Archive for the ‘case of the week’ Category

Justice[s] blindsided

April 14, 2009

Last October, the Full Court of the Fiji High Court held that the removal of Mr Qarase and the assumption of power by Mr Bainimarama in December 2006 and January 2007 was lawful.

Last week, the Court of Appeal reversed that decision. They stopped short of reinstating Mr Qarase, commenting that “his fidelity to the Constitution ha[s] come late in his political life, and it is now more than two years since the events of December 2006” but they made declarations that his removal had been unlawful, and that it would not be unlawful for the president “to advise a dissolution of the Parliament and the issuance of writs for the election of members of the House of Representatives.”

The president has gone along with Bainimarama since January 2007 (when he ratified Bainimarama’s coup – including Bainimarama’s usurpation for a while of his own office) promptly dismissed the judiciary, abrogated the constitution, and assumed power himself. Bainimarama says he didn’t put the president up to it, but it seems Bainimarama has now been reappointed as “caretaker” prime minister. That must involve quite a lot of caring, because any elections may not be held until 2014.

The key points of the court’s decision – for the time being probably of interest only as a matter of legal history and theory – were:

  1. The Fijian constitution laid out a code for the circumstances where a prime minister could be dismissed (so that there was very little scope for any use of prerogative powers).
  2. The dismissal of Qarase had occurred and couldn’t be ignored (and it wasn’t practical to order his reinstatement subject to undertakings by him to call elections and then basically resign).
  3. They were spectacularly unimpressed by the refusal of Bainimarama and the regime to give any undertakings as to when he or they might cause elections to be held.
  4. Elections need to be held to produce a prime minister enjoying the confidence of the house of representatives, who then could advise the president in the normal course as envisaged by the constitution.
  5. Necessity was a valid basis for the president to appoint a prime minister who could then advise the president to call an election so that, eventually, a normal prime minister could be appointed.

They also offered a spirited defence of their own and others’ acceptance of appointments to the Fijian judiciary at a time when the legality of the regime itself was questionable – namely that the Fijian people should not for that reason be deprived of the rule of law. That’s partly a nod to the rather savage treatment Jocelyn Scutt received at the hands of The Australian. Having ruled as they did, I suppose they are entitled to make that argument, even if the consequences go to show (as if there were any doubt) that lawyers can’t play rule of law on their own.

They fuck you up…

March 23, 2009

The latest issue of the South Sydney Herald, which I picked up in Glebe the other day when dropping off my bike to be serviced, has a number of ads from Adults Surviving Childhood Abuse.

Some of these ads have also been run on television, and you may have seen them: the father-of-the-bride speech with the “joke” (in fact all too true) by the father that after having sex with his daughter, the first thing he said was “Don’t tell your mother.” Or (and it was the print version of this which caught my eye) a bloke cheerfully doing the ironing whilst wearing a t-shirt saying “My ‘Uncle’ raped me when I was 8 and all I got was this lousy t-shirt.”

At the bottom of the ad and another print ad in the same magazine is what is presumably thought to be the second punchline (once attention has been grabbed by the t-shirt) and the message:


(They don’t do subjunctive in ad-land.)

At the ASCA site there is some explication of this statistic:

Statistics on Australian adults surviving child abuse: In 2008 an Australian University-initiated study of over 21 thousand older Australians, the largest of its kind to date found that over 13% reported having been sexually or physically abused in childhood. These figures did not include those emotionally abused or neglected or forced to live with family violence. In an earlier study from 2005, a personal safety survey conducted by the Australian Bureau of Statistics 18% of people over 18 reported having experienced physical or sexual abuse before the age of 15. Emotional abuse, neglect and being forced to live with family violence were excluded yet again. Australia’s current population is around 21.5 million. So as you can see 10% of this number exceeds the 2 million we have used- let alone if we used the real percentages from these studies and added the additional figures from the forms of abuse and neglect not considered by them. The figure is more likely to be double that quoted.

We’ve all heard statistics like this in the past. I always wonder to what extent they lump together minor and major incidents, and isolated and sustained abuse. If child abuse really as common as all that (note that ASCA wants to bump the figure up to 20% of the population), then a lot of people are going to have to learn to get over it, because there just isn’t enough counselling to go round so many. My own suspicion is that in fact a lot of people do learn to “get over it,” at least when the incidents were relatively minor or isolated. Admittedly, I may be generalising from my own experiences: I suffered much worse and more harmful abuse from my fellow children on account of my sissiness than from any adult, and I expect this is so for many gay men.

The first study referred to by ASCA is presumably the one summarised here:

OBJECTIVES: To determine whether childhood physical and sexual abuse are associated with poor mental and physical health outcomes in older age. DESIGN: Cross-sectional, postal questionnaire survey. SETTING: Medical clinics of 383 general practitioners (GPs) in Australia. PARTICIPANTS: More than 21,000 older adults (aged >60) currently under the care of GPs participating in the Depression and Early Prevention of Suicide in General Practice (DEPS-GP) Study. Participants were divided into two groups according to whether they acknowledged experiencing childhood physical or sexual abuse. MEASUREMENTS: Main outcome measures targeted participants’ current physical health (Medical Outcomes Study 12-item Short Form Survey, Version 2 and Common Medical Morbidities Inventory) and mental health (Patient Health Questionnaire-9 and Hospital Anxiety and Depression Scale). RESULTS: One thousand four hundred fifty-eight (6.7%) and 1,429 participants (6.5%) reported childhood physical and sexual abuse, respectively. Multivariate models of the associations with childhood abuse indicated that participants who had experienced either childhood sexual or physical abuse had a greater risk of poor physical (odds ratio (OR) = 1.35, 95% confidence interval (CI) = 1.21-1.50) and mental (OR = 1.89, 95% CI = 1.63-2.19) health, after adjustments. Older adults who reported both childhood sexual and physical abuse also had a higher risk of poor physical (OR = 1.60, 95% CI = 1.33-1.92) and mental (OR = 2.40, 95% CI = 1.97-2.94) health. CONCLUSION: The effects of childhood abuse appear to last a lifetime. Further research is required to improve understanding of the pathways that lead to such deleterious outcomes and ways to minimize its late-life effects.
Revue / Journal Title
Journal of the American Geriatrics Society ISSN 0002-8614
2008, vol. 56, no2, pp. 262-271 [10 page(s) (article)] (36 ref.)

When I read that, it isn’t clear that the two figures for physical and sexual abuse are mutually exclusive categories, so it may not be correct to add 6.7% and 6.5% and get “over 13%” as ASCA does, and it is far from clear that all of those 13% reported problems as a result of this, as opposed to the higher risks (OR) referred to. So, in other words, I think the second line of the punchline, “for over two million Australians,” is an exaggeration, even though it is undeniable that the effects of childhood abuse can persist throughout people’s lives.

The figure which ASCA purports to get from the ABS also seems to add together figures which must count the same people twice. The figures I have found, on a cursory search, are:

9.4% of men and 10% of women experienced physical abuse before the age of 15 years.
4.5% of men and 12% of women were sexually abused before the age of 15 years.

In the meantime, in the Supreme Court of NSW, well-known-softy Justice David Kirby (probably now just Justice Kirby now that his brother is off the bench) has extended the limitation period to allow CG, now aged 28, to sue her father and her uncle for some pretty horrendous sexual abuse which she experienced as a child between the ages of 4 and 11.

At least as against her father, it is undeniable that some abuse occurred, as he pleaded guilty to two counts in November 2006. The uncle didn’t commit the abuse. He was told of it when CG was about 6, after she had told her sister about it, after which he and the mother intervened in some way with the result that (CG said) the abuse stopped for about a year (and then it resumed). There were some of the familiar sequelae:

16 During the period of abuse and after, [CG] found it difficult to concentrate at school. Her behaviour deteriorated once she went to High School. She began to associate with an older group. She smoked cigarettes and soon became addicted. By the age of 12 she was regularly using alcohol and cannabis. She began to truant. Unsurprisingly, her school results were poor. She was repeatedly suspended and ultimately expelled. Dr Pickering recorded the following history, providing her reasons for such behaviour: (p 3/4)

“ … if she was not under the influence of some substance, she felt stressed and agitated, and more importantly she could not stop herself thinking about the abuse. Attempts to block these thoughts therefore became the central theme of her (existence) through this period of time. Indeed, [CG] stated that through her life she has been trying to feel ‘normal’ and to do so she needed either to be under the influence of some substance or to have something that was strongly distracting.”

