This week in the High Court of Australia

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

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

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

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.

This week in the High Court of Australia

This week the High Court delivers judgment in two cases.

In Byrnes v Kendle certain land was owned by a husband: one half share he held in his own right and the other half share he held as trustee for his wife as tenant in common.  A son of the husband lived in the property for a period of five years.  He did not pay rent to the husband, a fact that was known to the wife.  The husband and wife separated, and the wife claimed the husband was in breach of his duty as trustee of her interest in the property by failing to collect the rent from his son.  She claimed that the husband should account to her for half of the rent that ought to have been paid by the son.  The Full Court in South Australia held that in letting out the property the husband was not under the same duties that a trustee who lets out trust property is under.  The lease to his son was carried out not as trustee but as one of two co-owners.  He was under no duty to collect the rent, and under no obligation therefore to account to the wife.  Even if he were, the wife had acquiesced in the breach in circumstances such that it would not be just and equitable to now require the husband to account for her share of the unpaid rent.

The other decision is Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd, a case dealing with the construction of, and interaction between, the Environmental Planning and Assessment Act 1979 (NSW) and the Ku-ring-gai Local Environmental Plan No 194.  I’m falling asleep just writing that, but at issue essentially is whether or not Dalcross Properties is entitled to operate a Private Hospital on certain land.

A summary of the first (but almost certainly not the second) of those judgments will be posted shortly after the delivery of judgment.

The High Court will also be hearing argument in three cases this week.

The first case to be heard, Wotton v State of Queensland concerns whether or not certain provisions of the Corrective Services Act 2006 (Qld) impermissibly burdens the freedom of communication of government and political matters, to wit, the appellant’s right to participate in public discussion of political and social problems affecting Aboriginal persons in Australia and problems in the prison system in Queensland that he experienced as a result of his incarceration as a result of his participation in the riots on Palm Island following the death of Mulrunji Doomadagee.  Released on parole, he was subject to numerous conditions that included that he:  not attend public meetings on Palm Island without the prior approval of the corrective services officer; be prohibited from speaking to and having any interaction whatsoever with the media; and, receive no direct or indirect payment or benefit to him, or through any members of his family, through any agent, through any spokesperson or through any person or entity negotiating or dealing on his behalf with the media.  No doubt the “Human Headline” will be watching this case with interest.

The second case to be heard, Moti v The Queen concerns the legitimacy of the trial of the former Attorney-General of the Solomon Islands on charges of sexual intercourse with a minor.  Although the offences were alleged to have occurred in Vanuatu and New Caledonia, Mr Moti was at the time an Australian citizen and therefore subject to the Commonwealth’s “sex tourism” laws.  Mr Moti seeks a stay of the proceedings on two grounds.  The first relates to payments made to the complainant by the Australian Federal Police. The complainant told the AFP that she wanted herself and her family taken to Australia until the end of the appellant’s trial or she would withdraw from the case. Her father told the AFP that his business in Vanuatu was adversely affected by the publicity and that the complainant and her family wanted to be taken to Australia and given financial support or the complainant would withdraw from the case. The AFP brought the complainant to Australia and, between February 2008 and November 2009, paid financial support in a monthly allowance in total of $67,576 to the complainant and $81,639 to her parents and brother in Vanuatu.  The second ground relates to an allegation that Mr Moti was brought to Australia, with the concurrence or connivance of Australian authorities, in disregard of proper extradition procedures and in breach of his rights under the Deportation Act of the Solomon Islands, and in breach of a court order made in the Solomon Islands

The third case to be heard, Strong v Woolworths Ltd may be an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or it may be a fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.  

50th anniversary of the "Dutch Courage Rule"

Today marks the 50th anniversary of the House of Lords' decision in Attorney-General for Northern Ireland v Gallagher.  

In this case Gallagher and his wife had been married for 16 years during which time they frequently quarrelled, usually after he "had taken drink", and was on occasion violent towards her.  During a period in 1960 he was in and out of a mental hospital in Omagh.  During one of his periods of release he purchased a knife,  a bottle of Guinness and a bottle of Power's whisky. He went to his wife's house, drank most of the whisky, then brutally murdered his wife. When arrested by police he said: "I have no regrets: she gave me a hell of a life these past three years" and subsequently, having been cautioned, said: "I made up my mind to kill her about a fortnight or three weeks ago."

