamation, were dismissed in December 2009.

Public Housing complaints

Meanwhile, almost as soon as Chan had moved into his public housing, he came into dispute with the Housing Department (a loose term because there were name changes for the relevant entity from time to time).  Some of these he agitated in proceedings in the CTTT (the Tenancy tribunal) leading to a deed of settlement in 2006.

Claims by Chan eventually included that, from the outset, the Department had wrongfully backdated his lease by one day, that officials had defamed him, and various matters concerning condition reports and smoke detectors.  In March 2008, Chan commenced proceedings against the Department.  In 2008 he also commenced proceedings against an officer of the Department for defamation (and other matters) in relation to a letter she had sent him about inspection of smoke alarms in his property.  Both proceedings were ultimately dismissed as hopeless by Justice McCallum in August 2009.

The train ticket subpoenas

On 22 January 2007, Rail Corp brought proceedings in Sutherland Local Court against Chan for allegedly travelling on a train without a ticket.  This led to satellite proceedings commenced by Chan in April 2008 against the Local Court (a magistrate had set aside a subpoena) and even (in December 2008) against an employee of Railcorp who had appeared for Railcorp in the proceedings against the magistrate to inform the court that Railcorp rather than the magistrate was the proper defendant – as a result of which Chan was permitted to amend his summons.  The proceedings against the Railcorp employee were dismissed in April 2009 and those against the Court (by which time the Attorney-General had also been joined) in September 2009.

Perry defamation

On 9 January 2009, Chan commenced proceedings against Ms Perry alleging conspiracy and defamation in a letter she had sent him in December 2007 from the office of the NSW Premier in response to letters from him complaining about certain conduct of the NSW Police Force and about certain legal proceedings.  These proceedings were dismissed by Justice McCallum on 27 November 2009 on the basis that Chan’s pleadings and draft pleadings disclosed no reasonable cause of action ( Chan v Perry [2009] NSWSC 1293). Along the way Chan made an application that Justice McCallum disqualify herself which she dismissed on 19 November 2009 ( Chan v Perry [2009] NSWSC 1278).

Police FOI case

On 30 December 2009, Chan applied to the ADT  for review of a decision by the NSW Police Force decision in respect of a decision it had made in a relation to a privacy complaint made by him in relation to its COPS records.  This application was ultimately dismissed for want of prosecution by Chan.

Constitutional objection to court fees

On 8 February 2010, Chan caused a summons to be issued from the High Court seeking a declaration that Schedule 1 of the Civil Procedure Regulation 2005 (NSW) (relating to court fees) was invalid.  On 10 May 2017 this came before Justice Heydon – transcript here.    Although Chan had failed to file a statement of claim as required by the rules, the case was remitted to the Federal Court.

In the Federal Court Chan also filed a notice of motion seeking that certain Local Court proceedings be stayed.  On 6 August 2010 Justice Perram dismissed that application and ordered that these proceedings be dismissed if Chan had not filed a statement of claim by 30 August 2010 and stayed until he did so.  Chan did file something but in March 2011 Perram J held that it was not a statement of claim and so the proceedings had been dismissed on 30 August 2010.

Local employment training solutions

On 17 May 2010, Chan commenced proceedings in the Federal Court for preliminary discovery against Mr Harris, an employee of Catholic Care Sydney, which operates the Local Employment Training Solutions (LETS) program. Preliminary discovery is a procedure where you can obtain documents relevant to a claim you might have in order to decide whether or against whom to bring it.  On the same day, Chan filed a statement of claim alleging that the report prepared by LETS and provided to Centrelink contained fraudulent and defamatory allegations and that those allegations were part of a conspiracy to injure him.  Both cases came before Justice Cowdroy for case management.