17 Having left school, Ms G. began part time work in a veterinary clinic. She had had, by that time, a number of sexual partners, usually much older. One partner introduced her to heroin. She then lost her job because of drug use. Her boyfriend was arrested for armed robbery and imprisoned. She was, by that time, injecting heroin. By the age of 18 she began working as a prostitute. She also resorted to crime, in association with other prostitutes. She was charged with robbery in company after snatching a bag, and also for stealing a motor vehicle and the possession of a prohibited drug. She was placed on probation for 12 months and required to undergo counselling at the Juvenile Justice Centre in Blacktown.
18 Her drug taking reached the point where her family intervened, apparently on the initiative of her sister who contacted her uncle. In mid September 1999, her uncle arranged for her to enter a 24 hour detox programme with The Poplars Hospital at North Epping. Upon discharge, she was provided with various medications, including Naltrexone, which she took for seven months. The treatment was ultimately successful, although she replaced her addiction to heroin with heavy alcohol consumption and cannabis. She gave the following history to Dr Lisa Brown: (p 7)

“Ms G. said that … she used both of these substances for their calming effect and also because it distracted her from thinking about her past experiences of abuse.”

19 During the period that she was taking Naltrexone, [CG] lived with her parents on the south coast She felt uncomfortable in doing so, but had no choice. She was destitute. During 1999 to 2001 she occasionally worked, mainly as a cleaner. She described herself as having many brief sexual encounters, “one night stands”, and as a result of one she became pregnant. Her daughter, Jessica, was born in July 2001.
20 By the time of Jessica’s birth, [CG] had met her boyfriend, Glenn. Glenn urged her to move out of her parents’ home. At about this time, she had the following realisation, which she described to Dr Lisa Brown: (p 8)

“When her daughter was around three months of age, [CG] said that she experienced the realisation when looking at her father holding the baby that there were possible risks to her daughter of being sexually abused by her father.”

21 Ms G. disclosed these concerns to an early childhood nurse, who contacted DOCS. Soon thereafter, Ms G. moved out of her parents’ home, as her boyfriend had been urging. She was able to satisfy DOCS that the child was not at risk. She did not see her father.
22 Ms G.’s boyfriend also urged her to report her father’s sexual abuse to the police. Her sisters had also been abused. She therefore sought their support. The older sister was said to be too fragile to provide such support. The other sister aligned herself with her mother.
23 On 5 June 2003, Ms G. did report the matter to the police. She described how she was passing a police station and made a “spur of the moment decision” (Dr Brown: p 11). She felt that if she did not do it immediately, she would avoid it, possibly indefinitely. Over the months that followed, she saw the police a number of times. On 17 November 2003, she signed a statement that formed the basis of the prosecution of her father on two counts of indecent assault of a person under the age of 16 years under his authority.

Usually, you have until you are 18, and then 6 years after that, to sue for a wrong done to you in your childhood. If you are suing in relation to a personal injury which was caused negligently or as a result of nuisance or breach of duty, a shorter period of three years applies. However, there is provision in the Limitations Act for the clock to be stopped for any period when you are under a disability. CG’s uncle said (or to be more precise, his insurer’s lawyers said, as to which more below) that, if CG could give a statement to the police, then she could have gone to her lawyers, so that even if the clock was stopped after she was 18 until then, it in any event started running in 2003 so that the proceedings, brought in 2008, were out of time. (At first they assumed that a 6-year period applied, and so latched onto the time when CG told the nurse about the abuse and her fears for her daughter which led to her moving out of her parents’ house.) CG said, and Kirby J accepted, that it was not until she heard her father plead guilty in the District Court at Nowra in November 2006 that the weight was lifted from her so that she was able to go and see lawyers about suing anyone. As a result, the clock was “stopped” until then, so that the action was brought in time.

It is a terrible story, but it is hard to know exactly how this case is going to make anything better. Well, some money will help CG, but this will presumably be at the cost of impoverishing her mother (assuming she lives in a house jointly owned with the father, who is now in gaol) and also, indirectly, taking money away from both her sisters who, according to CG, were also abused. It does not seem possible for a parent, being sued directly or indirectly in this way to bring into account whatever benefits they have provided to their child.

The [maternal] uncle is being sued because CG says that he “acted as the family medical practitioner, writing prescriptions when they were needed and performing similar tasks.” This may be the case, but it may also be disputed: how many avuncular prescriptions make you the family medical practitioner? He is being sued for negligence and breach of statutory duty, namely, a failure to report as required by s 148B(3) of the Child Welfare Act 1939. I expect it is the deep pockets of his medical defence union which are thought to offer the prospect of gold at the end of the rainbow.

PS: the title of this post (for those few who may be unaware) comes from Philip Larkin.

He’s my hero

March 9, 2009

Kristian Bolwell is my hero.

Last July, he was dining at the Cooper’s Arms, a quite swankily done-up pub on the corner of Hordern Street and King Street in Newtown. Police arrived with sniffer dogs and proceeded to execute a sniffer-dog search of everybody present. Not exactly a pleasant turn of events when you are dining out, even if you have nothing to fear.

As Mr Bolwell later said:

“There were eight police and they sealed off the entrances, most stood by the doors and looked fairly mean….A group of them had one guy [Lee Besford] surrounded and it looked to me like they were being intimidating, so I asked if he needed legal advice.”

Mr Bolwell is a solicitor. He said he showed his solicitor’s identity card at the time.

Police weren’t happy about that. They never are. They hate witnesses, to coin a phrase. How can they go about their lawful business of harrassing and intimidating people on a random basis pursuant to their powers to execute sniffer-dog searches if pesky solicitors start popping up and offering people legal advice?

They knocked Mr Bolwell to the ground and pinioned him face-down, arrested him and charged him with hindering police, resisting police in execution of their duty and failure to obey a police direction.

Mr Bolwell sustained a cracked rib.

Senior Constable McCulloch, Constable Jones, Constable Healey, Constable Meyer and Constable Dunn [remember those names and smile and go quietly if you see them!] were all present at the hotel and testified during the trial at the Downing Centre.

During her testimony, Constable Dunn said Mr Bolwell “pushed past” police to approach Mr Besford and appeared “mildly intoxicated”. [Doh! He was at the pub!] Constables Chandler [who did not give evidence], Healey and herself all warned him to move away, she said, but he refused – claiming he was a solicitor. Constable Dunn said she saw Constable Healey trapped between some chairs and the accused – at which time Constable Healey tried to push Mr Bolwell away. But she said that Mr Bolwell resisted by using his body weight to push against Constable Healey. However, Constable Healey said Mr Bolwell “eased past him” and approached Mr Besford.

Local Court Magistrate Dr Gabriel Fleming found that there were inconsistencies in the evidence and that the security footage which was also tendered offered insufficient evidence that police were hindered from doing their duty. Subsequently all charges were dismissed and the police were ordered to pay Mr Bolwell’s legal fees.

I can’t say I would have had the courage to do what Mr Bolwell did. But then, unlike Mr Bolwell, I am not a former Greens parliamentary staffer and campaigner against arbitrary use of police powers, including random sniffer-dog searches like this.

Mr Bolwell has indicated he may be taking further proceedings against the police. This may be harder than beating the charges, because when you are a defendant to criminal charges you only have to raise a reasonable doubt, whereas to bring a civil case for assault or wrongful arrest the burden is considerably higher – you have to prove your case on the balance of probabilities and (in general terms) the police are allowed quite a lot of leeway – you have to establish that they acted without reasonable cause. It’s rare that anyone has a victory of the sort that Adam Houda had, and even in that case we haven’t heard that it has hurt the police officers’ careers at all.

