Law Geek Down Under

Grants of Special Leave to Appeal in the High Court

2012-03-12T16:16:00.001+11:00

On Friday, 9 March 2012 the High Court heard applicationsfor special leave in Sydney and in Melbourne.

Only one case received a grant ofspecial leave. This was in Likiardoloulos v R, an appeal from theVictorian Court of Appeal in Likiardoupulos v R [2010] VSCA 344. This case willexamine the elements of the offence of murder where the offender does notphysically cause the death of the victim, but is alleged to be part of a “jointcriminal enterprise” that result sin the victim’s death. In particular, it will examine the issue ofwhether it is open to the Crown to argue that the offender “counselled orprocured” others to commit murder, in circumstances where the Crown hadaccepted pleas of guilty to manslaughter by the principal offenders.

In one other case, Sweeney v Thornton, the application forspecial leave was referred to the full bench, to be argued in full as onappeal. This is an appeal from the NSWCourt of Appeal in Thornton vSweeney [2011] NSWCA 244which concerns the content of the duty of care owed by a voluntarysupervisor (not an instructor) to a learner driver.

ALH Group Holdings v Chief Commissioner of State Revenue [2012] HCA 6

2012-03-09T11:43:00.000+11:00

On 5 November 2003 Oakland Glen Pty Ltd entered into acontract with Trust CompanyFiduciary Services Ltd (then known as Permanent Trustee Co Ltd), astrustee of the ALE Direct Property Trust. Under the contract Oakland agreed tosell a parcel of land to Trust Company. No duty was charged on the 2003 contract, Revenue Commissioner havingapproved the transaction for the purposes of section 281 of the Duties Act 1997 (NSW), which concernstransactions in the nature of corporate reconstructions.

On 27 June 2008 Oakland, TrustCompany and ALH Group Property Holdings Pty Ltd executed a document entitled"Deed of Consent and Assignment" under which, in essence: TrustCompany agreed to assign its rights under the 2003 contract to ALH; Oaklandconsented to the assignment; ALH promised Oakland that it would perform Trust Company’sobligations under the 2003 contract; and Oakland released and discharged TrustCompany from all liability under the 2003 contract.

In 2008 a further deed executed byALH and Oakland cancelled the deed of Consent and Assignment. The effect of this cancellation was that dutywas not payable on the Deed of Consent and Assignment, but only if the Deed ofConsent and Assignment was “anagreement for the sale or transfer of dutiable property” within the meaning ofsection 8(1)(b) of the Duties Act 1997. That was the issuefor resolution in the High Court.

In its judgment in ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue [2012] HCA 6 the High Court held that the Deedof Consent and Assignment, despite its title, operated as more than a mereassignment by Trustee Company to ALH of Trust Company’s rights under the 2003Contract. The obligations of the partiesemanated from the Deed of Consent and Assignment, and not from the 2003Contract. The obligation to convey landrequires identification of the person to whom it is to be conveyed. The obligation of Oakland to transfer land toALH, in place of the Trust Company, emanated from the Deed of Consent andAssignment and not from the 2003 Contract. The Deed of Consent and Assignment was therefore an agreement for the sale and transfer of the land. It having been cancelled, no duty waspayable.

Strong v Woolworths Ltd [2012] HCA 5

2012-03-07T13:50:00.003+11:00

I havepreviously said that the judgment in Strong v Woolworths Ltd [2012] HCA 5, which the High Court of Australia deliveredtoday, would either be an important case about the law of causation innegligence cases following the enactment of the Civil Liability Act2002, or a mundane fizzer about what inferences can be drawn as to whetheror not an adequate cleaning system would have prevented the plaintiff’scrutches from slipping on a potato chip on the floor of a shopping centre.

Unfortunately it was the latter. None of the judges in the majority (French CJ, Gummow, Crennan or BellJJ) or in dissent (Heydon J – again) had anything much to say in relation tovarious issues that arise under the CivilLiability Act 2002.

Specifically, the Court declined to deal with the question of whether ornot the statutory formulation of causation may produce a different conclusionto the conclusion yielded by applying the common law.

Nor did it address questions of how cases of “causal over-determination”are to be accommodated under the statutory provision, although the majorityseem to have subtly suggested that the authors of the Ipp Report (upon whoserecommendations the present statutory causation formulation is based) may havemisunderstood the House of Lords decision in Bonnington Castings Ltd v Wardlaw.

Apart from an interesting discussion by Heydon J (unaffected by the factthat his Honour dissented in the result) about the different meanings of theexpression “evidential burden” (at [50]-[64]) there is really nothing ofinterest at all in the judgment.

Further High Court judgments to be delivered this week

2012-03-05T14:17:00.000+11:00

The High Court has nowlisted a further case for delivery of judgment this week, so the (now) threejudgments to be delivered are as follows:

OnWednesday, 7 March 2012 at 10:15am is the decision in Strong v Woolworths Ltd. Thisis either an important case about the law of causation in negligence casesfollowing the enactment of the Civil Liability Act 2002, or amundane fizzer about what inferences can be drawn as to whether or not anadequate cleaning system would have prevented the plaintiff’s crutches fromslipping on a potato chip on the floor of a shopping centre.

OnThursday, 8 March 2012 at 10am is the decision in ALH Group Property HoldingsPty Limited v Chief Commissioner of State Revenue. Thiscase was only heard a few weeks ago, and addresses issues relating to theoperation of the NSW Duties Act 1997, and whether or not a Deed ofConsent an Assignment constituted an assignment of the benefit of a contractfor the sale of land, or a novation of that contract.

On Thursday at 2:15pm is the decision in Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v. Haxton,in which the consequences of a failure to comply with the prescribedinvestment scheme requirements of the old Companies Code. All you crazyrestitution enthusiasts may be in for a little treat.

New identification requirements for affidavits and statutory declarations

2012-03-05T14:05:00.001+11:00

The Identification Legislation Amendment Act 2011 (NSW) amends the Oaths Act 1900 (NSW) to require awitness to identify a deponent prior to witnessing an affidavit, and to certifyon the affidavit that this has occurred. These requirements commence on 30April 2012. In this post, references tosections are to the Oaths Act 1900 asamended (NB the form of the legislation on the NSW Legislation website does notincorporate the amendments), and references to regulations are to the Oaths Regulation 2011. Although couched in terms of affidavits, the same requirements apply in relation to statutory declarations.

A witness must either “know” theperson who makes an affidavit or confirm their identity by sighting anidentification document before witnessing the affidavit: section 34(1)(b). Aperson is deemed not to be known to a witness unless the witness has “known”the deponent for a period of at least 12 months: regulation 5.

The words “know” and “known” arenot defined in the legislation. However,analogous caselaw indicates that the degree of familiarity to satisfy the testfor knowledge need only be slight and need not be based on a pre-existingpersonal acquaintance with the deponent (see, for example, Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497 and Grgic v ANZ Banking Group (1994) 33NSWLR 202). Regardless, a prudentapproach would be for a witness to require identification if there is any doubtas to whether they have “known” the deponent for a period of at least 12months.

If an identification document isrequired, it must be one prescribed by the regulations: section 34(1)(b). The following are acceptable forms of identificationdocuments (what follows is a combination of the provisions of the Oaths Regulation 2011, and incorporatedprovisions of the Real PropertyRegulation 2008):

Australian passports: an Australianpassport that is either current or has been expired for less than 2 years.

Non-Australian passports: a currentpassport issued by a foreign government or the UN for the purposes ofinternational travel that contains a photograph and the signature of the personin whose name the document is issued.

Driver’s licences: a current licence orpermit issued under a law of a State or Territory or equivalent authority of aforeign country for the purpose of driving a vehicle that contains a photographof the person in whose name the licence or permit is issued.

Entitlement cards: current Medicarecards, pensioner concession cards, Department of Veterans’ Affairs entitlementcards or other entitlement cards issued by the Commonwealth or a StateGovernment.

Photo cards or national identity cards as follows:

a Photo Cardissued under the Photo Card Act 2005(NSW);

a card issuedunder a law of the Commonwealth or another State or Territory for the purposeof proving the person’s age which contains a photograph of the person in whosename the card is issued; or

a nationalidentity card issued for the purpose of identification that is issued by a foreign government, the United Nations or an agency of the United Nations and contains a photograph and the signature of the person in whose name the document is issued.
Birth certificates andcitizenship certificates as follows:

a birth certificate or birthextract issued by a State or Territory;
a birth certificate issued by a foreign government, theUnited Nations or an agency of the United Nations;
a citizenship certificate issued by the Commonwealth or by a foreigngovernment.

Credit card or account passbook from a bank, building society or credit union(or a credit card or statement of account less than 1 year old).

Electoral enrolment card that is less than 2 years old.

Student identity card, or a certificate or statement of enrolment, from an educational institutionthat is less than 2 years old.

Except in thecase of a Driver’s Licence, a document in a language other than English, mustbe accompanied by a document purporting to contain an English translation ofthe document.

In every case the identificationdocument sighted must be the original document or a certified copy (which mayonly be certified by someone authorised to take and receive statutorydeclarations, and may not be the authorised witness), and must not have beencancelled or expired (other than an Australia Passport which may be up to 2years past expiry).

Where verification of identity isrequired this must be done beforethe affidavit is witnessed: regulation 6(1).

You must see the face of thedeponent making the affidavit: section 34(1)(a). In this context “face” is defined to be thedeponent’s face from the top of the forehead to the bottom of the chin andbetween (but not including) the ears (section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002).

If the deponent has a “facecovering” (which means “an item of clothing, helmet, mask or any other thingthat is worn by a person and prevents the person’s face from being seen(whether wholly or partly)”) you may ask them to remove it. Curiously, although you must not take andreceive an affidavit if they do not remove a face covering, the failure tocomply with the section does not affect the validity of the affidavit: section34(4).