The application for preliminary discovery was ultimately dismissed for want of prosecution by Justice Cowdroy on 10 December 2010, but not before Chan had made an unsuccessful application that Cowdroy J disqualify himself because he had presided over a previous application by Chan in May 2009 for preliminary discovery.  Those proceedings were against Tran, an employment consultant to Centrelink, for documents relating to Chan.  Cowdroy J had made orders for preliminary discovery, Tran had produced some documents, Chan complained that production was incomplete and brought a notice of motion against Tran for contempt, Tran produced some more documents, Cowdroy J gave leave to Chan to withdraw the application for contempt and the proceedings were otherwise dismissed by Cowdroy J in June 2009.

Chan appealed against Cowdroy J’s refusal to disqualify himself and then against the final decision.  The appeals were ultimately dismissed (after various collateral issues were raised by Chan) by Justice Katzmann on 11 April 2011.  Chan instituted a fresh appeal which was dismissed by Justice Rares in May 2011.

By then, steps were underway to have Chan declared a vexatious litigant.  That will be the subject of the next post in this series.

 

Proposed travel ban for pedophiles

May 30, 2017

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

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

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

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

Others cheerfully propose even more radical measures without such awareness.

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

Adrian Ashley of the House of Cooper

May 3, 2017

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

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

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

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

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

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

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

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

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

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

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

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

but seriously, folks:

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

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

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

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

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

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

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

Attitude problem

March 26, 2017

CRM, aged about 80, wanted a working with children check clearance so that he could work in a volunteer capacity.  Regulations under the Child Protection (Working with Children) Act specify a wide range of volunteer roles for which such a clearance is required.

He applied to the Children’s Guardian for this on 24 June 2015.

In 1953 CRM was charged with and was subsequently convicted of an offence of carnal knowledge.

If CRM was 18 at the time of committing the carnal knowledge offence this would count as a disqualifying offence under the Child Protection (Working with Children) Act 2012.  The Children’s Guardian would be obliged to refuse CRM a clearance. CRM could apply to NCAT for an enabling order to be issued with a clearance, but under section 28 of the Act, he would be presumed to pose a risk to the safety of children unless he could prove otherwise.  This is known as “the onus.”

The Children’s Guardian could not tell how old CRM was when he committed the carnal knowledge offence.  The relevant court records were missing and it may be presumed that CRM, if he had referred to it in his application, had not given the precise date.

CRM also had a conviction for obscene exposure.  On a Friday in May 1961 he exposed his penis to a 15-year-old girl on a train.  He was aged 26 at the time.

I am a bit surprised that this was not also a disqualifying offence but it was probably still an offence which would trigger a requirement that the Children’s Guardian undertake a “risk assessment” to determine whether CRM posed a risk (over and above the normal risk anyone poses) to the safety of children before deciding whether issue him with a clearance.

The first step if there is to be a risk assessment is that the Children’s Guardian inform the applicant of this and give the applicant the opportunity to provide further information.  Obviously, the Children’s Guardian would need also to find out from CRM when the carnal knowledge offence was committed.

CRM’s application went nowhere for about a year because he had not given an email address and apparently this prevented the Children’s Guardian from even sending him a letter.  As with Centrelink, the Children’s Guardian has moved its systems online in order to deal with the enormous volume of applications it has to process.

In May 2016, CRM rang the Children’s Guardian to complain that a year was a long time to wait to hear from them.  It’s not clear whether he got to speak to a person then but you can assume that at this point his call was merely logged.  A month later they rang him back.

Even then it does not look as though they asked CRM the right question.  CRM told them he was 18 when he was convicted.

A Children’s Guardian officer went ahead with a risk assessment and decided that CRM did not pose a risk to the safety of children.  Then someone higher up spotted the carnal knowledge offence and determined that CRM was a disqualified person.  The Children’s Guardian was obliged to refuse CRM a clearance, and accordingly knocked him back.

CRM applied to NCAT for an enabling order.  As is always the case, a barrister appeared for the Children’s Guardian.  CRM, by now 81, appeared for himself.