Acting Superintendent of Newtown Local Area Command, Superintendent Matt Appleton, said:

“Dog operations are a legitimate and appropriate policing strategy [….] We are looking to attack the problem of drugs in the community and to keep the community safe.”

Greens MLC Sylvia Hale renewed her call that the police stop using sniffer dogs for random raids. You can read the ombudsman’s 2006 report about the use of sniffer dogs here. Quite apart from the points the ombudsman makes about proportionality and efficiency of these raids, you have to ask whether the success such raids achieve is worth the price of rubbing everybody’s noses in their helplessness in the face of the might of the state, personified by bullying police. I guess my views on this are reasonably clear.

Messy lives and a tangled web

March 6, 2009

Under the Property (Relationships) Act 1984 (NSW), people who have been in a de facto relationship which has come to an end can apply for an adjustment of their respective property interests. The usual principle is that their affairs should be disentangled in accordance with their respective contributions to property they have each acquired during their relationship. The exact wording is:

On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable…

and this is to be done “having to regard to”

the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them

and (this is the feminist clause, at least in its genesis):

the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely …[paraphrase: a child of the parties (this means both of them) or accepted into their household].

For relationships coming to an end on or after 1 March 2009, this act no longer applies, and different principles will apply under the (Commonwealth) Family Law Act, but there are still plenty of cases in the pipeline where the 1984 act will apply.

As a judge rightly pointed out in a matter where I recently appeared, people can have messy lives. It can often be difficult to work out exactly what the legal basis of their proprietary interests are, not least where they have had their own reasons for muddying the waters. The recent judgment in Whiting v Whiting provides a good example of this. The particular question it poses as I see it is what is the position when, after the relationship comes to an end, one of the parties receives an inheritance which is greater in amount as a result of contributions by the other or even by both of them together during the period of their relationship?

Mr Whiting and Mrs Whiting lived in a de facto relationship from 1968 to 2001. Mrs Whiting had a son from a previous relationship who grew up with them.

Mr Whiting was a builder and, it seems, also a developer. His businesses ran into financial difficulties. That is pretty much par for the course for builders and also for developers. In 1993, the Whitings moved from near Grafton (on the NSW north coast) to Bankstown (a suburb of Sydney) to live with and near Mrs Whiting’s mother, Mrs Holley. Mr Whiting built a second house on Mrs Holley’s block of land there.

In 1998, Mr Whiting went bankrupt as a result of a guarantee he had given for a loan to one of the companies through which he conducted his businesses. He was examined on the application of his trustee in bankruptcy, apparently in an attempt to identify whether his half share (the other half was owned by Mrs Whiting) in WTH, the company through which he had conducted his operations as a builder, was worth anything as a result of the house which had been built on Mrs Holley’s block of land. Mr Whiting said at that time that his [quasi] mother in law had given them somewhere to live so that they wouldn’t have to pay rent. When asked what Mrs Holley had given him in return for building a house on her land, he said “Nothing. Not a thing.” He said that there was no agreement between the company and Mrs Holley in relation to the construction of the house.

That is understandable – it wasn’t in his interests to assert any entitlement which would pass to his trustee in bankruptcy to be divvied up amongst his creditors. Nor was it in Mrs Whiting’s interest that any part of the property then owned by Mrs Holley and likely to pass to her would be subject to such a claim. But it would come back to bite Mr Whiting.

Mr Whiting continued to work as a builder, using WTH (at this stage half owned by his wife and half owned by the trustee in bankruptcy) as a vehicle for this. Mrs Whiting was involved as she was also a shareholder and (it seems) a director, perhaps the only director, and funds received by the company and paid out were banked or dealt with in an account of hers, as well (it would seem) as in account in the name of company. Not all the funds were banked. Mrs Whiting’s signature thus appeared on cheques, but her evidence was to the effect that she had no real knowledge of affairs and acted under the control of Mr Whiting.

In October 1999 Mrs Whiting bought the shares formerly owned by Mr Whiting from the bankruptcy trustee for $75,000. Her cousin (subsequently executrix of Mrs Holley’s estate) Mrs Houghton said that she had lent her this money out of her own (Mrs Houghton’s) own funds, and a written loan agreement had been drawn up by solicitors to record this. Mr Whiting said that this was a sham and the money really came from cash which was kept in a safe in their house, presumably being in part the unbanked funds received by the company which, in effect, Mr Whiting was operating, and otherwise from Mrs Whiting.

If so, this was a sham which Mr Whiting had some part in. In this way he had worked for the company and accumulated funds (when normally as a bankrupt you are required to make contributions over a fairly minimal wage towards paying off your debts) with which he probably got the trustee off his back and Mrs Whiting (but in reality Mr Whiting, so long as the relationship lasted) regained control of his business. In addition, the cash came from takings which were presumably never disclosed in the accounts of WTH or otherwise disclosed to the Taxation Office.

The relationship came to an end. On 25 March 2001 Mrs Holley asked Mr Whiting to leave and he was escorted from the property by the police.

After that, the business of WTH came to an end. Mrs Whiting collected amounts due to the company and presumably paid off the debts; she sold a truck and some other equipment. Any money left over, she kept. She said this was about $23,000.

In 2001 Mr Whiting commenced proceedings against Mrs Whiting for an adjustment of property following the end of their de facto relationship, and against Mrs Holley claiming that she held the property on constructive trust for him in respect of his contribution in relation to building the house and on the basis of various promises he said she had made to him. Mrs Holley was suffering from cancer and obtained an order for an expedited hearing (that is, an order for the matter to be determined more quickly). Justice Bryson dismissed the proceedings on 14 June 2002 because Mr Whiting had not complied with procedural directions. The effect of such a dismissal was simply to bring the proceedings to an end: it did not amount to a judgment in Mrs Whiting’s or Mrs Holley’s favour, though before Mr Whiting could commence fresh proceedings he would need to pay their costs of the dismissed proceedings.

Mrs Whiting died on 1 October 2002. Mrs Whiting inherited the bulk of her mother’s estate. In effect, this was the house, which was sold. Mrs Whiting bought another house with the proceeds and a relatively small mortgage.

You can understand that Mr Whiting may well have felt aggrieved. Whatever arrangement he and his wife had entered into to protect or retrieve his business and the accumulated and ongoing profits of his labours from his bankruptcy led, in the end, to all of those assets, such as they were, belonging to his wife (except, possibly, for some cash – see further below). He had built a house on his quasi-mother-in-law’s land, but his case had been thrown out of court because he wasn’t able to get it ready in time before she died. And now it was Mrs Whiting who ended up receiving whatever increase in the value of the property resulted from that house being built.

In April 2006, Mr Whiting commenced fresh proceedings against Mrs Whiting under the Property Relationships Act. He needed to obtain an extension of time to do this, but that was granted to him. His heart must have sunk when he found out that his case was to be heard by the same judge who had previously thrown his case out, since retired and now serving as an acting judge.

NSW judges are obliged to retire at 72. I am not a fan of the increasing practice to re-appoint them after that on acting commissions. The attraction for the state is that these appointments are cheap because they do not lead to fresh judicial pensions arising and they are for a fixed term so that, if judicial business declines, the state is not left with a judge who potentially must be kept in office until retirement age. There are other questions also about whether such judges have the necessary independence, since clearly the Attorney General need not re-appoint any acting judge whose decisions the government isn’t happy with.

And there is another factor which it is difficult to avoid being blunt about. Justice Bryson is a well-respected judge (he became a judge of appeal before he retired) but even before he went to the Court of Appeal he had a bit of a reputation for grumpiness on the bench. He’s always been prepared to be forthright and to make robust findings of fact. That’s good if he’s going your way but not so good if he’s going against you. These are characteristics which do not tend to diminish with age.