A witness is exempted from therequirement to see the person’s face if and only if the witness is satisfiedthat the deponent has a legitimate medical reason for not removing the facecovering (this is the effect of the combination of regulations 3 and 4, andsection 19B of the Law Enforcement(Powers and Responsibilities) Act 2002).

The affidavit must include acertificate that certifies the following:

that the authorised witness eithersaw the face of the person, or didnot see the face of the person because of a face covering, but is satisfiedthat the person had a special justification for not removing the covering;
that the authorised witness eitherknows the person, or does notknow the person, but has confirmed the person’s identity based on anidentification document presented to the authorised witness;
if the authorised witness has relied on an identification document toconfirm the identity of the person—that the document that the authorisedwitness relied on is the document that is specified by the authorised witnessin the certificate.

Finally, a big shout-out for the brains behind highheelsdaily.com for his assistance in the preparation of this post (follow on Twitter @highheelsdaily).

Next week in the High Court of Australia

2012-03-02T14:21:00.005+11:00

Next week the High Court willdeliver judgments in two cases in which it is currently reserved.

The first, to be delivered onWednesday, 7 March 2012 is the decision in Strong v Woolworths Ltd. This is either an important case about the lawof causation in negligence cases following the enactment of the CivilLiability Act 2002, or a mundane fizzer about what inferences can be drawnas to whether or not an adequate cleaning system would have prevented theplaintiff’s crutches from slipping on a potato chip on the floor of a shoppingcentre.

The second, to be delivered on Thursday, 8 March 2012 is the decision inALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue. This case was only heard a few weeks ago, and addresses issues relatingto the operation of the NSW Duties Act 1997, and whether or not a Deedof Consent an Assignment constituted an assignment of the benefit of a contractfor the sale of land, or a novation of that contract.

Argument next week commences on Monday, 5 March 2012 with the furthersubmissions in HarbourRadio Pty Ltd v Trad, which was adjourned after the original estimateproved to be insufficient.

On Tuesday and Wednesday, 6 and 7 March 2012 the Court will hearargument in a series of related cases that will either be reported as National CompetitionCouncil v Hamersley Iron Pty Ltd or as Pilbara InfrastructurePty Ltd v Australian Competition Tribunal. This case involvesPart IIIA of the Competition and Consumer Act 2010. Part IIIAprovides a regime whereby certain pieces of privately-owned infrastructure thatcannot be economically duplicated can be “declared”, with the consequence thatthey must be made available for use by competitors. Upon an application byFortescue Metals Group, privately-owned railway facilities in the Pilbara usedby Hamersley Iron and Robe River Mining to transport iron ore were declared fora period of 20 years. At issue in this appeal is which of two different methods(the “social cost approach” or the “private profitability approach”) should beused in determining whether or not “it would be uneconomical for anyone todevelop another facility”.

Finally, on Thursday 8 March 2012, R v Getachewraises for consideration the burden of proof in relation to the mental elementfor the offence of rape where the complainant was asleep at the time ofpenetration, and the evidence is silent as to whether or not the accused knewthe complainant was asleep, ought to have known the complainant was asleep, orthought the complainant was awake.

Reflections on Wotton v Queensland

2012-02-29T17:46:00.001+11:00

Earlier today I posted a summary of the High Court’sdecision in Wotton v Queensland inwhich the High Court upheld provisions of the Queensland Corrective Services Act that made it an offence to obtain aninterview from a prisoner without the written approval of the chief executiveofficer of the Department of Corrective Services, and authorised the impositionof conditions upon a parolee, which conditions in the case of Mr Wotton alsorestricted his ability to speak to the media about matters which, it wasaccepted, related to political and governmental affairs.

Co-incidentally, today ajournalist was charged with contravening a similar provision in the NTfollowing an interview with Bradley Murdoch (convicted of murdering PeterFalconio) conducted without the necessary approval.

Through the course of the dayfollowing further reflection and discussions with various people about thecase, and reports of the case in the media, it is apparent there are a numberof unfortunate aspects about the case.

To begin with, there is somethingunsatisfactory about the way the case reached the High Court. The adoption of the Special Case procedureenabled the High Court to rule on the constitutionality of the legislativeprovisions, and leave to one side whether the powers being exercised couldproperly be exercised consistently with the constitutional freedom ofcommunication. This arose in twoways.

Firstly, in respect of theinterview offence, the Court was able to say that that provision was validbecause it was always open to obtain the written approval of the chiefexecutive officer. For the purposes ofthe Special Case, no such application for approval had been made and refused,and the High Court was therefore not required to rule on whether any suchrefusal would itself have amounted to an impermissible burden on Mr Wotton’sfreedom of political communication. Thisis an issue that would be addressed separately, by way of judicial review ofthe chief executive officer’s decision, if such an application were made andrefused.

Secondly, in respect of the paroleconditions imposed, the challenge was to the validity of the legislation whichauthorised the imposition of parole conditions, and not to the paroleconditions themselves. Again, the HighCourt considered that this gave rise to a question of constitutionality of theprovision, and not whether the conditions themselves impermissibly burdened thefreedom of political communication. Again, this is an issue that would arise inthe context of a challenge to the validity of the parole orders onadministrative law grounds, not on constitutional grounds.

Another unsatisfactory aspect ofthe decision appears in the judgment of Kiefel J, who goes some way towardsproviding a justification for refusing to permit interviews and imposingconditions upon the parole restricting access to the media. Her Honour notes that there might be some utility in terms ofmaintaining discipline in preventing prisoners becoming figureheads in theprison population as a result of their media profile. An illustration of this is provided in the USSupreme Court case of Pellv Procunier. However,this teaser aside, there is no discussion of the extent to which suchconditions could appropriately serve a legitimate end in respect of parolees. Nor is there any discussion of what factorsmight legitimately be called in aid by the State of Queensland to justify theparticular conditions imposed upon Mr Wotton.

Apart from what can be gleaned from Kiefel J’sjudgment, there is nothing in the judgment that provides any guidance as to whetheror not the particular conditions imposed upon Mr Wotton do or do notimpermissibly burden his freedom of political communication, and if so (or ifnot) why?

Wotton v Queensland

2012-02-29T11:37:00.000+11:00

The High Court this morning delivered judgment in Wotton v Queensland in which a prisoner sought to challenge certain conditions imposed upon him as a parolee, as being impermissible burdens on his freedom of political communication.

Mr Wotton is an Aboriginal person,born on Palm Island, and who has been an active participant in public life inPalm Island and a leader in the Palm Island Aboriginal community. He has been, and wishes to continue to be, anactive participant in public discussion on political and social issuesaffecting Aboriginal persons on Palm Island, and more generally throughoutAustralia. He also wishes to participatein public discussion on issues relating to the prison system (about which hebecame aware during his incarceration).

In November 2008 Mr Wotton wassentenced to six years’ imprisonment for his part in the Palm Island Riots on26 November 2004, which followed the controversial death of Mulrunji whilst in police custody the weekbefore. He was eligible for, andreleased on, parole in July 2010. TheParole Board released Mr Wotton pursuant to an order made under section 200(2)of the Corrective Services Act 2006. The parole order imposed a number ofconditions on Mr Wotton, including that he:

Not attend public meetings on Palm Island without the priorapproval of the corrective services officer;
Be prohibited from speaking to and having any interactionwhatsoever with the media;
Receive no direct or indirect payment or benefit to him, orthrough any members of his family, through any agent, through any spokespersonor through any person or entity negotiation or dealing on his behalf with themedia.

The parole order imposed on MrWotton is due to expire on 18 July 2014.

By way of Special Case in the HighCourt of Australia, Mr Wotton seeks declarations to the effect that therelevant provisions of the CorrectiveServices Act 2006 (Qld) are invalid because they impermissibly burden, orauthorise the imposition of parole orders that so burden, Mr Wotton’s freedomof communication about government and political matters contrary to theCommonwealth Constitution. Thechallenged provisions included section 132(1)(a) which made it an offence incertain circumstances for a person to interview, or obtain a written orrecorded statement from, a prisoner without the written approval of the chiefexecutive of the Dept of Corrective Services. Prisoner was defined to include a parolee such as Mr Wotton.

In its judgment delivered on 29February 2012, the High Court of Australia unanimously dismissed thechallenge.

The majority (French CJ, Gummow,Hayne, Crennan and Bell JJ, and Keifel J in separate reasons) held that thechallenged sections of the CorrectiveServices Act 2006 effectively burden freedom of communication aboutgovernment or political matters (a matter conceded by the Commonwealthintervening, but denied by the State of Queensland). The relevant burden imposed by section 132(1)(a) is the obligation toseek and obtain the written approval under section 132(1)(d) of the chiefexecutive to interview a parolee, such as Mr Wotton. The relevant burdenimposed by section 200(2) is the observance of conditions the Parole Boardreasonably considers necessary to ensure good conduct of the parolee and tostop the parolee committing an offence.

Nonetheless, the majority held, the sections were reasonablyappropriate and adapted to serve a legitimate end in a manner compatible withthe maintenance of the constitutionally prescribed system of government. The legitimate end of section 132 (1)(a) was tobe found in the statutory purposes set out in section 3(1) of the Act, whichexpresses the need to consider community protection and crime preventionthrough humane containment, supervision and rehabilitation of offenders. It is not apparent from the pluralityjudgment how that end is in any way furthered by the restriction imposed bysection 132(1)(a). Keifel J howeverexplains it by reference to the need to maintain order and discipline withinthe prison, something that may be compromised by public statements made by parolees upon release,which may have repercussions for other prisoners and the prison system. Her Honour notes that in Pell v Procunierpress attention to a small number of prisoners had resulted in them becoming “publicfigures” within the prison society, gaining a degree of notoriety and influencewith other prisoners and becoming the source of severe disciplinary problems.