At these hearings, the Children’s Guardian puts into evidence (though the legal rules of evidence do not apply) its file and all the information it has collected.  CRM filed what the Tribunal called a “bundle of material” including the following:

  1. a Certificate II in Security Operations,
  2. a Notice of probationary appointment as Commissionaire at a Government Office, dated 23 June 1982,
  3. a Certificate, dated 18 June 1987, stating the applicant held the appointment of Special constable for the State of NSW in the capacity as Commissionaire,
  4. a heavy vehicle driver licence, a security industry licence and a bus drive licence in the name of the applicant,
  5. a number of references from past employers and friends dated 17 September 1978, 17 December 1981, 21 December 1982, 17 November 1987, 22 February 1988, 28 May 1988, 31 May 1990, 15 May 1991, 20 December 2001, 2 October 2003, 23 June 2008 and 3 May 2011, and
  6. a couple of newspaper articles in regard to “sex offenders” and the “criminal classes.”

You can tell from (6) that CRM really didn’t have much of a clue about how such hearings might proceed.  You can also infer that the point he wanted to make was that he had worked in a number of jobs with exposure to the public including children (he had retired as a bus driver in 2002) where he was trusted and without any incident or further complaint since 1961.  I expect his view was that what had happened was a long time ago when he was a much younger person and should not lead to the conclusion that he was a risk to the safety of children in the light of his blameless life since.  He obviously did not appreciate what the fuss was or would be about.

The tribunal in its reasons states that at the hearing CRM conceded that he was over 18 years of age at the time the carnal offence was committed.  That probably means that without that concession the Tribunal would not have been sure of that.  How sure could CRM have been of that?  Nevertheless, the concession stood.

CRM had spoken on the phone with officials of the Children’s Guardian when they conducted the assessment (which had led them to form the view that he did not pose a risk apart from being a disqualified person).  Notes of these conversations were amongst the material produced by the Children’s Guardian.  He also almost inevitably, since he was presenting his own case, gave oral evidence on which he was cross-examined by counsel for the Children’s Guardian.

The following is the Tribunal’s account of that material in relation to the carnal knowledge offence:

In July 2016, when initially asked by an officer of the respondent about the circumstances giving rise to the carnal knowledge offence, the applicant explained that at the time he was working for the salvation army and he had picked up “the woman” in a bus stop as she was all alone and had no place to go. He said he invited “the woman” to stay at his place. He said the woman “undressed herself” and they engaged in “consensual sex.” He said he later found out that “the woman” was underage and that she had escaped from the dormitory of a high school.

In a subsequent conversation that day, with another officer of the respondent, the applicant added he met “the child who was waiting at a bus stop and as he came from ‘Christian upbringing’ he felt compelled to assist her.” He said the child had indicated she had been kicked out of home and as his mother worked in social welfare he assisted the child to obtain appropriate accommodation. He said that when he returned, “nature took its course.”

In his oral evidence in these proceedings, the applicant said the victim of the carnal knowledge offence wore “a very revealing blouse” and that there “should have been something to protect” him. He said the victim jumped into bed with him and he re-iterated “nature took its course.”

The first two of these excerpts above are based on file notes of officials of the Children’s Guardian  It is likely that CRM called the (under 16) victim a “woman.” The use of the word “child” in the second is probably the official’s wording.

This is the Tribunal’s consideration of that material, emphasis added in the second extract:

While the age of “the woman” is unknown, the applicant has acknowledged she was a high school student and given the nature of the offence she must have been under the age of 16 years.

While we accept that the applicant’s recollection of events dating back to 1953 may not be clear, we nevertheless have considerable difficulty in accepting his account of events. The victim was a child, a high school student, who was unknown to him. She was vulnerable, alone and in all probability trusted him; otherwise she would not have gone with him. In such circumstances it cannot be accepted that there had been consensual sexual intercourse. Having regard to his evidence, we were left with the impression that the applicant has a complete lack of understanding about his offending conduct and the impact it may have had on the victim. He appeared to blame her for the situation he found himself in, rather than questioning his own behaviour.

it cannot be accepted that there had been consensual sexual intercourse

WHOAH!  Where did that come from, and what use is the Tribunal making of it?