The issue in the case was delightfully summarised by Lord Denning:

"The man is a psychopath. That is, he has a disease of the mind which is not produced by drink. But it is quiescent. And whilst it is quiescent, he forms an intention to kill his wife. He knows it is wrong but still he means to kill her. Then he gets Himself so drunk that he has an explosive outburst and kills his wife. At that moment he knows what he is doing but he does not know it is wrong. So in that respect—in not knowing it is wrong—fee has a defect of reason at the moment of killing. If that defect of reason is due to the drink, it is no defence in law. But if it is due to the disease of the mind, it gives rise to a defence of insanity. No one can say, however, whether it is due to the drink or to the disease. It may well be due to both in combination. What guidance does the law give in this difficulty?"

The answer to that question, was as follows:

“My Lords, I think the law on this point should take a clear stand. If a
 man, whilst sane and sober, forms an intention to kill and makes preparation 
for it, knowing it is a wrong thing to do, and then gets himself drunk 
so as to give himself Dutch courage to do the killing, and whilst drunk 
carries out his intention, he cannot rely on this self-induced drunkenness 
as a defence to a charge of murder, nor even as reducing it to manslaughter.
  He cannot say that he got himself into such a stupid state that he was 
incapable of an intent to kill. So also when he is a psychopath, he cannot 
by drinking rely on his self-induced defect of reason as a defence of 
insanity.  The wickedness of his mind before he got drunk is enough to 
condemn him, coupled with the act which he intended to do and did do.
 A psychopath who goes out intending to kill, knowing it is wrong, and does
 kill, cannot escape the consequences by making himself drunk before doing 
it. ... . 
I would agree, of course, that if before the killing he had discarded his 
intention to kill or reversed it—and then got drunk—it would be a different
 matter. But when he forms the intention to kill and without interruption
 proceeds to get drunk and carry out his intention, then his drunkenness is 
no defence and none the less so because it is dressed up as a defence of
 insanity.”

Nowadays (and in England at the time, but not in Northern Ireland) Gallagher could have successfully raised a defence of diminished responsibility.

Changes to NSW Barristers' Rules

Effective from 8 August 2011, the former NSW Barristers' Rules will be replaced by the Barristers' Conduct Rules.

A comprehensive comparison of the two will be the subject of a later blogpost, but two differences immediately jumped out at me.

First, the former rules were, according to Rule 3, "made in the belief that...the role of barristers as specialist advocates in the administration of justice requires them to act honestly, fairly, skilfully, diligently and bravely."  The new rules no longer believe that barristers are required to act bravely.

Secondly, previously a barrister could return a brief under Rule 99(c) where "fees have not been paid reasonably promptly or in accordance with the costs agreement, and have remained unpaid after reasonable notice by the barrister to the instructing solicitor or client, as the case may be, of the barrister's intention to return the brief for that reason." Now, the only relevant power to return a brief for non-payment of fees appears to be under 99(m) "in accordance with the terms of a costs agreement which provide for return of a brief."

So, for those barristers with a costs agreement, it is time to amend it to provide specifically for the power to return a brief for non-payment of fees.  For those barristers who don't have costs agreement (relying solely upon the fee disclosure regime), it may be time to have one.


UPDATE:  It has been pointed out that new Rule 99(d), which has the chapeau "a barrister may refuse or return a brief to appear before a court", provides that a barrister may do so "if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement."  This, it is argued, provides a power to return the brief upon non-payment of fees.  This seems to me to ignore the tense in which 99(d) is expressed, which contemplates the barrister having a belief about non-payment of fees that have not yet been rendered.  While this belief might be evidenced by the fact of non-payment of past fees, the non-payment itself does not give rise to an entitlement to return the brief, and if the client were able to satisfy the barrister that future fees would be paid on time, in my view  there would be no entitlement to return the brief.