Importantly, the Court noted that it would be incumbent upon the chiefexecutive in exercising the power of approval under section 132(2)(d) to haveregard to the restraint upon legislative power identified by Brennan J in Miller v TCN Channel Nine Pty Ltd in the following terms: “where a discretion, though granted in general terms, can lawfully beexercised only if certain limits are observed, the grant of the discretionarypower is construed as confining the exercise of the discretion within thoselimits.” There had not been anapplication under section 132(2)(d) in respect of Mr Wotton. If there were such an application made, thenthe majority seems to e suggest that in determining that application thediscretion will be limited so as not to impermissibly burden Mr Wotton’sfreedom of political communication.

The legitimate end of section200(2) was the imposition of conditions the Parole Board considers reasonablynecessary to ensure good conduct to stop the parolee committing anoffence. The question of the validity ofthe parole orders therefore depended not upon the validity of section 200(2)itself, but on whether or not in imposing them the Parole Board had exceededthe power conferred by section 200(2). That was not a question that arose in the proceedings. The majority noted that if, on its proper construction, the statutecomplies with the constitutional limitation, any complaint respecting theexercise of power in any given case does not raise a constitutional question, butinstead raises a question of the exercise of statutory power, which is capableof being challenged in separate judicial review proceedings.

Heydon J held that the provisions (andthe parole order made under section 200) did not threaten his freedom ofcommunication about political or governmental affairs: a limitation on the place at which a communication may be made doesnot prevent the substance of what he wants to communicate from beingcommunicated. Similarly, a ban onpayment for making communications about political or governmental matters doesnot prevent the making of unpaid communications about those matters. And in relation to section 132, it does notburden communication because it prohibits only the obtaining by a third party,and not the publishing, of astatement by the prisoner.

Forthcoming judgments from the High Court

2012-02-27T18:27:00.001+11:00

On Wednesday the High Court will deliver four judgments.

The first is in Wotton v State of Queensland in which a prisoner challenges provisions of the Qld Corrective Services Act and a parole order made under that Act as impermissible burdens on his freedom of communication on government and political matters. The order purported to prevent him from attending public meetings on Palm Is without approval, and from speaking to the media.

The second is in a rather technical case involving construction of provisions governing the power of appointment of teachers under the South Australian Education Act 1972.

The third is also a rather technical case arising out of a demarcation dispute between industrial organisations in the education sector, and the operation of the registration scheme under the Fair Work Act.

The fourth is the judgment in Waller v Hargraves Secured Investments Ltd which raises an important issue under the NSW Farm Debt Mediation Act as to whether an agreement to extinguish a farm debt and create a new farm debt (where the new farm debt is secured by the original security) creates a separate "farm mortgage" with the effect that before possession proceedings can be taken under the new farm debt the mediation procedures must be invoked a second time.

In the High Court commencing 28 February 2012

2012-02-27T12:51:00.001+11:00

The High Court has now releaseddetails of what case, are going to heard (and when) over the next two weeks andso I have set out below an updated version of last week’s post, and included acase that I omitted.

First up on Tuesday, 28 February2012 is the appeal in Baker v The Queen. In this case theappellant invites the High Court to create an exception to the rule againsthearsay of the kind considered in, but not determined by, Bannon v The Queen. The issue is this: in a joint trial where theCrown relies upon admissions made by an accused in proof of guilt of theaccused, and the admissions tend to exculpate a co-accused, should a trialjudge be required (or have a discretion) to direct that the evidence of theaccused’s admissions is also evidence in relation to the co-accused and shouldbe considered as evidence in exculpation of the co-accused?

On Wednesday and Thursday theCourt will hear argument in in Forrest v ASIC, anappeal against the Full Federal Court’s decision upholding an application byASIC for civil penalties to be imposed on Twiggy Forrest and Fortescue Metals. The proceedings related to alleged misrepresentations about to contractsentered into with a number of Chinese companies for the construction of certainrailway infrastructure for Fortescue Metal’s Pilbara iron ore project. Atfirst instance ASIC’s application was dismissed in one of its many spectacularfailures in the courts in recent years. At issue will be the extent towhich, and the circumstances in which, a statement of opinion (and inparticular an opinion as to the effect of a contract) will be held to bemisleading.

Then, on Friday, 2 March 2012 theappeal in R v Khazaalis listed for hearing. This is, unusually, a Crown appeal against adecision by the NSW Court of Criminal Appeal upholding an appeal againstconviction but ordering a retrial. The accused had been convicted ofterrorism-related charges arising out of his publication of an electronic bookentitled “Provisions on the Rules of Jihad – Short Judicial Rulings andOrganisational Instructions for Fighters and Mujahedeen againstInfidels.” The relevant provision of the Criminal Code (section 101.5)makes it an offence to make a document if the document is connected withpreparation for, or assistance in, a terrorist act, and the person is aware ofthat connection. However, it is not an offence if the making of thedocument was not intended to facilitate preparation for, or assistance in, aterrorist act. At issue in the appeal is where the onus lies in provingor disproving that intention.

The following week commencing onMonday, 5 March 2012 is the further argument in Harbour Radio Pty Ltd v Tradwhich was adjourned after the original estimate proved to be insufficient.

On Tuesday and Wednesday, 6 and 7 March 2012 the Courtwill hear argument in a series of related cases that will either be reported asNationalCompetition Council v Hamersley Iron Pty Ltd or as Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal. This case involves Part IIIA of the Competition and Consumer Act 2010. Part IIIA provides a regime whereby certain pieces of privately-ownedinfrastructure that cannot be economically duplicated can be “declared”, withthe consequence that they must be made available for use by competitors. Uponan application by Fortescue Metals Group, privately-owned railway facilities inthe Pilbara used by Hamersley Iron and Robe River Mining to transport iron orewere declared for a period of 20 years. At issue in this appeal is whichof two different methods (the “social cost approach” or the “privateprofitability approach”) should be used in determining whether or not “it wouldbe uneconomical for anyone to develop another facility”.

Finally, on Thursday 8 March 2012,R v Getachewraises for consideration the burden of proof in relation to the mental elementfor the offence of rape where the complainant was asleep at the time ofpenetration, and the evidence is silent as to whether or not the accused knewthe complainant was asleep, ought to have known the complainant was asleep, orthought the complainant was awake.

Breath testing to ensure compliance with bail

2012-02-14T15:05:00.000+11:00

It is not uncommon,particularly in the western districts of NSW, for bail to be conditioned uponthe accused refraining from consuming alcohol, and requiring an accused tosubmit to breath testing as required by a police officer.

In the recentdecision of Garling J in Lawson v Dunlevy [2012] NSWSC 48 it washeld that the second part of the condition, requiring submission tobreath-testing, was invalid.

The essence of thedecision is that the imposition of the breath test condition did not satisfyany of the purposes for which a bail condition could be imposed, namely: promoting effective law enforcement; the protection and welfare of aparticular person or the community; or promoting the treatment orrehabilitation of the accused.

It was not suggestedthat the condition could be imposed for the purpose of promoting the treatmentor rehabilitation of the accused (although there is no reason why in an appropriatecase that could not be a relevant purpose). It is also difficult to see(as Garling J found) how that condition could have the purpose of protectionand welfare.

However, with greatrespect to Garling J, the reasoning by which his Honour found it did not havethe purpose of promoting law enforcement is unconvincing. This reasoningis in essence based upon the proposition that breaching a bail condition (suchas the one prohibiting the consumption of alcohol) is not an offence but simplyrenders the accused liable to be apprehended and brought back before the courtsfor redetermination of bail (either by confirming the existing bail, imposingnew bails conditions, or dispensing with bail altogether).

While thatproposition is undoubtedly correct (leaving aside the offence created forultimately failing to appear), it takes too narrow a view of "lawenforcement", and suggests that "law enforcement" is directedonly towards the prevention and detection of criminal offences. It isdifficult to see why promoting the observance of bail conditions (andfacilitating the detection of their breach) is not also a species of lawenforcement. That the legislature has decided that the consequence ofbreach shall be the redetermination of bail, rather than creating an offencethat may be punished in the ordinary way, would seem to be beside the point.

The current review ofthe Bail Act 1978 can be expected to result in legislative changesthat will reverse the effect of this decision.

Grants of Special Leave to Appeal in the High Court

2012-02-11T10:45:00.002+11:00

On Friday, 10 February 2012 theHigh Court heard applications for special leave in Sydney and in Canberra (viavideo-ink with Brisbane. There were fourcases granted special leave in Sydney, and one in Brisbane.

The grant in Brisbane arises in anappeal from the Queensland Court of Appeal in R v Patel [2011] QCA 81 in which the notorious surgeon Dr Jayant Patel lost an appeal againstconviction, and the Attorney General lost an appeal on sentence, relating tothe death of three patients, and the grievous bodily harm of a fourth,following surgery performed by Dr Patel in 2003 and 2004. The information currently available on thewebsite does not enable a determination of what issues are covered by the grantof special leave, but the appeal to the Queensland Court of Appeal raised thevery interesting question of whether a surgeon could be guilty of manslaughterby criminal negligence where only where there is negligence in the performanceof a surgical procedure, or whether it also applies where the surgery isperformed competently but the decision to operate or recommend to a patient wasnegligent.

The first grant in Sydney is from the decision of the Full Court of theFederal Court in Kutlu v Director ofProfessional Services Review [2011] FCAFC 94 in which it was held that thefailure of the Health Minister to consult with the Australian MedicalAssociation prior to the appointment of medical practitioners as members ordirectors of the Professional Services Review Panel (as required by statute)had the effect that those appointments were invalid, and any findings made bysuch a panel were invalid and of no effect and were not saved by the de factoofficers doctrine at common law.

The second grant in Sydney is from the decision of the NSW Court ofAppeal in Weinstock v Beck [2011] NSWCA 228 which raises a short but difficult question of statutoryconstruction, as to whether there can be a “redeemable preference share” ifthere are no issued shares over which they take preference. The case will make the difference between $8and several million dollars to an estate administered by the Public Trustee. It also emphasizes the care required whenestablishing a corporate structure for the purposes of avoiding taxes andduties!