With those weasel words I think the Tribunal has taken a step too far.  Of course I wasn’t there (and nor were they in 1953) but I have to very seriously doubt whether they have made a proper assessment of something an 81-year-old man has said about how it is that he came to commit an offence when he was 18 – when he was a lot younger than he is now and when the victim was not much younger than he was.

When charged with the obscene exposure offence in 1961, the victim had first told the police that he was (as the phrase used to be at railway toilets) “adjusting his attire” and that he should have been more careful.  However he subsequently admitted that was false and pleaded guilty.  The following is based, I expect, on the magistrate’s sentencing notes:

He told the Magistrate he had a very bad home life and his father sent him to a church home for boys. He explained his prior stealing convictions were due to having “got in with a crook mob”. He explained he had married in 1955, but his wife “had lost her desire for sexual relationships”, but they were still living together. He said this and their money worries had placed a great strain on him. The money worries were due to him having not been able to work because of illness. When asked if he had seen a doctor about his offending conduct, the applicant responded he had seen a psychiatrist once and that he didn’t take to him very well. He said he had discussed the matter with his wife and prior to admitting guilt he told the Magistrate that he had come to the “point of asking for some help in medical ways.”

The Tribunal noted that CRM did not in fact obtain any treatment.

The Tribunal was required to consider “the likelihood of any repetition by the person of the offences … and the impact on children of any such repetition.”  They found:

Given the applicant’s age and the fact that he has not reoffended in a similar manner for many years, the likelihood of him re-offending as he did in 1953 and 1961 is probably low.

OK, you might think – give him the enabling order.  But no, they were obviously troubled by all this “woman,” “revealing blouse” and “nature taking its course.”  They went on:

However, given his account of past offending, we are not persuaded the applicant the has any understanding today of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. As we have noted, the applicant appears to have blamed others for what occurred and we doubt he has at any time appreciated the seriousness of his offending in so far as it concerns issues of child protection.

Accordingly, even though there was a low risk of re-offending, CRM had not discharged the onus of proving he was not a risk to the safety of children because of his lack of insight when accounting for, at the age of 81, his conduct when he was 18 or (though I can’t quite see where this comes from in the tribunal’s account of his evidence) blaming his wife for his conduct when he was 26.

What is of concern to us is the applicant’s lack of understanding about the seriousness of his offending conduct in 1953 and again in 1961 and the impact that conduct may have had on the victims. Instead he continues to blame the victim, or his former wife, for the situation he found himself in. While we do not believe the applicant is likely to offend in a similar way today, given his responses to his prior offending, we are not persuaded the applicant has any understanding of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. It is for this reason that we find the applicant has failed to discharge his onus.

Amber Harrison and joking Justice MacDougall

February 27, 2017

Plenty have been transfixed by the feud between Amber Harrison and Channel 7.

In December 2012, Harrison, who worked for Nick Chan, in charge of Pacific Magazines, a Seven subsidiary, embarked on an affair with Tim Worner, CEO of the Seven Network.  Worner was older than Harrison, and married.

The main shareholder and chairman of Seven West is Kerry Stokes, a very rich and powerful man.

The Pacific Magazines offices were in Redfern (you can see the Seven offices, in the Eveleigh precinct, when you go past in the train). Worner worked at Jones Bay Wharf, in Pyrmont.

In October 2013, Ms Harrison’s work relocated to Jones Bay Wharf.  According to Harrison, that was when the difficulties with the affair began.  Amongst other things, she felt he was ignoring her and disregarding her during work hours.

Excuse me?

What part of a clandestine affair with a married man did Harrison not understand?  OK: theory is one thing but coming up against the practice could be another.

Harrison asked to be transferred somewhere else within the organization so she wouldn’t have to endure this.  Nothing came of this.  You might wonder about the governance implications if it had.