Obviously Mr Whiting’s case had its difficulties. He was caught up in a tangled web, but he was not the only one. After their separation, Mrs Whiting had entered into a number of transactions with her mother, including the sale of her jewellery collection (“the accumulation of many gifts which Mr Whiting had made to her over many years”) to her for $5,000 and subsequent purchase back, which appear highly colourable as attempts to disguise and minimise Mrs Whiting’s assets in order to foil any claim by him. Mr Whiting said the jewellery was worth between $50,000 to $100,000, but Justice Bryson rejected this evidence as Mr Whiting was not an expert valuer of jewellery. All Mr Whiting could have said was how much he paid for it, though obviously that might be less or more than it would now be worth. It’s not clear why he did not attempt to do this, other than the obvious difficulty one might have in giving evidence of such matters, particularly on the hop once the evidence was objected to at trial.

It would have been hard for Mr Whiting to get expert evidence as to the jewellery’s value because at a time when Mrs Whiting knew that Mr Whiting claimed the jewellery was worth, Mrs Whiting said that she had flushed it all down the toilet after “what she seems to have regarded as a disheartening experience at a mediation session.” Justice Bryson didn’t believe this, and found that she had either sold it or still had it.

So there was every reason why Mr Whiting might feel and behave rather combatively. Acting Justice Bryson took a set against him for this very reason. He said:

“Mr Whiting gave me a very poor impression while giving evidence. He gave evidence in a highly combative way, with some expressions of hostility. I do not regard his evidence as reliable.”

The remaining big ticket item in the dispute was whether any part of the enhancement of the value of the the property by reason of the building work undertaken by Mr Whiting or his company, now in Mrs Whiting’s hands, should be considered to be property of the relationship now available to be divided up. If it was property of the relationship, then it would generally then fall to be divided according to what the respective contributions of the parties were to that property, though in the case of such a long standing relationship this would usually be divided fifty-fifty.

Of course, Mrs Whiting received this from her mother after the relationship came to an end, so that usually it would not be considered to be property accumulated during the relationship. Gifts from family members during a relationship are normally credited to the person whose relative made the contribution.

Bryson AJ seems to have considered this question to be determined by whether or not Mr Whiting was entitled as against Mrs Holley to a constructive trust in his favour, so that whatever the extent of that trust, it was really his property before it came to Mrs Whiting. I am not sure if this is really the right approach. The statute requires consideration of “the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them ” What about the extent to which Mr Whiting’s efforts increased the value of what Mrs Whiting ultimately inherited?

I also think his Honour overlooked the extent to which the improvement in the value of the house and also the company’s assets arose from the manner in which, as is common, Mr Whiting worked through his company but did not necessarily take payment in full from the company from his work, being content to leave the value of his labour in the company which at first he and his wife, and later he and his wife, owned.

This seems to me to be tied up with the source of the $75,000 with which the trustee was bought out. Here the clincher was the involvement of the cousin, Mrs Houghton, since his Honour wasn’t necessarily going to believe either Mr or Mrs Whiting.

At this stage, the best I can do is to quote from His Honour’s judgment:

21 In October 1999 Mrs Whiting bought the shares formerly owned by Mr Whiting from the bankruptcy trustee Mr Donnelly, in whom the shares had vested upon the bankruptcy. The price paid was $75,000.00. According to the evidence of Mrs Whiting and of Mrs Pam Houghton, her cousin, who was then a bank officer, the $75,000.00 was paid to Mr Donnelly by bank cheque which Mrs Houghton obtained, from her own resources, in an arrangement to lend that amount to Mrs Whiting. The arrangement is evidenced by a written loan agreement, prepared by solicitors.
22 According to Mr Whiting’s case this was not the true source of the $75,000.00 which was paid for the shares. He alleges that Mrs Whiting put money into Mrs Houghton’s control, and into Mrs Houghton’s bank account, by misdirecting funds in several ways and in several different instalments; one of these was by taking money in cash out of a safe in the house at Daphne Avenue which Mr Whiting and Mrs Whiting then occupied. It is not clear whose money this is said to have been: it is hardly likely to have belonged to Mr Whiting himself, in his circumstances as a bankrupt, and if it belonged to WTH it is not Mr Whiting’s business to complain if it was misappropriated, because he did not have any interest in the company at that time. The most probable origin of the funds in the safe were that they arose from work for which WTH was entitled to payment. If one real source of funds to pay for the shares was money out of the safe as Mr Whiting alleges, that would not be a contribution by Mr Whiting to Mrs Whiting’s acquisition of half the shares and consequent control of WTH.
23 I do not accept the account, given by Mr Whiting in paragraph 18.6 of his principal affidavit, according to which Mrs Whiting told him, not that she was to buy shares in WTH but that she had to pay the official trustee’s firm $75,000.000 “because they say they are going to take my mother’s home. I will pay them from the money in the safe and will take the rest out of the business bank account”. In Mr Whiting’s evidence he took $45,000.00 in money from the safe in the house at 19A Daphne Avenue and gave it to Mrs Whiting, and she told him that she and her mother would put the money in Mrs Houghton’s account, “or similar”. He mentioned other sources from which he conjectured money was obtained to pay to Mrs Houghton. I do not believe what he says about these things. I do not believe that he gave approximately $45,000.00 of the money in the safe to Mrs Whiting, and I do not believe that Mrs Whiting received any such sum, or that she put it and other sums into Mrs Houghton’s control, so as to give colour to the $75,000.00 being advanced by Mrs Houghton. Mr Whiting’s narration, which has elements of fantasy, is far outweighed by Mrs Houghton’s evidence: she appeared to me to be a sober and careful witness, a person very unlikely to be constructing a sham transaction, and I find that she was truthful about the origin of the money advanced. An aspect of what Mr Whiting says which I regard as strikingly improbable is Mr Whiting’s claim that he did not know at the time that Mrs Whiting was acquiring the shares in WTH. However this is significant only as to his credibility.
24 I am satisfied and I find that Mrs Whiting bought the shares using money lent to her by Mrs Houghton. I do not doubt the evidence of Mrs Houghton and I regard it as clear that she was the true owner of the money which she advanced.
25 In my finding Mr Whiting’s claim or theory about the true source of the $75,000.00 is luridly improbable. Evidence of Mrs Whiting, and also the evidence of Mrs Houghton, showed that the loan transaction was genuine, and they adhered to their evidence firmly. My confidence that their evidence on these subjects was accurate is not disturbed by what were said to be anomalies in their explanations of some banking transactions from about that time: or by any difficulties in their explaining banking transactions from later times. It is not surprising, and in no way suggests that their evidence on the main subject was fabricated, that they were unable to explain in detail other transactions recorded in their bank accounts about that time: or at later times. It would be unremarkable that cousins with a good relationship had other transactions or that there were other aspects of this transaction which they are unable to explain after 10 years.

I am never happy when a judge purports to determine such matters on demeanour or even on the basis that a witness is otherwise respectable. In my experience, such people are capable of all sorts of things, especially in family disputes. Bank officers are perfectly capable of lying with composure.

Whilst the relationship was subsisting, the obtaining of the shares in WTH by Mrs Whiting was not adverse to Mr Whiting’s interests: as a bankrupt he could hardly have purchased the shares himself and it was likely that it was necessary to give the impression to the trustee that Mrs Houghton was the source of the funds to buy the shares. It is true that it is mystifying that Mr Whiting claims not to have known that Mrs Whiting had purchased the shares, but in the light of the previous hypothesis explored by the trustee that WTH had some interest in Mrs Holley’s property or entitlement to be paid by her, the account that the payment was necessary to prevent the trustee taking Mrs Holley’s house seems quite plausible and I don’t find it particularly improbable that Mr Whiting didn’t understand the exact form of the transaction as opposed to what he said he had been told of its effect or its motivation. He doesn’t seem really to have turned his mind to who owned the other half of WTH at this time, even though he was still conducting his business through it and so allowing it to obtain any profit from that work (subject, that is, to how he dealt with the money in the safe).

As a cousin with good relations with Mrs Whiting and, it seems, Mrs Holley, there is every reason why Mrs Houghton might have got involved with this and now adhere to a version which advantaged Mrs Whiting. There is a strange coincidence between the $45,000 claimed to have been in the safe and the $30,000 said to have been lent by Mrs Houghton to Mrs Holley and the total of $75,000 paid to the trustee. It is not clear how, if ever, Mrs Whiting repaid the $75,000 to Mrs Houghton, though it is clear that they could not explain all the transactions between them. I don’t think Mr Whiting’s claims can be dismissed as “luridly improbable.”