The third grant in Sydney is from the decision of the Full Court of theFederal Court in Qantas Airways Ltd v Cmrof Taxation [2011] FCAFC 113 which asks the question what is the taxable supply, if any, where apassenger has paid the fare for a flight but cancels the reservation or doesnot present for carriage and no refund is available or claimed: is it thereservation or the failed flight?

The fourth grant in Sydney is from thedecision of the NSW Court of Criminal Appeal in Burns v R [2011] NSWCCA 56, which upheld the appellant’s convictionon a charge of manslaughter in circumstances where she and her husband had either(or both) supplied methadone by injection to the deceased (manslaughter byunlawful and dangerous act) and had owed a duty of care to the deceased butfailed to render assistance to the deceased when he became ill as a result ofthe effect of the methadone (manslaughter by criminal negligence).

Double jeopardy is not a relevant sentencing principle for federal offences

2012-02-09T13:01:00.000+11:00

Today the High Court handed down its decision in the appeal in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1

In that case the appellant agreed to carry drugs into Australia from Vietnam at the suggestion of a person named Ho, from whom she had borrowed money. She was apprehended at Melbourne airport on 11 February 2009 and taken to a hospital where a CT scan identified four foreign objects concealed within her body. They turned out to be pellets containing 197.3g of pure heroin. After the discovery of the drugs the appellant co-operated with the police, giving a detailed account of her involvement, making a statement naming the person who provided her with two of the pellets, and providing information as to the coded language used by that person and Ho. An undertaking by the appellant to co-operate with law enforcement agencies in future proceedings was tendered at the hearing on sentence after the appellant's plea of guilty to one count of the importation of a marketable quantity of a border controlled drug, namely heroin, contrary to section 307.2(1) of the Criminal Code (Cth).

On 30 April 2010, the sentencing judge in the County Court of Victoria decided not to impose an immediate term of imprisonment upon the appellant, for reasons that included: the assistance the appellant had given to the authorities and her undertaking to assist the authorities in the future; the danger that attended that course of action; and the risk that hardship would be caused to the appellant's infant twins, who were born prematurely in December 2009. Her Honour sentenced the appellant to three years' imprisonment but ordered that she be released forthwith upon giving security by recognisance of $5,000 to comply with a condition that she be of good behaviour for three years.

The Commonwealth DPP appealed against the sentence imposed on the ground that it was manifestly inadequate. The Court of Appeal of the Supreme Court of Victoria identified a number of errors in the sentencing judge's approach, and re-sentenced the appellant to four years' imprisonment and fixed a non-parole period of two years.

The Court of Appeal had regard to sections 289 and 290 of the Victorian Criminal Procedure Act 2009 which provide that in considering whether or not an appeal should be allowed to that Court, and if so in re-determining sentence, the Court of Appeal “must not take into account any element of double jeopardy involved in the respondent being sentenced again.” It was accepted that those provisions could not apply of their own force to the imposition of a sentence for a federal offence. However, they were said by the Court of Appeal to apply as provisions picked-up by virtue of section 80 of the Judiciary Act 1903 which provides for the application, by courts exercising federal jurisdiction, of the common law of Australia as modified "by the statute law in force in the State ... in which the Court in which the jurisdiction is exercised is held".

The appellant contended that the Court of Appeal was in error in having regard to sections 289 and 290, which in effect prohibited it from having regard to the “principle” of “double jeopardy”. That principle was said to have required the Court of Appeal to take account of the presumed distress and anxiety of the appellant occasioned by having to stand for sentence again. The appellant submitted that double jeopardy was a principle of judge-made law which informed the content that is to be given to several elements of the statutory provisions governing the sentencing of federal offenders set out in section 16A. These included the requirement that the sentence be of "a severity appropriate in all the circumstances of the offence”, that the Court take into account “any other matters” and that the "mental condition" of the appellant, which was also required to be taken into account, was broad enough to refer to the anxiety and distress to which it may be presumed that person will suffer on re-sentencing.

The High Court held that while section 16A accommodated some common law principles of sentencing, such as those relating to general deterrence, proportionality and totality, it did not accommodate the so-called “principle” relied upon by the appellant. The application of an automatic discount on account of double jeopardy would be inconsistent with the requirement of section 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. Moreover, the requirements of section 16A are to be applied by all courts exercising federal jurisdiction upon sentencing, whether by a sentencing court at first instance or by a court on appeal. Section 16A could not be interpreted as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.

Section 16A(2)(m), which required consideration of the “mental condition” of the appellant did not assist the appellant. Contrary to what was held in Director of Public Prosecutions (Cth) v De La Rosa by the NSW Court of Appeal, that section required actual proof of anxiety and distress, and the presumed anxiety and distress accommodated by the notion of double jeopardy was not sufficient (and in any event, in the appellant’s case there was actual evidence of anxiety and distress that was independently taken into account in re-sentencing).

Finally, the fact that presumed anxiety and distress on re-sentencing is not one of the matters to which the Court is to have regard under section 16A does not mean that there is a gap or omission in the Commonwealth sentencing regime such as to bring section 80 into play. Re-sentencing is able to occur according to the terms of section 16A without reference to that presumed state of affairs.

Accordingly, the appeal was dismissed.

A review of ProView from Thomson Reuters - a clear winner

2012-02-08T22:51:00.001+11:00

Today I had an opportunity to get my hands on an iPad with Thomson Reuters' proprietary eBook reader called ProView. After my disappointment with LexisNexis and its BlueFire Reader (see my review here), I was keen to see what the competition was doing.

What is the reading experience like? In contrast to LexisNexis’ publications, through the control panel in ProView you can choose to either have the pages match the printed book, or you can set it so that the text reflows to eliminate scrolling. Which mode is better will depend upon personal preference (including how large you want the font to be) and whether your iPad is in landscape or portrait mode, but the flexibility of being able to read it as if it were a printed book, or not, has obvious advantages over the LexisNexis product.

Navigation is relatively easy with a dedicated button that brings up the Table of Contents (as with LexisNexis). The demonstration used one of Thomson’s annotations of the Corporations Act, and while the Table of Contents divided the text into the different Parts of the Act, only some of the Parts unfolded further to reveal a more detailed Table of Contents for that Part. For legislation of the size of the Corporations Act this is a major deficiency in navigating the text. It is possible to go to a particular section through the Act’s Table of Provisions (which is hyperlinked) but as that ranges over 50-odd pages itself, it is not a substitute for a properly-nested Table of Contents.

There is also the ability to go to a particular page. In ProView the “page” is the same pagination as in the printed copy (including the use of Roman numerals for introductory parts), and is selected by entering the page number you wish to skip to. This is in contrast to LexisNexis where there is no obvious correlation between the “page” of the Book and the printed book, and page selection is by use of a slider.

The search functionality in ProView has two very distinct advantages over LexisNexis. Firstly, it allows for complex searches using Boolean operators (although the text does not seem to be usefully divided into particular sections for the purposes of allowing AND searching to be useful, it does allow for proximity searching which achieves a similar end). LexisNexis only allows single word or phrase searching. Secondly, it brings up a list of search results by displaying how many times the search terms appear in the various chapters of the book. This allows you to skip ahead to the search results in a particular chapter. An update to ProView due at the end of February will allow you to display the results with a line of text providing context.

“Footnotes” can be viewed by tapping on the footnote number, which then brings up an inline pop-up box. The advantage of this is that you can read the footnote text and the context at the same time, rather than skipping through to the endnotes (which is the LexisNexis method). Unlike LexisNexis, however, the notes don’t otherwise appear in the text: the only way to view them is via the pop-up box. The box is currently a fixed size, so that longer footnotes need to be scrolled through.

Bookmarks and annotations operate differently in ProView to LexisNexis. In LexisNexis, the only way to create an annotation is to add it to a bookmark (which you can do either by selecting text and adding a bookmark to that text, or simply by bookmarking the “page”). Unless you create a text-selected bookmark (which then highlights the text in yellow) the reader does not indicate that the page is bookmarked. The only way to read the annotation is to exit the text and go into the bookmarks (which are then listed either by date or page number, so you need to remember what page you were on in order to locate your notes).

In ProView, things work very differently. Firstly, bookmarks and annotations are separate functions. The bookmark is literally a bookmark, providing nothing more than a cross-reference to the page. Notes are created separately. Highlighted text to which the annotation is attached becomes yellow, and little marginal box appears to indicate the note is attached. Tap on the note, and your annotation appears in a pop-up box, without taking you away from the text.

Now, this is where ProView gets funky. When you buy an eBook you can view it on both an iPad and in a web-browser on your desktop. You can create annotations on either the desktop or the iPad, and ProView will synchronise them between devices. Annotations can be created offline, and will then upload and synch when next connected to the internet.

Not funky enough? How about this. Your annotations will transfer across to corresponding text of updated editions of the same text. If there is no corresponding text, you don’t lose the annotations: they continue to be available as “Displaced Annotations”.

There remain some limitations with ProView. A big one is the unfolding Table of Contents referred to above, although Thomson Reuters are aware of the issue and are considering ways in which to facilitate easier browsing navigation through the text. While you can copy and paste, you can’t at the moment print from the iPad. You can’t search through annotations, a functionality that will hopefully be introduced in future versions of ProView. There is no Back Button, so when you leap forward through the text you can’t leap back. However, the update to ProView due at the end of February will apparently provide a Navigation History that will allow you to do so. Sharing of annotations is also currently not available, but is something that Thomson Reuters have in development

At present there are only eight titles available: 6 collections of tax and corporations legislation, the Australian Tax Handbook and Miller’s Australian Competition & Consumer Law. The cost of the printed book or the eBook is the same. For an additional 30% you can have both as a bundle (and as a special offer, the Australian Tax Handbook can be purchased as a bundle without the 30% surcharge).