One thing Harrison also apparently wasn’t ready for (though again surely she should have been)  was the possibility that there might be other other women.  That seems to have precipitated the end of the “relationship” in mid 2014.

Right at the same time, Harrison became the target of an investigation about corporate credit card misuse.  Harrison doesn’t see that as a coincidence and you can see why she might see it that way.

Harrison agreed to pay back $14K of expenses and Seven paid her $100K.  But Seven wasn’t leaving things there.  It commissioned a report from Deloittes which identified $262K of unjustified expenses over a period of some years.

In November a second deed was entered into.  Under that deed, Harrison was made redundant.  Seven agreed to pay Harrison various amounts upfront and a further $150K in monthly instalments over 12 months.  A procedure was established for Harrison to be given access to documentation concerning the $262K.  To the extent that Harrison could establish that these expenses were legitimate, she would also receive those amounts.  A Mr Kite SC was appointed as a kind of referee for this.

There were other obligations on both sides, including “non-disparagement” clauses – though critically Seven’s obligation to not disparage Harrison was conditional on Harrison keeping her side of the bargain, whereas Harrison’s obligation was not so conditional.

Bruce McWilliam, Seven director and former Allens partner was in charge of things on Seven’s side and signed the deed for Seven.

Seven stopped performing its part of the bargain, including making the instalment payments, in March 2015.  Seven says that was because Harrison wasn’t performing her side of the deal, and in particular did not hand over her phone so that Seven could be sure that she had not retained any dirt on Seven or on Worner.  Given what has happened since there has to be something in that.

There must have been much more that went on.  In December 2016, Harrison went public with “explosive” allegations.

Some of Harrison’s more inflammatory claims were of affairs by Worner with other women (including some prominent broadcast personalities).  These were given internet exposure by muckraker, Stokes-hater and serial disregarder of court orders Shane Dowling, despite various court orders seeking to shut him down (1, 2, 3 and see als0 4).

Harrison also made claims of illegal drug use by Worner.  Nothing particularly out of the ordinary – just your usual cocaine stuff –  but potentially the most damaging allegations of all given the alleged criminality.

Seven was embarrassed.  It’s a bit of a governance issue if a company is paying $300+K to a discarded lover of a CEO, even if, as may be the case, some of this was taken off the top of bonuses which were otherwise to be paid to Worner.  And that’s before it became public that if Harrison could vouch for all the disputed credit card transactions she would have received over half a million dollars.

Seven commissioned Richard Harris of Allens to undertake an “independent review” of Worner’s conduct.

The review concluded that Worner hadn’t done anything wrong within the company apart from the affair itself, and that (unsurprisingly) the claims about illicit drug use could not be substantiated.  Nothing to see here.  The Seven board said that Worner had been punished enough already and that it was on with business.

One member of the board resigned at about this time, though she’s kept quiet about why.

Harrison was furious.  As far as she was concerned, the report was a whitewash and the investigation perfunctory and a foregone conclusion.  She started releasing material damaging to Seven which she still had (which you might think rather vindicated Seven’s claim that they were justified in breaking off the deal when she wouldn’t hand over her phone back in 2015) and tweeting about material which she had brought to Harris’s attention which she felt should have led to a different outcome.

Seven went to court and got an ex parte interlocutory injunction from Justice MacDougall shutting Harrison up – that is, without giving Harrison a chance to be heard. It was due to come back a week later, on 21 February  when Harrison would have her chance  to argue that the injunction be lifted or varied.

In the meantime, Jeff Kennett, a director of Seven, engaged in a twitter debate with Harrison.  Asked some needling questions in a press conference Kerry Stokes bridled at a question which referred to ‘alleged stealing’ by Amber Harrison.  He responded: “You say alleged stealing.  The facts of the matter are there were significant amounts of our money taken by her and no other excuse for it than just plain taken.”

It didn’t seem fair that Harrison should be subject to a gag order whilst Seven directors were free to take a kick at her.  That became a big part of her lawyer’s argument when the matter was back in court before Justice MacDougall on the 21st.  Not that it got very far.  Andrew Bell SC persuaded MacDougall to continue the injunction until further order.  The interventions by Stokes and Kennett were tut-tutted over but not so as to disentitle Seven to the continuation of the orders.