In the end, his Honour disregarded the jewellery, which he held Mrs Whiting had (or its proceeds) and the cash from the safe, which he held (for reasons which he doesn’t really make clear) Mr Whiting had taken. He was left with the following assets of the relationship:

35 The assets at separation which had sufficient value and of which is sufficient is known for notice to be taken of them are these:

All the shares in WTH. These yielded $23,996.53, which Mrs Whiting received.

Furniture — Mrs Whiting has the furniture and I treat it as worth $10,000.

Optus Shares — these yielded $3000 which Mrs Whiting received.

Billiard table — this was sold and Mrs Whiting received $1000.

Kawai Grand Piano — Mrs Whiting has the Piano and I treat it as worth $1000.

1988 Honda Car — Mrs Whiting kept the car and it was worth $5,000.

36 I attribute the total $43,996.53 to the assets which went to Mrs Whiting on separation. This is a very imprecise evaluation.

His Honour is clearly not a musician or even a pianist. The piano was bought in 1989 and Mr Whiting said it was worth $10,000. That seems about right to me. Unless it is in truly terrible condition, it certainly can’t be worth less than seven or eight grand.

To return to the judgment:

38 This is meagre value indeed for a relationship which lasted over 30 years, and very little to fight a three-day lawsuit over, but it is all there is. A great deal was done about property work and earnings during the relationship. Mr Whiting was busy with building and development projects. Mrs Whiting was the main contributor at home and she worked for much of the time. At times there was considerable prosperity, with overseas holidays. Her son was about five years of age when the relationship began and left when he was seventeen. Mr Whiting took the place of a father towards him in many ways, although looking backwards the son is not happy with all his treatment and things ended badly between them. Still Mr Whiting did make a significant contribution at the time. Decades of effort and contribution by both parties produced very little result in terms of property acquired. Each party made large contributions of the kinds mentioned in s 20(1)(a) over the decades, of work and effort and also contributions of the kinds in s 20(1)(b), and there is no way of attributing the small proceeds to one or the other which can improve on equal attribution. The only assets at separation now available are the Grand Piano and some of the furniture. Money proceeds of assets can no longer be traced, but contributed in a general way to Mrs Whiting’s present asset position.
39 The power to order adjustment extends to all property now owned by the parties. Considerations of justice and equity relate primarily to assets at separation. Considerations of justice and equity could lead to a discretionary order for adjustment if they related to property acquired after separation, but only by reference to considerations which relate the acquisition to contributions made during the relationship. In concept contributions made during the relationship could bring about an acquisition after separation, but that has not happened in this case. In concept there can be contributions to welfare after separation, but that has not happened in this case.
40 Unlike what usually happens when proceedings are brought soon after separation, the parties re-established themselves in the five years and more until these proceedings were commenced. The parties’ present assets are available to be the subject of an order for adjustment. In the almost 8 years since separation Mr Whiting has re-established himself in business, has a home and an investment property in which he has minority co-ownership interests in his later relationship with a new partner, and has significant mortgage debts which he has earning capacity to enable him to deal with. Mrs Whiting has had employment most of the time. Mrs Whiting has a home which is mortgaged for an amount which it will be difficult for her to deal with having regard to her relatively modest earning capacity. Mr Whiting is relatively better off than she is. Mrs Whiting’s present asset position is almost wholly attributable to Mrs Holley’s testamentary gift. It is probable and I find that Mr Whiting obtained a large amount of cash at separation, used it to help re-establish himself and has not revealed its existence or value. This strongly disposes me against awarding him any sum: I do not know whether such an adjustment would be just. In a similar way I do not know what value passed to Mrs Whiting in the jewellery; but she is not asking me to award anything to her.
41 In my judgment the Court’s order should require delivery to the plaintiff of the Grand Piano, which is the only significant asset from the relationship now traceable; Mr Whiting values it at $10,000, but this is more than it is worth. No other adjustment should be ordered.
42 This is not a case where either party should have an order for costs.

That does not strike me as entirely fair.

Mrs Whiting gets away with the jewellery because she has it or its proceeds and therefore is not asking to be awarded anything in relation to it, but Mr Whiting has the unknown amount of cash held against him on what to me seems to be pretty flimsy (and certainly totally unarticulated) reasoning. No account has been taken of the extent to which his work contributed to the balance of the proceeds from the company or the value of Mrs Holley’s property when sold which then passed to Mrs Whiting, even if that work should be counted as part of their joint efforts (and maybe this is where the case went off the rails). In other words, I don’t agree with his honour or at least I have considerable doubts on the basis of the reasoning as he sets it out that:

In concept contributions made during the relationship could bring about an acquisition after separation, but that has not happened in this case.

I can’t see how it is at all relevant that other money received by Mrs Whiting can no longer be traced: she is better off by its receipt, even if she has spent it.

To take into consideration their relative financial positions now would be relevant under the Family Law Act now but it is really stretching it to bring it in under the rubric of what is just and equitable under the Property (Relationships) Act.

The problem for Mr Whiting is that the vigour (aka forthrightness) with which Acting Justice Bryson has made adverse conclusions about his credit is likely to be an obstacle to any appeal.

At least he got the grand piano.

You say hijab; I say jihad…

March 4, 2009

Or vice versa.

In the heart of Western Sydney, five men are facing terrorism charges. They are amongst 8 men who were arrested in NSW and a further 9 men who were arrested in Melbourne in November 2005, just four days after legislation was passed creating some of the offences with which they were charged. They had been under surveillance for the previous 18 months. They have been in gaol ever since. The trial is likely to set a record so far as its length is concerned: it could easily go for the rest of the year and longer.

The charges are serious: some indication of the sentences they might be facing might be gleaned from the 20-year sentence (15 years non-parole) dished out to an offender by the same judge in 2006, which was upheld on appeal by the Court of Criminal Appeal from which special leave to appeal has been refused by the High Court.

The trial commenced with consideration of preliminary legal matters early last year. The trial before the jury commenced in about November last year.

Typically, the prosecution opening got a big splash at the beginning of the jury phase of the trial, but since then there has been remarkably little press coverage. One reason may be that the daily grind of a long trial is just too boring; another is possibly the existence of suppression orders.

The wonderful thing about suppression orders is that you don’t even get told that they exist. They make it difficult for justice to be seen to be done – usually thought of as quite an important consideration. You could go to court and see for yourself what is going on. In fact, that is why we know that there was at least one suppression order, because it was subsequently lifted.

As a result we now know that, shortly after the commencement of the jury phase of the trial, a number of jurors complained that they had been followed from the court to where they were parked by a woman wearing a hijab who had sat at the back of the court and who acted suspiciously, including writing things down. They seem to have feared she was noting their vehicle registration numbers for the purpose of any possible subsequent reprisal against them.

The judge had previously ordered that some of the more elaborate security proposals not be implemented because they would be too prejudicial, but that doesn’t mean that the brouhaha and extreme sense of drama may not all the same have done their work in exciting the jurors’ fears.

A note was passed to the judge about this on 26 November 2008; the suppression order was lifted to enable this to be reported on 20 December 2008.

The judge told them all that he would have the police investigate the matter, but that they shouldn’t assume that the accused had anything to do with it any more than a football team had anything to do with over-the-top behaviour by the team’s supporters. Of course this statement contains a big “even if” premiss which is itself potentially pretty prejudicial.

Presumably the woman in question has since been investigated: that would be a very serious offence, and we have heard nothing of any charges being laid, though they too might be the subject of a suppression order for all we know. It seems to me to be highly probable that if a number of jurors had reason to find the parking location convenient, so might anybody else who chose to attend the trial.

At what point do such fears in themselves provide a basis for saying that the jury has been prejudicially tainted?