It is probably apparent that on the basis of my limited time with each, ProView is a vastly superior eBook reader to the BlueFire reader adopted by LexisNexis. This superiority is apparent in terms of usability, flexibility, and functionality. LexisNexis have a long way to go to catch up to ProView.

DISCLOSURE: Thomson Reuters is the publisher of a law text that I wrote 8 years ago, and which is the process of being updated for a second edition.

In the High Court: the law week commencing 7 February 2012

2012-02-03T11:09:00.000+11:00

The 2012 Law Term in the High Court got off to a slow and tedious start, with some pretty uninteresting cases for the average mum and dad. Predictably it began with Gummow J asking senior counsel, in a case involving cancellation of the registration of a union, where the registration provisions were to be found in the legislation and how the registration system worked. Equally predictably, senior counsel stumbled over the answer. We will learn….one day.

Anyway, things picked up towards the end of the week with a late afternoon-evening application by Australia’s richest woman, in effect, for an extension of a suppression regime preventing the disclosure of the details of her internecine family dispute pending an application for special leave to the High Court. The transcript and judgment can be found here: Rinehart v Welker [2012] HCATrans 7. And today sees the appeal in Harbour Radio Pty Ltd v Trad that I blogged about last week.

Next week looks a little more interesting.

First up on Tuesday, 7 February 2012 is an appeal from the Court of Appeal of the Supreme Court of Victoria in Baiada Poultry Pty Ltd v The Queen. This is another case arising out of the prosecution of an entity, held to be an “employer”, for breach of occupational health and safety standards. The grounds of appeal are narrow and technical, but more broadly the case may require an analysis of the extent to which a company can discharge its obligation to do what was reasonably practicable to provide and maintain a safe work site by relying on the expertise of its independent contractors (in this case, a haulage company which transported crates of chickens, and a labour-hire company that provided chicken catchers). More details are available here.

Then on Wednesday, 8 February 2011 there are several migration cases listed for hearing: Plaintiffs S10/2011, S49/2011 and S51/2011 and Kaur. Common to each of the cases is the question of whether or not (and if so, to what extent) the Department of Immigration and Citizenship is required to afford procedural fairness in inviting comment on internal DIAC advice to the Minister where applications have been made to the Minister to exercise certain non-compellable powers, either to allow a person refused a protection visa to make a further application (under s48B), to substitute a more favourable decision than a decision made by either the Migration Review Tribunal (under s351) or the Refugee Review Tribunal (under section 417). More importantly, the cases will test the boundaries of the High Court’s decision in Plaintiff M61/2010E which dealt a fatal blow to the government’s processing scheme for offshore asylum seekers. More details in relation to these cases are available here.

In the High Court - first appeal hearings for 2012

2012-01-25T18:05:00.000+11:00

Next week sees the commencement of the 2012 Law Term for the High Court of Australia.

Tuesday, 31 January 2012 kicks off with the Australian Education Union v General Manager Fair Work Australia. This is essentially a demarcation dispute between two unions, the Australian Principals Federation and the Australian Education Union, which raises an issue of statutory construction (whether section 26A of the Fair Work (Registered Organisations) Act 2009 operates to validate the registration of the APF in circumstances where the Full Federal Court had already determined that the registration was not valid) and an issue of constitutional law (whether, assuming section 26A had that effect, it was an invalid usurpation of or interference with the judicial power of the Commonwealth). Truly, one for the law nerds.

Wednesday, 1 February 2012 is a taxation case, with the hearing of Commissioner of Taxation of the Commonwealth of Australia v Bargwanna. The question in this case is whether, in determining an application by a charitable trust for endorsement as an income tax exempt entity, the fact that the application of some of the trust funds is for purposes other than public charitable purposes results in the trust not being entitled to tax exempt status. A related question is what are the factors to be considered in determining an entitlement to that status.

Thursday, 2 February 2012 sees the appeal in ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue, raising issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

Finally, on Friday 3 February 2012 an interesting appeal in Harbour Radio Pty Ltd v Trad. This defamation case arises out of a rally in Hyde Park following the Cronulla riots in December 2005. Keysar Trad addressed the rally in the course of which he made various allegations against Radio 2GB including of whipping up fears, that it was racist, that it was a predominant cause of the suffering of many of Australia’s Muslims, and that it ought to have sedition laws applied against it. This provoked a response by Jason Morrison on Radio 2GB the following day, in a broadcast that a jury found conveyed various defamatory imputations about Trad, including that he incited people to commit acts of violence and to have racist attitudes, he was a disgraceful and dangerous individual, was widely perceived as a pest, and deliberately gave out false information about the Islamic community. Radio 2GB then relied on various defences, including truth, contextual truth, the “response to attack” qualified privilege at common law, and comment. They relied upon comments publish by Trad in relation to homosexuality (including that it was analogous to cancer, that homosexuals were no more civilised than dogs and were sub-human, and that lesbianism was little different to shared masturbation), his endorsement of anti-Semitic websites, his defence of comments by Sheikh Hilali suggesting women were responsible for sexual violence by likening them to “uncovered meat”. It is the upholding of those defences by McLelland J (and their reversal by the Court of Appeal) that gives rise to the appeal.

Further details are available on the High Court’s website.

A review of eBooks from LexisNexis

2012-01-21T16:31:00.002+11:00

Shortly before Christmas I realised my long-lost copy of Cross on Evidence would not be returning to my chambers, and so I took advantage of the LexisNexis sale to order a new copy. I decided to get it bundled with an eBook so I could carry it with me to court on my iPad. For reasons I am yet to understand, I did the same with Pearce & Geddes Statutory Interpretation in Australia.

I have been underwhelmed by them.

It is not clear to me whether the problem lies with LexisNexis, with the Bluefire Reader software LexisNexis has chosen as its eBook software for the iPad, or both. But there are problems aplenty.

Let's start with Statutory Interpretation in Australia. This is the how the top of the title page appears.

This is how it appears in portrait mode.

If a publisher can't even format the title page properly, there is something seriously wrong.

Turning to more functional aspects of the book, I was expecting to be able to read it as if it were the hardcopy. At least, I wanted the ability to do so if should I so desire. But you can't. There is no way to paginate the eBook as it is paginated in the hardcopy. This is what it looks like.

Personally, I find the page markers visually distracting, but perhaps that's just me. I did try and force it to paginate in the same way as the hardcopy by reducing the font size. This is where I ran into the next problem. Using the Bluefire Reader settings to make the font size smaller did not change the font size at all. I tried again, and still the font size remained stubbornly the same. Only the "lorem ipsum" text in the settings dialogue box changed font. I persevered, until this happened:

The footnote marks are hyperlinked, and so tapping on the footnote number takes you to the text of the footnote (not instantly...there is a lag). The footnotes are in fact endnotes, and so the context is lost when you go to the text of the note. There is no "back" button, and returning to the main text is achieved by tapping on the footnote number.

The absence of a "back" button is not a difficulty with footnotes. But it is a massive headache for other parts of the book that are hyperlinked. For example, the table of cases at the front of the eBook has hyperlinks to take you to the passage of the book where the case is referred to. However, there is no way of getting back whence you came, other than by going back to the table of contents and starting again. Quite frankly, that is bonkers.

It becomes even more bonkers when you click on a hyperlink in one part of the text that then takes you to another part of the text. Unless you remember where you were in the book before you tapped the hyperlink, there is no way of getting back. None. At least none that I could see, and none referred to in the user guide.

The Bluefire Reader allows you to copy text, but pasting it seems to lose the formatting, an irritation if the text includes case names that are italicised.

It allows you to select text and create a bookmark. The selected text then appears yellow. Somewhat laboriously, you cannot tap the highlighted text to pull up the notes attached to the bookmark. You have to go out of the book to the list of bookmarks, then find the relevant bookmark to read the notes. The bookmarks cannot be tagged, and the notes are not searchable. This is a serious limitation on what ought to be a useful function.

Finally, one thing you can't do, despite the permissions on the eBook allowing you to, is print. You can't print from this book on the iPad, and instead have to copy and paste into another program and print from there.

Now to Cross on Evidence. This is what page one (and part of page two...this book has the same problem in not being able to read it as if it were the text) looked like.

Seriously, what is going on here? For some reason LexisNexis has decided to publish this text in a sans serif font. Yes, you can go into the settings and turn off the publisher's formatting and then set the font yourself. But why change the default font from that used in the hardcopy? At least in this eBook the settings function that allows for a change in font size worked

You may notice that the text itself has some serious issues. Firstly, can you see the word "inadmissibleat" and "ayear"? The absence of a space so words run into each other is not isolated. There were three examples in the first three paragraphs. It goes the other way as well, with "climacter ic" appearing instead of "climacteric".

Footnotes work in the same way. However, for some reason they are formatted in a way that increases the linespacing where they appear, creating a visual awkwardness that cannot assist in reading the text. I also noticed an issue with this book that I did not experience with the other, and that is frequently, tapping on the footnote number to return to the main text in fact resulted in the book turning to the preceding page. The footnote marks themselves were often more difficult to tap precisely enough for the hyperlink to activate.

Within the text and in the footnotes for some reason case names, legislation and latin phrases were mostly, although not always, not italicised.

The same issues in relation to hyperlinking within the text appear in Cross on Evidence as in Statutory Interpretation in Australia. But not all of the internal cross-references were hyperlinked: again, there appeared neither rhyme nor reason for why some were and some were not.

All in all, I was underwhelmed by the eBook implementation of both texts on the iPad, with serious flaws in the formatting of the text (presumably by LexisNexis) and serious limitations in the Bluefire Reader software. Sorry LexisNexis, but these are not worth the outrageous prices you're charging.

A different perspective on SOPA/PIPA

2012-01-19T11:56:00.001+11:00

I have not had the time to comprehensively demolish the more hysterical aspects of the criticism being levelled at SOPA/PIPA. I have read the proposed bills, and they are far from perfect. But they are far from warranting much of what has been said about them.