One of Harrison’s complaints was that, as well as stopping the payments to her, Seven had stopped the process of reviewing documentation for the credit card in order to vouch for the payments – which she was to receive if they were found to be legit.  So not only was the injunction preventing her from defending herself, but Seven’s halting of this process had prevented her from vindicating herself.

Here is the relevant passage of her affidavit:

harrison-affa-pars-35-36

harrison-36-40

The reference to paragraph 14 is to an earlier part of her narrative, about when the credit card discrepancies were first raised with her:

harrison-para-14

If I read this correctly, that means that of the $262K she was accused of misappropriating (on top of the $14K she had repaid) she had proved about $70K was legit in November 2014 (though possibly Kite SC had yet to determine this), found documents which would substantiate another $130K up to March 2015.  That’s about $200K out of $262 or $276K.  It’s not clear if paragraph 40 takes things much further – does she mean that overall she could justify a majority of the expenses?  200/276 is already a “majority.”   Maybe she meant “most.”

In his judgment, MacDougall summarises this evidence and this argument as follows (emphasis added):

Next, as to the submission that Ms Harrison could not respond to Seven’s campaign of “vilification”, it is enough to point out that she has had a full opportunity of putting her case before the Court, in an affidavit that would be read in open Court. She has done so. She has said what she wishes to say as to the matter of expenses. Her response was, if I may put it this way, a little coy. She said that, had she but world enough and time, she would be able to justify “the majority” of the suspect expenses identified in the Deloitte report. That is far from a complete disavowal of any improper use of the cards.

First, I don’t think that’s a fair summary of Harrison’s evidence.

And as for the allusion to Marvell’s “To his coy mistress” – I suppose that counts as a kind of judicial joke.  If so it is just plain unseemly, especially since his Honour downed the “mistress” by his decision.

Postscript

Harrison has foreshadowed a cross-claim.  In my opinion it is simply a rational response to MacDougall’s acceptance of an argument that the deed between her and Seven was on foot and she was bound by it.  Harrison has always claimed that Seven broke the deal.  If she wants to pursue that argument that is probably the only course she can take.

The link reports that Justice Sackar has given Harrison two weeks to file a cross claim. That strikes me as an unnecessarily brisk timetable when Harrison is the less-well-resourced party (whether she is right or wrong) who has already been forced to respond in very limited time frame to Seven’s ex parte application.  That can only be a limitation on her right to bring her claim as a cross claim – she would in my opinion always be free to take much longer to bring a claim in separate proceedings.

All stand for the judge – or else!

February 11, 2017

In 2013, by means of telephone intercepts, the AFP became aware that Hamdi Alqudsi was involved in assisting people to travel to Syria to join ISIS in its fight against the Syrian government.

That is an offence under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 of which Mr Alqudsi was ultimately found guilty in 2016 after a jury trial before Justice Christine Adamson.  Details of the various telephone intercepts are set out in her sentencing remarks: R v Alqudsi [2016] NSWSC 1227He was sentenced to a term of imprisonment of 8 years, with a non-parole period of 6 years.

Alqudsi’s role, or at least the conduct that was detected and for which he was convicted, involved putting people in Australia in touch with an Islamic State recruiter, Baryalei, advising the would-be fighters about how to get there and liaising with the Islamic State people who were expecting them.  He planned to go at least to Turkey himself but was ultimately stopped from leaving Australia in September 2013.

On the morning of 18 September 2014, police in Australia carried out the biggest counter-terrorism operation in the nation’s history, with over 800 heavily armed officers targeting households in Sydney and Brisbane.

The immediate catalyst was an intercepted call from an ISIS operative to a younger sympathizer relaying instructions to commit a terror beheading against a random Australian target. The younger sympathizer said that he knew there were people ready to carry this out. Alqudi was presumably a target because of his known ISIS involvement (including with the operative).