The judge told the jurors to keep an open mind and asked them if they were able to. Through the foreman, they replied “”Every juror remains able to discharge his or her task as a juror in this trial impartially.”

In the immortal words of Mandy Rice-Davies, they would say that, wouldn’t they?

In case you are wondering, I’ve not named the judge or the venue or the offender who has been sentenced because I don’t want this page to be found by any jurors in the event that, contrary to directions which must have been given to them, they engage in any casual googling about any of this. You can click on the links to find those things out.

It’s the principle

February 13, 2009

A racy opening to the latest judgment in the High Court:

On Monday 14 July 1997, Mrs Maria Bergamin arrived at an office building at 5 Bowen Crescent, Melbourne. There she found that the foyer of the building had been badly damaged. A glass and stone partition, timber panelling and stone floor tiles had been removed. She was shocked and dismayed to see what remained of the floor stone work being jack hammered. A large bin was filled with the debris of the foyer. This destruction had been carried out by a tenant, Tabcorp Holdings Ltd (“the Tenant”), the appellant in this appeal.

Why was Mrs Bergamin shocked and dismayed? She was a director of the respondent, Bowen Investments Pty Ltd (“the Landlord”), a company which owned the building. She had taken particular care over and interest in the construction of the foyer. It was of high quality. It was made of special materials – San Francisco Green granite, Canberra York Grey granite, and sequence-matched crown-cut American cherry. The construction of the foyer had been completed less than six months earlier. The Tenant had taken possession under a lease granted by the Landlord less than six months earlier. The lease contained a covenant, cl 2.13, forbidding the Tenant to alter the premises without the prior written approval of the Landlord. Mrs Bergamin had on Thursday 10 July 1997 arranged for the Tenant to be told that the Landlord did not consent to any alteration to the foyer. Mrs Bergamin had informed the Tenant in writing on Friday 11 July 1997 that the Landlord could not consent until the Tenant’s proposed alterations were examined at a site meeting at 11am on Monday 14 July 1997. It was when Mrs Bergamin arrived at 10.45am on 14 July 1997 in order to attend that site meeting that she observed the destruction which had taken place and which was continuing to take place. The trial judge specifically found that the Tenant was well aware that written consent from the Landlord to do what the Tenant had done was needed, and that that consent did not exist.

OK, the second paragraph gets bogged down a bit in the detail, but it’s still pretty punchy. It’s a unanimous joint judgment, so we can only guess who is the latter-day Denning (Lord, not Ray, the famous prison escapee).

The tenant took the view that it could do what it liked and if it had demolished the foyer without consent it only had to pay the difference in the value of the property at the end of the lease.

Mrs Bergamin must have been furious, and she and her husband stuck to their guns. They wanted the money it would cost to reinstate the foyer to its original condition. As a colleague once said to me, “I love it when a client says to me ‘It’s the principle.'”

The trial judge agreed with the tenant’s approach, and awarded the landlord a paltry $38,000 in damages. This was the cost of restoring the premises to its original lettable area (there was, oddly, an award of $1,000 as “nominal damages”). Other than that, he held that the unauthorised works did not make any difference to the value of the property.

The Full Federal Court awarded the landlord reinstatement costs of $1.38 million.

The High Court rejected the tenant’s appeal. From their Olympian vantage point (gods not games), it all seems pretty simple. The so-called “doctrine of efficient breach” was decisively rejected. Nor was it necessary for the landlord actually to intend to do the rectification work in order to receive such damages – it was sufficient if the rectification was “necessary and reasonable” to put the landlord in the position it would have been if the lease conditions had been observed.

The judgment is destined to enter the contracts textbooks and probably casebooks, at least in Australia. For litigators and old hands there are a number of other twists and turns between the trial and the final appeal which which will probably be passed over in contracts courses and which are too complex to go into here.

Tabcorp is still in occupation under a subsequent lease which expressly preserved the landlord’s rights under the original lease, so it is too early to tell whether the landlord will or will not actually carry out the rectification. Students of the future may well be curious to know. Personally, I’d savour the decision more if the Bergamins simply kept the money, as they are entitled to do. The principle is good, but the money is even better!

It is worth noting that in NSW and other states which have adopted a 1927 English statutory reform of the common law, the damages would probably have been as the trial judge awarded.

Slander – 2

December 28, 2008

Judge Judith Gibson has delivered another judgment in relation to a neighbourhood slander which, courtesy of the slow Xmas news period, has been belatedly reported by the SMH’s Crime(!) Editor.

BV told two other parents at the school attended by BV’s and PK’s and AK’s children that PK and AK were not trustworthy people who had ripped him off. In addition PK and AK’s children were upset as a result of things said at school by BV’s children, which were presumably a repetition of things said at home by BV in their hearing. Previously the families had been close and had a business and a religious association (PK and AK have 8 children) going back many years.

No statements by BV to his children were pleaded as defamatory publications

This was Judge Gibson’s second judgment, delivered on 9 December 2008. On 8 December 2008, when a four-day trial was set down to commence, there was no appearance by the defendants, whose legal representatives had ceased to act about a month previously. On the application of the plaintiffs, Judge Gibson struck out the entirety of the defence. This included defences of truth or contextual truth (roughly, it was mostly true) and that an apology had been offered (an “offer of amends”).

The playground repetition of the slander was not itself the matter complained of, but its effects on the Ks’ children were held to be factors warranting an awared of “aggravated compensatory damages.” This of itself is a bit alarming: watch what you say in front of your children! You can’t determine how alarming it is, because her Honour did not give an unaggravated damages figure and say how much difference the aggravation made, but rather, having found aggravation, delivered an inscrutable round-figure verdict.

Easiest at this point to quote from the judgment [emphasis added]:

What are the features warranting the award of aggravated compensatory damages here? The first and most obvious is the bringing of a defence of truth. Filing a defence of truth recklessly will inflame the damages: Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 262. This was, moreover, a hopeless defence and one which I have struck out: PK v BV. Even if the defendant had attended and led evidence along the lines particularised (and I note I have set out the particulars in some detail in my judgment of 8 December), these particulars would establish no more than some kind of commercial dispute about a late payment. There is nothing in the particulars to support the truth of any of the imputations.

It is as well to set out the particulars in question, which are to be found in the first judgment [emphasis again added]:

“i) In or about August 2005 the plaintiffs asked the defendant [sic] and the defendant agreed to loan without security certain moneys to the plaintiffs.

ii) The plaintiffs or each of them agreed to prepare a written document in relation to the said loan.

ii)[sic] In order to induce the defendant to make the loan, the plaintiffs and each of them made certain representations to the defendant which the plaintiffs knew or should have known were untrue and false and that the plaintiffs made such untrue and false representations with the intention that the defendant would be, and he was thereby induced to enter the lending transaction.

iii) The plaintiffs represented that they or both of them had expertise and knowledge sufficient to enable the preparation of proper and binding loan documents and that they would use their best endeavours to draw valid and effective documents.

iv) Despite the representation of the plaintiffs they and both of them in truth believed that the said documents were on their terms void for uncertainty.

v) The said documents were executed by and at the direction of the plaintiffs.

vi) The plaintiffs arranged and explained or instructed the defendant as to the manner and method of execution of the said loan documents in circumstances where the defendants [sic] [should be plaintiffs, obviously] knew or believed that the execution of the documents was defective and did not in their belief create to [sic] legally enforceable rights, or, upon becoming aware of the same failed to warn the defendant.

vii) In addition, the plaintiffs represented to the defendant [sic] that the plaintiffs and [sic] neither of them was able to provide security for the said lending.

viii) The plaintiff [sic] and both of them in truth knew that the plaintiffs did have assets which at all relevant times could have been used to secure the loan.

ix) Such representations with the knowledge of the plaintiffs was [sic] intended to, and in fact did, induce the defendant to enter into the lending transaction.

x) The plaintiffs and each of them represented that they would repay the loan in full on or before 12 December 2006.

xi) The plaintiffs did not repay the full loan on or before 12 December 2006 and either knew or should have known that they would have in truth been unable to do so.

xii) In the premises all and any of the imputations were true.”