Without endorsement, and in the absence of an opportunity to write my own response to the critics of SOPA/PIPA, I simply offer this comment from Thomas Carpenter form the American Federation of TV & Radio Artists.

The misinformation about this bill is akin to "WMDs in Iraq." The more you repeat the lies, and the louder you shout, the more people start to believe them. The content industries employ millions of people, many of whom have good-paying middle-class union jobs, and it's one of the few industries where the US actually has a trade surplus. But law enforcement doesn't have the same tools available to stop the trafficking of stolen content abroad, that they have stateside. This legislation would fix that.  

An important provision of the Stop Online Piracy Act and PROTECT IP Act allows only the Department of Justice to go to federal court to obtain an order for a search engine to stop linking to a foreign criminal website. Then—and only if ordered by a judge—will search engines simply be required not to return search results that include links to a specified foreign rogue site.  

Removing foreign criminal websites from search results is crucial to preventing their access to the American market. Search engines serve as the portal to foreign criminal websites. Anyone looking for free movies or illegal prescription drugs can find them within seconds on search engines like Google. Even U.S. consumers seeking legitimate products or content are often unwittingly directed to criminal sites through the results provided by search engines, which was highlighted in a 2010 study by McAfee regarding the risks associated with visiting piracy sites. Requiring search engines not to direct users to these criminal websites will help protect consumers and preserve the marketplace for legitimate American companies, whose products and creative works today are often buried in search results below those for rogue sites.  

Companies opposed to the legislation that rely on search engines for much of their revenue, especially Google, have objected to the provisions requiring them not to direct users to foreign sites found to be illegal by a federal court. First, they argue that such requirements would be ineffective because users would find alternate ways to find rogue websites. But this argument cannot withstand scrutiny. In fact, a frequently noted conventional wisdom among many in the Internet community is that if a website is not listed on the first or second page of Google search results, it simply “does not exist.” Consumers use search engines to find products they want. If the foreign criminal websites, which often appear legitimate, are no longer listed, then consumers will be much more likely to visit safe, legitimate websites and purchase goods from law-abiding American companies. Of course, no single tactic is 100% effective and some dedicated users will still find their way to free stolen content. But, as with all crime, just because it cannot be completely eradicated does not mean we should abandon the fight.  

Second, companies opposed to the bills claim that court orders not to link to websites, even if they are engaged in wholesale illegal activity, constitute “censorship.” However, this ignores the fact that Google and other search engines already alter their search results every day, with no effect on free speech. In fact, Google boasts that through November 2011 they “have processed takedown notices for nearly 5 million items,” all without a court order in response to DMCA notices from copyright owners or requests from trademark holders. To argue that it would be “censorship” to engage in similar action for foreign websites, where there exists the additional safeguard of a federal judge determining whether the entire site is illegal and thus subject to an order, is without merit. Google makes more decisions about website and search blocking than any other company or country in the world, and free speech has not suffered from existing compliance with search result takedown notices.  

Congress needs to act now on these bills. The failure to pass meaningful legislation will result in overseas websites continuing to be a safe haven for criminals stealing and profiting from American creativity. As the Obama Administration stated on January 14, "Online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs."

When is a crime not a crime? When it's a breach of bail

2012-01-16T17:34:00.001+11:00

The Sunday Telegraph spectacularly announced yesterday that the “Crime rate on bail is soaring in NSW according to new data.”

Except, it is not.

The data being referred to is the data freely-available on the website of the NSW Bureau of Crime Statistics and Research (BOCSAR). What that data shows, in summary, is that the number of breach of bail conditions has increased from 26,278 in the 12 month period to September 2010 up to 31,002 in the 12 month period to September 2011.

There are numerous problems with the article, beginning with the headline. The statistics do not record an increase in the rate of crime committed by persons who are on bail. They record an increase in the number of breaches of bail conditions that have occurred. The first point to note is that breaching a bail condition is not a crime. The only relevant offence is failing to appear in accordance with a bail undertaking. Breaching a bail condition renders you liable to arrest, but only for the purposes of bringing you before the court for reconsideration of your bail status. And so an increase in the number of breach of bail conditions says nothing about an increase in crime.

Still less does it say anything about an increase in the crime rate…a change in the rate could only be determined by knowing how many people were on bail during the relevant periods being compared, a matter about which the article provides data for person subject to bail conditions at the time their matter was finalized, and then only for the 2010 year. It is far from clear that even that number is a relevant one for the purposes of determining an increase in the rate (the relevant number would seem to be the number of people subject to a bail condition at any time during the relevant 12 month period).

But I digress: the headline is hopelessly misleading.

The article is worse.

The first paragraph asserts that “Not even the threat of lengthy jail time is enough to deter them with the number of breaches soaring by almost 20 per cent in the past 24 months.” As noted above, breaching bail conditions is not a crime, and so there is no “lengthy jail [sic – read “gaol”] time” that poses a threat. At worst the existing bail could be revoked and further bail refused. Sensationalism is the only excuse for writing “almost 20%” instead of just saying “18%”. Somewhat ironically, the increase that was recorded is over a 12 month period, not a 24 month period as reported…surely that’s MUCH more spectacular. A course in statistics would pay handsomely for Sunday Telegraph journalists.

The second paragraph suffers from an odious failure to identify the so-called experts who proffered a view on the reason for the increase in breaches of bail conditions. If it is Don Weatherburn, subsequently referred to in the article, then why not say so. And if there are others (implied by the use of the plural) who are they and how are they qualified to comment? Is it the “spokesman for acting NSW Attorney-General Chris Hartcher” later referred to?

The third paragraph repeats the sins of the headline in even more egregious fashion, which makes it difficult to blame the sub-editor. It is simply lazy, ill-researched reporting. It is internally inconsistent, referring initially to a surge in “breach of bail offences”, but then to the number of “charges laid against offenders who committed further crimes while on bail.” It bears repeating that both these statements are wrong: there is no offence for breaching bail; and the statistics say nothing about the commission of “further crimes” while on bail.

The fourth paragraph repeats the sin of referring to “charges” for “breach of bail offences”.

The sixth paragraph asserts: “The offences committed on bail ranged from serious violent crimes to small breaches, including not reporting to police at a designated time or breaking a court ordered curfew.” This is curious, because the statistics available on the website don’t show that at all, and BOCSAR informs me that this data is provided by the NSW Police and from that data it is not possible “to characterise the nature of these breach of bail incidents nor whether they were committed in conjunction with a further offence.”

Then, at long last, we get an explanation of the increase from Don Weatherburn, crime statistics guru. What is interesting about this explanation for the increase in the statistic is that it is not related to an increase in criminality, or the wrong people being given bail…it is simply a result of changes to the application of the law by Courts which result in a larger number of people having conditions attached to their bail, and changes to the policing of bail conditions.

Who’d have thought!!!

A word about legal doublets

2011-12-29T19:26:00.000+11:00

A certain law firm has been undertaking a letterbox drop, exposing the supposed evils of the Succession Act and offering (no doubt for a fee) to assist you to prevent middle-aged drug-addict delinquent children getting their hands on an estate you'd rather leave to your cat. But I digress.

The Estate Defence Lawyers website contains the following endnote:

"A legal will is sometimes called a last will and testament or will and testament because the law sometimes uses the Norman and the English words together as a legacy of the Norman conquest of England. In fact will and testament are synonymous, like devise and bequeath, nook and cranny, cease and desist, hue and cry, goods and chattels and null and void."

This, and similar assertions, are often made particularly in the halls of schools of legal practice encouraging the use of so-called "Simple English".

However, let there be no mistake: whatever their etymology, the first and second word in each doublet ARE NOT SYNONYMOUS.

A will and a testament are historically different things. Historically, a will referred to a disposition of real property and a testament referred to a disposition of personal property. So "Last Will and Testament" was used to describe the instrument by which the whole of one's estate (consisting of both real and personal property) could be disposed of as a consequence of one's demise.

Going through the roll-call of supposedly synonymous legal doublets:

"hue" referred to the use of a horn whereas "cry" referred to shouting;
"devise" referred to the disposition of real property whereas "bequeath" referred to the disposition of personal property (and for completeness, neither included a gift of money, hence the traditional use of the triplet "give, devise and bequeath");
"nook" generally refers to a corner (or at least a small, partially enclosed area of a larger room) whereas "cranny" refers to a crack or similar crenellation (it is not clear that this is a legal doublet at all);
"cease" required someone to halt an activity, whereas "desist" required them to not take up the activity again at a later time;
"goods" refers to moveable property whereas "chattels" includes not only moveable property but also refers to intangible (and therefore immovable) property such as choses in action (particularly negotiable instruments and securities) and money which have never been considered "goods".

Another interesting aspect of the website is their promotion of libertarian thinkers such as Locke, Mill and Bentham in support of their campaign against the family provision sections in the Succession Act, and even call in aid one Elizabeth Tudor who, it is claimed, famously captured "the great principle of liberty" when she said: "I have no desire to make windows into the souls of men [sic]". What Elizabeth in fact meant when she said (by traditional attribution) "I have no desire to make windows into men's souls" was that she did not care what the citizenry in fact understood by the formularies of the Church of England, just that they assented to them. Hardly a "great principle of liberty" at all, but no doubt a sentiment that prevented the heads of many being liberated from their bodies for heresy.

Law for Food Bloggers

2011-11-07T11:41:00.003+11:00

As a result of Direct Messages I received via Twitter in the weeks preceding EatDrinkBlog2011 I have decided to speak about the legal aspects of three issues facing foodbloggers:

a food blogger's right to take photographs of dishes in a restaurant, and whether or not a food blogger is entitled to include in those photos images of people, such as other patrons or staff;
copyright in those photos;
copyright in recipes.

What follows is obviously a very brief summary of the legal position, hopefully shorn of technical language so that it may be understood by non-lawyers (and as a consequence not expressed in a way that intellectual property lawyers would necessarily accept as technically correct).