Notoriously, very few charges were ultimately brought and none against Mr Alqudsi in relation to the plan to behead someone.

These were the classic dawn raids though this is a misnomer since such raids are generally conducted shortly before dawn.  The aim is to surprise people when they are asleep with maximum force to prevent resistance to arrest or, as in this case, to prevent any resistance and preempt any attempt to destroy evidence which may be in the premises which are authorised to be searched by a search warrant.

Seven heavily armed and balaclava’d police battered the door down and secured the premises.  The violence of their armed incursion into the house was justified on the basis that the execution of the warrant was investigation of a “terrorist” offence.  Then 4 AFP officers, who had been waited inside, entered and executed the warrant.

Mr Alqudsi, his wife Moutia Elzahed and her two teenage sons (then aged 14 and 16) sued the police for what they said was mistreatment in the course of the raid.  They said in their statement of claim:

The First Plaintiff [Elzahed] was punched in the ear, eye and head, was held and moved in a brutal manner; was handcuffed in an aggressive and hurtful manner, her ear bled, she was mentally and physically abused; she was screamed at and was humiliated. She suffered bodily and mental pain.

The Second Plaintiff’s [Mr Alqudsi’s] head was held by the officers who pushed his head down on the ground injuring it and his nose and preventing him from breathing, talking or calling out. He was wounded and punched on the back thereby aggravating a previous back condition. He was handcuffed in a brutal manner and his arms and wrists became sore and cramped; The Second Plaintiff suffered bodily and mental pain.

The Third Plaintiff was pushed down on the floor with violence by officers and handcuffed in an aggressive manner injuring his arms and wrists. He suffered bodily and mental pain on seeing and witnessing the assault and battery of his mother.

The Fourth Plaintiff was slammed on a cupboard and still has marks on his stomach. He also was pushed on the floor in a violent manner and handcuffed. He suffered bodily and mental pain as well as physical injury aggravated by the officer’s treatment of his mother.

8   At the said time and place referred to above the four Plaintiffs were wrongfully arrested and imprisoned by the officers who impeded their liberty by handcuffing and restraining them from moving freely and by keeping them under strict and constant control.

9    Further and in addition the officers intimidated the Plaintiffs by aggressively calling the Third and Fourth Plaintiffs terrorists, by aggressively calling the First Plaintiff a bitch and by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them.

Mr Alqudsi’s claim was settled. That left Moutia Elzahed and the two sons.  The trial was heard by District Court judge Audrey Balla.

Ms Elzhahed refused to remove her niqab to give evidence.  Judge Balla refused to permit her to give evidence with her head covered, because she said this would deprive her of the means of assessing the witness’s credibility by seeing her face – [2016] NSWDC 327

You have to wonder about this.  If that were so, a blind or short-sighted person would be incompetent to act as a judge. Let’s not even go into those cases where judges or jurors have dozed off. People can keep a bold face or likewise be uncomfortable and look shifty according to their talents or nervousness.  Actual responses to questions and hesitations in giving answers are much more likely to be telling.  This is how Judge Balla dealt with this:

I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed.  In some cases the demeanour of a witness may be misleading.  However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.

Largely as a result of this, she then dismissed the claims – [2016] NSWDC 353 .  (Other aspects of the claim had already been struck out by Judge Judith (“Judge Judy”) Gibson  – [2015] NSWDC 271. )

Judge Balla had another bone to pick with Ms Elzahed.  She had observed that Ms Elzahed had not stood when she entered and left the courtroom.  It is customary that all present in the court should do so, as a mark of respect.  She raised it with Ms Elzahed’s counsel, the redoubtable Clive Evatt (not QC).  Evatt told her that his client did not stand because she only stands for Allah.  Judge Balla drew his attention to section 200A of the District Court Act.  This section (recently introduced as a response to defiance by various Islamic “terror-related” defendants) provides:

A person is guilty of an offence against this section if:

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and

(b) the person intentionally engages in behaviour in the Court during the proceedings, and

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

Maximum penalty: 14 days imprisonment or 10 penalty units, or both.