So, to put it more simply PV, the defendant, says (it’s just an allegation we’re talking about, in case their lawyer is reading) that the Ks, the plaintiffs, got him to lend them money. They prepared a written document which he and they signed. They knew it was not legally enforceable against them because it was expressed too vaguely. They also induced PV to lend them money on an unsecured basis by telling him falsely that they had no assets to offer as security when they knew they did have assets which they could have offered. They also said they would repay the money in December 2006. It’s not clear if they have subsequently repaid it though the tenor of the slander suggests that they haven’t.

That sounds like a lot more than a dispute about the late repayment of money to me. It is an allegation of fraud without which the loan might never have been made or made in the form in which it was made. I can’t say whether this would amount to a defence of contextual truth, though it certainly looks like more of one than Judge Gibson seems to have thought. What it does show is that, once you are on a winning streak in a case like this, you just keep on winning, and conversely, if you are losing, you just keep on losing, and especially if you are not there.

This is especially so in defamation, because though it is for the plaintiff to establish that the hurtful things were said, the plaintiff does not have to prove that they are untrue. If they are hurtful in the requisite way (ie, defamatory) it will be for the defendant to establish their truth by way of a defence. In the absence of such proof, the defamatory statements are assumed to be untrue and all the more shocking and harmful because of that.

We will never know whether what PV said was true. Because he gave up, quite possibly because he didn’t have the money to fund a four-day trial, it is presumed, in the trial, not to be true. But you can’t just stop defending an action: your opponents will just get in heaps of free kicks in your absence, as some of the excerpts of evidence recounted by her Honour in her judgment make plain.

Her Honour was particularly concerned about the aggravation as a result of the remarks made by PV’s children:

37. The circumstances in which the defendant’s children insulted the plaintiffs’ children, including making statements in the course of a scripture class, and leading to school bullying which had the plaintiffs’ daughter hiding in the girl’s toilet for three days, required the plaintiffs to sit down with all of their children to explain what has happened, “in case they heard something outside our home” (transcript, page 32). This is very powerful evidence.

38. The defendant must have been aware of the very close relationship between his children and the plaintiffs’ children, and for a dispute between adults to be used as a punitive weapon in the school yard is conduct which shows aggravating features of the highest kind. In fact, I cannot recall ever reading any defamation judgments referring to repetition amongst children. It must be a very rare occurrence, and, in my view, is an appropriate matter for aggravated compensatory damages.

Excuse me? The plaintiff must have been aware of this, even though her Honour, defamation maven par excellence, cannot recall ever reading of such a case in a judgment before and is of the view it must be a very rare occurrence?

I’m seriously wondering if Gibson DCJ has entirely thought through the ramifications of her decision. By a series of little steps, all of them comparatively normal and by the book for a defamation lawyer (because they look at these things all the time through the telescope turned back to front of their professional commitment to the cause of action) I think she has reached a quite remarkable and also questionable conclusion.

Simpsons’ child pornography

December 9, 2008

As has been widely reported, Justice Adams in the NSW Supreme Court has held that “an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography.”

Actually, that is not quite true. Justice Adams has held that the internet cartoon was not not child pornography by reason of it not representing a “person.” That is because the case he heard was an appeal from a Magistrate Favretto in the Local Court, who held that the images were child pornography, and sentenced a Mr McEwen to fines of $2,000 and $1,000 for parallel state and commonwealth offences and ordered him to enter into good behaviour bonds for two years.

Basically, despite first saying that the difference between animated depictions and performances by actual people was not simply a matter of degree, his Honour then held that nevertheless, because pornography as defined in the statute includes depictions or descriptions of fictional persons, and the commonwealth statute actually makes express reference to cartoons, it really is a matter of degree, or at least a question of fact, whether the representation is a representation of a person, even a fictional person. Because it was a question of fact, the magistrate’s decision stood.

Now, before you go rushing off to search the internet for these cartoons so that you can judge for yourself, let me warn you that if you so much as look at them you will (subject to some possible statutory defences) be committing an offence of using a carriage service to access them. Mr McEwen was also convicted of these offences. If you then copy them to your computer, you will then face a charge of possession as he did.

This is a very depressing case. The case reported yesterday of the man charged with uploading child abuse material because he uploaded a widely-circulated baby-swinging video (which he didn’t make but just found on the internet) is another example of the same sort of thing.

In their determination to stamp out child pornography and child sexual and other abuse, parliaments have enacted extraordinarily wide “catch-all” provisions. Politicians may have thought that these provisions are necessary, a bit like anti-avoidance provisions in the Tax Act, to meet a wide range of possibilities, but these are then being interpreted and enforced literally, to the hilt and beyond, and with a prosecutorial zeal which seems, to me at least, totally out of proportion.

For this, I principally blame the police and prosecutors. But, quite frankly, that is the mindset of the prosecutor, and prosecutors were ever thus. This means that something really needs to be done about the laws. Given the current moral climate, however, change or even legislative second thoughts seem unlikely. That’s what’s depressing.

Papers referred 2

December 4, 2008

In his recent decision Chen v Zhang Justice Rein has struggled with some rather complicated sets of facts as well as a lot of Chinese names in a case involving a claim by Mr (“Peter”) Chen to ownership of “a business known as “Heaven on Earth”, a Chinese Karaoke restaurant and “hostess” lounge, as it was described, at Crows Nest.”

It was Mr Chen’s case that he had initially held 20% of the business and had purchased an additional 50% share in about October 2006 for $130,000. For various reasons which he advanced, mostly to do with requirements for a liquor licence and his capacity to give security for a guarantee of the lease, he said that the lease for the business and the business itself were put in the name of a company, Global Goldstar Pty Ltd, which was owned by Shun Xuan (William) Zhang, who was the brother of his longstanding friend, Wei (Vincent) Zhang. It was Mr (Peter) Chen’s case that William was to receive a payment for the use of his company, including for his giving a guarantee to secure the lease. Chen’s wife, Carol Liu, remained involved in the management of the business up to July 2008. At this point, she was excluded from the operation of the business.

The Zhangs’ case was that the business was theirs, and that they had sacked Ms Liu when they found that she was taking more than the $1,000 per week which they said she was entitled to be paid.

The judge clearly thought that the real reason that the business was put in the hands of Global and the Zhangs was that at the time Chen said he bought the additional share in the business, he was facing charges of money laundering and investigation under proceeds of crime legislation. This was in relation to a series of what were ultimately found to be 333 international money transfer transactions from 14 January 2003 to 4 November 2003 transferring various amounts of money, all less than $10,000, in cash and totalling $3,088,311 in all, to the accounts of six people, one of whom was his brother, at four banks in Hong Kong with the apparent intention of avoiding paying income tax on that money. On 27 March 2008 Chen received a swingeing sentence for this of fifteen years six months ten days (which was a reduction already after taking into account eleven months twenty days spent on remand) and a non-parole sentence of nine years six months ten days from 22 October 2007 (when he was found guilty) to 1 May 2017.

At the time Chen claimed to have purchased the business in October 2006, he had already been charged, and was facing requirements to provide affidavits of his assets and liabilities under the proceeds of crime legislation. In February 2007 Chen provided such an affidavit. That affidavit did not refer to any interest in the business, and nor did it include some other liabilities which were relevant to his account as to how he acquired the business.

Mr Chen said that this was because the affidavit only had to deal with his assets as at 18 October 2006, because the requirement to file the affidavit related to a claim by a Mr Au to the return of a sum of $130,000 found by Australian Federal Police in a vehicle driven by Mr Au and in which Peter was a passenger and seized by them. The judge didn’t buy this.

The Zhangs said that the fact that Mr Chen didn’t mention his interest was because he didn’t own any share in the business. The judge wasn’t so sure about that either.

There is a lot more detail in the judgment which if you are interested you will have to read yourself.

His Honour was not convinced by any of the critical witnesses on either side:

There were a number of aspects of the evidence of each of Peter, Carol, Ms Kuen [Peter’s sister, who he said had lent him money], William and Vincent which make it difficult to accept their credibility. I was left with the impression that they have each endeavoured to present a version of events that avoids the truth, because, for differing reasons, the truth is uncomfortable for them.