YOUR RIGHT TO TAKE PHOTOGRAPHS

Like many things in the law, there is a common sense answer and a strict legal answer, and they may not necessarily be the same, but there will usually be a fair bit of overlap between they two.

Let's start with the strict legal position.

In general terms in Australia, you are allowed to take photographs of whomever you like, or whatever you like, whenever you like. You do not generally need permission to do so, and in particular you do not need the permission of a person you wish to photograph. There is no general right to privacy that protects people from being photographed.

There are some obvious limitations to this.

There are now anti-voyeurism laws, or peeping-tom laws that prevent the taking of photos of a sexual or voyeuristic nature, usually of what are quaintly referred to as "private parts". And as Bill Henson notoriously discovered a few years ago, taking photographs of children, especially where they are sexualised, or at least arguably so, is always fraught with difficulty.

The most important limitation on a photographer's right to take photographs however comes not from laws relating to privacy or deviant behaviour, but from the law of property.

When you enter upon private property, whether it be a restaurant or cafe or a supermarket or shopping centre, you enter on the common law understanding that you comply with requirements the property owner imposes upon you. And in general, those requirements can be imposed upon you after you have entered, as a condition of thereafter remaining on the property.

The general proposition that you have a right to take photographs wherever you want to, is subject to the very important qualification for food bloggers that the owner of private land is perfectly entitled to ask you not to, and is perfectly entitled to ask you to leave if you continue to do so. And they are perfectly entitled to use such force as is reasonably necessary to force you to leave if you refuse to comply with the conditions they have imposed.

They are also perfectly entitled to limit what you photograph, or what you subsequently do with the photograph. So, they could ask you not to photograph patrons or staff. Or they could ask you not to put your photographs onto a blog, or sell them to a commercial photo bank. Of course, the enforcement of these conditions after you have left is another matter entirely, but they are entitled to impose the conditions and get your agreement to them as a condition of you remaining.

There is nothing to stop you from taking photos of the premises (and of the inside of the premises) from off the premises in a public place such as the footpath.

I should I finally mention that a common yet misconceived way people sometimes try and prevent you from taking a photograph is to say that doing so will breach someone's copyright. There is no copyright in a snow egg. And while there may be copyright in the snow egg recipe (as we will discover below), taking a photograph of the snow egg does not infringe the copyright in that recipe.

What about taking photographs of people?

As indicated earlier, there is no general right to privacy and so generally there is no need to ask someone's permission to take their photograph. That is of course subject to what has been said about a property owner's entitlement to restrict you from taking photos of patrons or staff as a condition of entry to, or remaining on, the property.

But, you may in limited circumstances be prevented from using photographs taken of people without their consent.

In practical terms this is generally going to apply only to famous people or people with a reputation worth protecting. And it is by a tortured legal path where the Courts can prevent the use of a person's image where the image is used in order to endorse a product or website. Examples of where this occurs are now legion in the food world with celebrity endorsements of particular foodstuffs (eg swimming’s association with Uncle Toby's) or celebrity food endorsements of supermarkets (eg Margaret Fulton and Woolworths).

But unless there is a commercial use of someone's image to endorse a product, and unless that person has some element of celebrity or notoriety about them, then it is extremely unlikely that there could be any restriction placed on the use of a photograph taken of them.

A more detailed discussion of photographer’s rights is available in the excellent web article entitled “NSW Photo Rights”

COPYRIGHT IN PHOTOGRAPHS

A photograph is, in the language of the Commonwealth Copyright Act, an "artistic work" and the photographer is therefore given certain exclusive rights in respect of that photograph.

The most important right is of course the right to copy and to publish and to use that photograph. And so, where you take a photograph and put it up on your blog to accompany a story, or include it as part of a photo gallery if you are a food photographer, you have the right to control how it is used.

There are also important moral rights that are attached to a photograph. So a photographer has the right to be attributed as the creator of the photographer, and can take action to prevent the image being distorted in a way prejudicial to your reputation.

In general it is an infringement of your copyright if someone else does any of the things that you have the exclusive right to do. So if they copy it (which would include scanning a hard copy and posting it, or downloading it an re-posting it) without your permission that would be an infringement. They don't have to copy the whole of the photograph. So long as they copy an important, distinctive or recognisable part of the photograph that is sufficient.

Copyright is not infringed by someone copying your set-up and independently taking their own photograph. It is only the reproduction of the photograph, not the idea for the photograph, that is protected.

There is a "fair dealing" defence that entitles a person to reproduce a copyrighted work for the purposes of criticism or review if there is a sufficient acknowledgement of the work. This probably means you would not infringe copyright by publishing a copy of the cover of a cookbook to accompany a review of a cookbook.

More information can be obtained from the infosheet available from the Australian Copyright Council entitled "Photographers and copyright".

COPYRIGHT IN RECIPES

The good news is a recipe is capable of protection by similar copyright laws that protect photographs. The bad news is that the protection is fairly limited, and unless there is blatant plagiarism of the words used, it will be difficult to establish a breach of the copyright.

So, for example, the inventor of a new dish cannot prevent people from making the dish, nor can they prevent people from writing their own description of how to make it. Everyone of you is perfectly entitled to go away and write down how to make anything you get taught in a master class and you won't be infringing anyone's copyright in doing so.

Of course once someone has committed the recipe for a dish to writing, then that written form is protected by copyright. But it is still the writing that is protected, and not the dish itself. So again, you don't infringe copyright by making the dish from the recipe, nor by publishing your own description of how to make the recipe.

An important limitation on the protection afforded by copyright is that it does not protect ideas. So the idea of using blue cheese to make ice-cream cannot be protected.

It also does not protect bare information such as, importantly for food bloggers, the list of ingredients and quantities used to make a particular cake. It is a common misconception that you can avoid infringing copyright in a recipe by merely changing a ingredient or a quantity. This is misconceived for two reasons. The first is that ingredients and quantities are not protected by copyright in the first place. The second is that even if they were, the mere changing of one or two quantities would not protect you from infringement. You infringe copyright where you reproduce a substantial part of a work (in this case the wording of the recipe) and so it may not be sufficient to simply change a few words here or there.

What is protected by copyright is not the method or technique used, but the expression of that method or technique in written words.

More information can be obtained from the infosheet produced by the Australian Copyright Council entitled "Recipes: Legal Protection".

Admissibility of evidence of surrounding circumstances in interpreting contracts

2011-11-03T10:15:00.000+11:00

The High Court has given unusually long reasons in rejecting an application for special leave to appeal in a case in which the Court was invited to reconsider its previous authority on the admissibility of evidence of surrounding circumstances as an aid in the interpretation of a contract.

The orthodox position, stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352, is that "evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed."

That orthodox position was upheld by the NSW Court of Appeal in Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137, from which decision the application for special leave was brought. In rejecting the application Gummow J (speaking also for Heydon and Bell JJ) said:

Justice Macfarlan gave the leading judgment in the Court of Appeal in this matter. In the passage in his reasons in which he found error in principle in the reasons of the primary judge, his Honour said:

A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted.

His Honour added that the trial judge appeared:

to have acted on the basis that the provision would make more sense from a commercial point of view –

if it were construed as the trial judge did construe that provision. These statements by Justice Macfarlan since have been applied by the New South Wales Court of Appeal in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 at paragraph 18.

The primary judge had referred to what he described as “the summary of principles” in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 at paragraphs 19 and following. The applicant in this Court refers to that decision and to MBF Investments Pty Ltd v Nolan [2011] VSCA 114 at paragraphs 195 to 204 as authority rejecting the requirement that it is essential to identify ambiguity in the language of the contract before the court may have regard to the surrounding circumstances and object of the transaction. The applicant also refers to statements in England said to be to the same effect, including Westminster City Council v The National Asylum Support Services [2002] UKHL 38; (2002) 1 WLR 2956 at 2958.

Acceptance of the applicant’s submission clearly would require reconsideration by this Court of what was said in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352 by Justice Mason, with the concurrence of Justices Stephen and Wilson. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.

The position in Codelfa as a binding authority was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at pages 62 to 63, paragraph 39 and it should not have been necessary to reiterate the point here.

We do not read anything said in this Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 462, paragraph 22; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165, 179 paragraph 40; Wilkie v Gordian Runoff Limited [2005] HCA 17; (2005) 221 CLR 522 at 528 to 529, paragraph 15 and IATA v Ansett Australia Holdings Limited [2008] HCA 3; (2008) 234 CLR 151 at 160, paragraph 8 and at 174, paragraph 53 as operating inconsistently with what was said by Justice Mason in the passage in Codelfa to which we have referred.

Also in the High Court this week

2011-08-09T16:49:00.001+10:00

In Monday's post about what was happening this week in the High Court of Australia, I omitted the hearing this week of Williams v Commonwealth of Australia in which the plaintiff, the father of four children enrolled in a Queensland public school, is challenging the Commonwealth's National Schools Chaplaincy Program, introduced by the Howard government in 2006 and extended for four years by the Gillard Government in 2010.

In 2007 the Commonwealth entered into a funding agreement with the fourth defendant, the Scripture Union of Queensland, for the provision of funding under the NSCP with respect to the school attended by the plaintiff's children. Neither the plaintiff, nor any of his children, has participated in any program or chaplaincy service at the school provided pursuant to the NSCP. There is also no obligation for them to have done so.

The plaintiff seeks to prevent the Commonwealth from spending taxpayers' money on the NCSP, arguing that it contravenes section 116 of the Constitution, which states:

"The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth"

The questions to be addressed by the Court include:

whether the plaintiff has standing to challenge the making of the funding agreement, the drawing of moneys from consolidated revenue for the purpose of making payments under the funding agreement, or the making of payments by the Commonwealth in accordance with the funding agreement.
If the plaintiff does have standing, is the funding agreement invalid by reason that it exceeds the executive power of the Commonwealth under section 61 of the Constitution, or because it is prohibited by section 116 of the Constitution.