Judge Balla said:

“The law reflects community’s expectation that everyone who comes before a court should show respect for the judge and court. [….Possible ellipsis here as my source is the Daily Telegraph] Not standing up in court or refusing to follow a reasonable request fits that category.”

I expect Judge Balla was drawing on the second reading speech made on introduction of this law, as well as the definition of “behaviour” as “any act or failure to act.”

Ms Elzahed is now to be charged with an offence under that section – presumably for every occasion on which she failed to stand, the fact conveniently placed on the record by Judge Balla by raising the issue.

It will be an interesting question whether a failure to show a customary respect will amount to a positive act of disrespect according to custom.

My own feeling is that the essence of showing such respect is that it is voluntarily offered.  To say that it must be offered under pain of criminal prosecution robs it of that element.  There is already a law of contempt, although I am unaware of prosecutions being brought for merely failing to stand when the judge enters or leaves the court, or to offer the customary little bow when entering or leaving a court when it is in session.  If the law is as Judge Balla says it is you could be compelled to give evidence (by a subpoena), have your evidence rejected if you do not uncover your face and also be charged with an offence.

Is this necessary?  Did  Judge Balla need to raise the issue?  Even if ostensibly she was offering Ms Elzahed an opportunity to explain her failure to stand (bereft as it happens of the usual safeguards of right to silence when charged), it looks very much to me as though her Honour was stitching Ms Elzahed up.

Judge Balla’s behaviour in this case has not increased my respect for her.

Do not leave the village

May 20, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Back to Midsomer.

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

It means “Do not leave the colony.”

Afterword:

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

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

Sting in the tail

October 15, 2015

I have previously posted about the decision of Justice Stevenson in relation to the apartments at Wolli Creek sold off the plan and then unsold pursuant to a sunset clause by Kaymet Corporation and associated parties.

There is now a judgment about costs.  This also refers to an interlocutory decision in the course of the trial rejecting an expert report tendered by the defendants which seems to have been directed to whether delays because of a need to comply with conditions imposed by the State Rail (or whatever the authority then was) were foreseeable or not.

I have previously posted on the difficulties developers can have if they are building anywhere near a railway.

What is odd is that the question of whether delays because of difficulties dealing with State Rail did not really emerge as an issue in the final judgment at all because in the end his Honour only considered whether endeavours by the builders were reasonable or not going forward from the date of the contracts.  I doubt the defendants’ legal advisers were starting at hares in trying to put on this evidence: there must have been an argument about what reasonable endeavours involved which they were attempting to meet but which somehow fell by the wayside.

But the sting in the tail is that to preserve their spanking new apartments to be sold to them in the event they won, the purchasers obtained (by consent) an injunction preventing the defendants from selling or letting the apartments.  Naturally, they had to give an undertaking as to damages for this: that is, an undertaking to pay the developers what they lost if it turned out that the plaintiffs were wrong, as has come to pass.

Reportage of this case has from time to time quoted the developers as complaining that they had lost $2 million rent.  That is what they have been talking about: the money they could have made (they say) by renting out the apartments in the intervening period.

At first I had thought (thinking mainly of the injunction preventing sale): “No matter, the defendants will have suffered no loss.  The properties have appreciated in value well over any holding costs and they can still sell them new.”

Now I am not so sure.  But I am beginning to wonder if the hitherto mysterious failure of the defendants to register the strata plan may not be associated with a plan on their part to claim loss of rent pursuant to the undertaking for damages (because until the strata plan is registered they cannot sell anything) AND to sell the apartments for their present value – inevitably more than that for which they were “sold” off the plan in 2009-2010 or even sellable for in 2013 when the injunction was granted or in  mid-2014 when the apartments were probably habitable and lettable.

That is going to excite a lot of wailing and gnashing of teeth indeed.