Whoever owned the business, the proceedings exposed that double accounts had been maintained and that large amounts of money had been taken out of the business which had not been disclosed to the relevant authorities, including (no surprise here) the tax office. There were also questions of whether the arrangement was entered into to conceal the involvement of Mr Chen, who had a criminal record, from the liquor licencing authorities.

71 Given that neither Peter, on the one hand, or the Zhangs on the other, assert that what was done was part of a scheme to permit Peter to retain his interest but to avoid the business falling under the scrutiny of or within the grasp of authorities, or to preclude rejection or termination of the liquor license, I am left with two competing versions of events as to what occurred, neither of which, in my view, is supported by credible evidence. The plaintiff bears the onus of proof and has failed to establish the agreement asserted. In my view, the plaintiff’s summons should be dismissed.
72 If I had been persuaded that an agreement was reached between Peter and William in the terms alleged by Peter, then, in my view the obvious inference and the one which I would draw, is that it was made in an endeavour to hide Peter’s involvement in the business in order to avoid the prospect of scrutiny and possible seizure of assets by the AFP/ACC and to enable the business to obtain and retain a liquor license that would not have been able to be obtained or retained, had his involvement been disclosed. In my view, the Court should not grant equitable relief in such circumstances: see the discussion in Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (4th edn) 3:110-135 and Kettle and Gas Appliances Ltd v Anthony Hordern and Sons Ltd (1934) 35 SR (NSW) 108, 51 WN (NSW) 190 per Long Innes J, p 93, which although dealing with a different type of case, provides an example of misconduct or deception that will suffice to enliven the operation of the maxim. This lack of “clean hands” or illegality argument was not advanced by the defendant (it is inconsistent with their version of what occurred) but I raised the point during the hearing and in my view it is not dependent on the position taken by the defendant for their own forensic reasons. Mr Gracie argued that to preclude relief would leave the business in the hands of a wrongdoer and that referral of the matters to the relevant authorities would suffice. I do not accept that the Court, exercising its equitable jurisdiction, should grant relief where a party has entered upon a scheme of deliberate deception of public authorities.

But this did not mean that the defendants should get off scot-free:

75 It seems clear on the balance of probabilities that Peter has not provided full details of his assets and liabilities to this Court, and to the AFP or ACC even on his evidence, because he says he owed his sister a further $117,0000 as at 27 February 2007. From the copy of the taxation return of Global in evidence, and Exhibits including H, 9 and 10, it appears that Global may not have declared all of its earnings to the Australian Taxation Office and it is possible on Carol’s evidence that insufficient payroll tax has been paid by Global in respect of wages. I think that the evidence of William and Vincent concerning the deposit of $46,000 in five separate payments raises issues as to possible breaches of the Financial Reporting legislation. I direct the Registrar to provide a copy of this judgment to:
(1) the Australian Federal Police
(2) the Australian Crime Commission
(3) the Australian Taxation Office
(4) the Registrar of the Liquor Licensing Court
(5) the Office of State Revenue (in relation to possible payroll tax issues)
so that these matters can be investigated, should the relevant authorities regard that as appropriate.

76 I direct that Exhibits be held by the Court for a period of six months to allow any of the above authorities to make applications to the Court for access to the documents.

Note about money laundering sentences

Mr Chen is appealing the money-laundering conviction. [Postscript: the appeal, including an appeal against the sentence, has since been dismissed.] As to that stiff sentence, the reasons for this can be followed up in the Court of Criminal Appeal’s judgment in a rare crown appeal against the sentence dished out to the subordinate who actually carried out the transactions. In this they increased the sentence at first instance of 3 years (one year and nine months non-parole) to five and a half years with 3 years and 4 months non-parole. The offence hinges around knowing or being reckless that the funds are to be an instrument of crime. If the crime in question is tax evasion (Mr Chen had a legitimate business exporting seafood, in particular abalone, to Asia, and the subordinate at least was sentenced on the basis that he believed that this was the source of the funds) then these sentences for money laundering seem pretty stiff in comparison to the actual sentences that are generally dished out for tax offences themselves, let alone other white collar crimes involving much larger amounts of money.

For further explanation of the title of this post, see Papers referred.

Further postscript:

This is more a nuts and bolts point from the perspective of a practitioner and the perrennial problem of being paid.

Mr Chen also appealed Rein J’s decision, unsuccessfully, as it turned out. This morphed into a disciplinary complaint against his solicitor, brought following a complaint by his barrister, who wasn’t paid for the appeal (Ms Liu ducked out of the appeal hearing at lunch time, ostensibly to get a cheque from the Bank, but never returned) which was ultimately dismissed in August 2012. It doesn’t look as if the solicitor got paid at all, as the money which was paid into trust at the start to pay the costs of the trial at first instance all went to the barrister, and the appeal thereafter seems to have been conducted on spec.

R v Wood

November 24, 2008

This must surely be my case of the week for last week.

On Friday morning, just short of eight days after they retired to consider their verdict (though they had the weekend off) the jury returned a verdict of guilty against Gordon Wood for the murder of Carolyne Byrne.

This is the end, or probably just the latest instalment, of an incredibly long and colourful saga. It’s a public saga because it is a spin-off from the Offset Alpine saga. Part of the prosecution theory in this case was that Wood killed Byrne because she knew too much, either about Wood’s life as a gopher for the late Rene Rivkin and part of Rivkin’s circle of younger male attendants and assistants or about whatever skullduggery lay behind the acquisition by Rivkin and others of shares in Offset Alpine – shares which took a sharp hike in value after the company’s well-insured printing factory was burnt down in a fire.

That’s not saying anything which almost everybody doesn’t know already. Winston Terracini (counsel for Wood; my elder sister went out with his younger brother at high school – just thought I’d mention that as a six-degrees-of-separation thing) obviously thinks this is part of the problem. As the SMH reported:

Outside court, Mr Terracini said the trial had been lopsided and unfair from the beginning.

“A lot of the media would be very pleased because of the role they have played in securing [a guilty verdict],” he said.

On my way to court on the day the jury retired, I accidentally met Gordon Wood’s eye. In the tradition of press reports, which instantaneously switch over to certainty once a conviction is secured, I suppose I can now say I have met two murderers. The other was positively creepy – and I was appearing for him (but not “alone and without a leader” – it was during my criminal reading, which is a kind of new barrister’s work experience). Wood didn’t seem like a murderer to me – but then, you never can tell, can you? All the same (and I’m thinking especially of Wood’s famous “So do you think I did it?” question to Paul Barry) I wonder if Wood has suffered a kind of Lindy Chamberlain adverse reaction in public opinion for reacting the “wrong” way to the death. Juries are members of the public after all.

Based on the reports of the trial, I find it difficult to accept that this wasn’t a case where there was a reasonable doubt. But, as a criminal lawyer colleague to whom I expressed this view reminded me – if you weren’t at the trial for the whole show, you can’t really judge. That’s the jury’s job.

That’s a kind of necessary faith in the justice process. Because neither I nor the jury were there when Caroline Byrne died, and all we have is the process to make a finding. But I know enough from my own experience how unlike the truth as it looks at least to an advocate (who of course likewise wasn’t there) the results of a trial can come out.

I do wonder to what extent Wood went down because he didn’t testify in his own defence. Juries don’t necessarily take seriously people’s right not to testify, no matter how much the jury is reminded of that right. But jury speculation is a sport which can send you mad.

Now that the verdict is in, the Sydney Morning Herald has been reporting the shock on the Wood-sympathisers’ side, as well as some of the more controversial aspects of Tedeschi’s conduct of the prosecution. Doubtless, those in Wood’s camp will think this hypocritical: it’s just another way to spin the story out. The press must have made a mint out of this case over the years, whereas Wood’s mother has been pushed to the financial brink. At one stage the Legal Aid Commission attempted to to restrict the grant of legal aid to Wood on the basis that his mother still had assets.

There is bound to be an appeal.