This week in the High Court of Australia

2011-08-08T10:29:00.000+10:00

Obviously, of most interest is today's hearing before Justice Hayne in which 16 plaintiffs will argue for an extension of an interim injunction made last night by Justice Hayne, and which expires today at 4:15pm. It would seem to be a difficult ask for the Commonwealth, who would effectively need to argue that the various bases of challenge made by the plaintiffs are simply unarguable. The Commonwealth's arguments about balance of convenience are essentially financial, and given the law's interest in protecting liberty, I can't see a single judge of the High Court finding in its favour. But stranger things have happened.

Liberty also gets a guernsey this week on Wednesday when the High Court hands down its judgment in the related appeals in Haskins v Commonwealth and Nicholas v Commonwealth. In these cases the plaintiffs challenge the Military Justice (Interim Measures) Act (No 2) 2009. This legislation was enacted by the Commonwealth after the High Court declared provisions of the Defence Force Discipline Act 1982 establishing Australian Military Court in Lane v Morrison (2009) 239 CLR 230. The Interim Measures Act purports to retrospectively validate the plaintiffs' detention following sentences imposed by the Australian Military Court prior to the declaration of invalidity.

The High Court will also deliver judgment in the appeals in Boland v Dillon and Cush v Dillon, in which the High Court will rule on whether a statement made by a director of a statutory body to its chairman that published the existence of a rumour as a fact and conveyed defamatory meanings could be the subject of qualified privilege at common law. The statement was: "It is common knowledge among people in the [Border Rivers-Gwydir Catchment Management Authority] that Les [Les Boland, than a 61 year old director of the CMA, married] and Amanda [Amanda Cush, the CMA's 36 year old General Manager, single] are having an affair." At the time the statement was made Ms Dillon, a fellow director of the CMA, neither believed that the two were having an affair, nor that it was common knowledge that they were doing so. In fact, they were not. However, Ms Dillon seeks to justify the publication of the statement to the Chairman on the grounds that the rumours as to the affair had been raised as a matter of concern with her, in her capacity as a director, by a regional director of the relevant Government Department.

Court reporter gets the result the wrong way around

2011-08-05T17:29:00.000+10:00

You may remember in May 2011 James Packer and Lachlan Murdoch succeeded in having the damages claim against them by the One-Tel special purpose liquidator dismissed by Justice Ward, on the grounds that extensions to the period for serving the originating process should not have been granted.

Colin Kruger, from the SMH, filed an article that appeared on the SMH website (but was subsequently taken down after the absurdity of it was pointed out to SMH editors) under the heading: "Packer, Murdoch fail to block $224m damages suit".

The first paragraph said: "Former OneTel directors James Packer and Lachlan Murdoch have failed in their attempt to block a $244 million damages suit against them by the special purpose liquidator of the collapsed telco." Wrong! They in fact succeeded in blocking the damages suit.

The second paragraph said: "NSW Supreme Court judge Julie Ward dismissed the proceedings by Packer and his company, who had argued that successive exemptions by the court to the statute of limitations were improperly granted to the liquidator, Paul Weston." Again wrong! The "proceedings" were in fact dismissed, but the "proceedings by Packer and his company" were not "proceedings" but a notice of motion seeking orders that far from being dismissed were in fact granted. Furthermore, the statute of limitations (which relates to the time for bringing an action) had not been extended at all. What had been extended was the period within which to serve the originating process, once it had been filed.

The fourth paragraph then says: "Mr Packer and Mr Murdoch are entitled to appeal". Again wrong! Not only do they have no incentive to appeal given that they succeeded in obtaining the relief sought, but no party has an entitlement to appeal against the orders made by Justice Ward. At best, the special purpose liquidator can (as he has done) seek leave to appeal.

At least Colin Kruger was prepared to put his name to the article: that was all he managed to get right.

Court reporting frakked again

2011-08-05T16:59:00.000+10:00

This article, "Queensland jury reject's rapist's appeal", appeared in today's online news at www.news.com.au. It is sourced from AAP, and so no journalist has their name attached to it. And one can understand why, as there is almost nothing in the story that is correct.

To begin with, the headline: "Queensland jury reject's rapist's appeal." No, the jury did not reject the rapist's appeal. That's what the Queensland Court of Appeal is for.

Then, the second paragraph, which begins: "A Queensland jury today found him guilty of two counts of rape and one count of indecent dealing...". No, the jury did nothing today. They did their work months ago when they convicted him. It was the Court of Appeal that did their work today, and they did not find him guilty of anything, they simply upheld the jury's original verdict.

Then in the fourth paragraph the article says: "He submitted that the primary judge should have warned the jury to scrutinise the complainant's evidence with great care." In the next paragraph, the article then exclaims: "But this as not upheld by Queensland's Court of Appeal judges". What did the Court of Appeal say? According to the article, they said that the trial judge had warned the jury "to no convict upon the complainant's testimony alone unless scrutinising it with great care."

Hang on...isn't that what the article says was the submission made by the appellant, but then says was not upheld by the Court of Appeal?

The fourth paragraph should read that the trial judge "had not" warned the jury, not that the trial judge "should have" warned the jury. Only then does the last paragraph make sense.

Please, can we have some people who can (a) write, and (b) know something about court procedure?

Lamentable and ill-starred litigation in the High Court

2011-08-03T23:50:00.001+10:00

The High Court has handed down its decision in Byrnes v Kendle, in which an estranged husband was ordered to account to his estranged step-son for uncollected rent from a property owned by the husband, partly held in trust for the wife, and occupied by the husband's biological son.

That the case was in the High Court at all was the subject of comment in a number of the judgments. Chief Justice French noted that the case concerned a husband and wife in their 80s, now separated, who had been engaged in litigation with each other for more than two and half years over "relatively small sums of money" (almost $75,000...which may not be "relatively small" to most Australians). It was, according to French CJ, "a great misfortune for them and their families" that they should be involved in such litigation at this time of their lives (again, the wife's son may not have considered his success in being awarded $75,000 plus costs to be a "great misfortune"). In a similar vein, Justices Heydon and Crennan described the litigation as "lamentable and ill-starred." Perhaps unsurprisingly, there was no such emotive language from Justices Gummow and Hayne.

In any event, back to the decision at hand. The husband and wife married in 1980 and separated in 2007. At the time of their marriage, each had children from previous marriages. In 1984 the husband purchased a home unit in Brighton, South Australia using finance provided under a scheme for members of the defences forces. He was the sole registered proprietor of the property. In 1989 the wife's son (a solicitor, and the party to the proceedings who ultimately will be paid the $75,000) instigated the execution of a deed by which the husband acknowledged that he held one half of his interest in the property upon trust for the wife.

The Brighton property was sold in 1994 and the proceeds applied to the purchase of another property (the "Rachel St property). Again, the husband was the sole registered proprietor. In 1997, and again at the instigation of the wife's son, a further deed was executed whereby the husband acknowledged that he held one half of his interest in the property upon trust for the wife.

In 2001 the husband and wife moved out of the Rachel St property which was then let to the husband's son. He lived there until 2007, but paid rent only for the first two weeks. It was in 2007 that the husband and wife separated, the Rachel St property was then let to a paying tenant, and the wife's interest in the property/trust was assigned to her son (the solicitor, who had instigated the execution by the husband of the deeds acknowledging the trust).

At issue in the case was:

(a) whether the husband in fact held one half of his interest in the property on trust for the wife;
(b) if he did so, whether he was in breach of his obligations as trustee in failing to collect rent from his son (and account for one half of that rent to the wife);
(c) whether the wife had acquiesced in the breach of trust.

The question of whether the husband held half the property on trust for the wife should have been a non-issue. The deeds clearly stated that he did. However, the trial judge had held that when the husband signed the deeds all he intended to do was to acknowledge that upon the eventual sale of the Rachel St property the wife was entitled to half the proceeds. It was this finding as to the subjective intention of the husband that led to the trial judge holding that there was no trust created. In dealing with this issue, the three judgments in the High Court emphasised that while there must be an intention to create an express trust, that intention is to be discerned not by determining what the husband intended to do, but what he in fact did by executing the deed. In other words, the question is not "what did the husband mean to say" but "what was the meaning of the words the husband in fact employed". Or, in the rather more colourful words of Charles Fried adopted by Justices Heydon and Crennan, one should not "take the top off the heads of authors and framers - like soft-boiled eggs - to look inside for the truest account of their brain states at the moment the texts were created" but rather "the words and text are chosen to embody intentions and thus replace inquiries into subjective mental states...the text is the intention of the authors or framers."

The question of whether the husband was in breach of his duties as trustee in failing to collect unpaid rent had been dealt with by the Full Court in South Australia by reasoning that the trust was simply a "device" to produce a position whereby the husband and wife were in substance, although not at law, co-owners of the property, and that had they simply been co-owners of the property there would have been no obligation on the part of the husband to let the property and get in rent. However, as Justices Gummow and Hayne noted, this rather seems to reverse the relationship between law and equity, and is without logic. As the trust property was land, it was the husband's obligation as trustee to render that land productive by leasing it, and the benefit of the obligation to pay rent was held by the husband on trust for the wife.

The question of acquiescence in the breach was based upon findings by the trial judge that the wife was well aware of her rights in respect of the property, and despite the advice given by her son (the solicitor) that the husband owed duties to her to collect the rent, for the sake of matrimonial harmony she unwillingly consented to her husband's decision not to press for the rent. This, the High Court held, was insufficient to amount to acquiescence in the breach.

Perhaps the most useful aspect of the judgment is the collection of references in relation to the inadmissibility of evidence as to the subjective intention of parties in construing a written instrument, and conversely the limited circumstances in which such evidence is admissible for the different purpose of evidencing the contest in which the instrument was executed.

Perhaps the most interesting thing about the judgment is that Justices Gummow and Heydon (Heydon now being an author of the leading trusts and equity texts in Australia that were, until the last edition of each, co-authored by Gummow) could not join in a judgment in this case.