Peter A Clarke

The Thirty Years War of 1618 – 48 has sunk into relative, if not complete, obscurity with most historians.  Or least those that write for the masses.  Interest in military history tends to focus on the struggles of the twentieth century followed by the American Civil War and the the Napoleonic War. The Roman conquests and those of Ghengis Khan continue to fascinate of course and why not. They are amazing feats.  That said their impact on modern society pales into insignificance to what the Thirty Years War did to Europe and the impact of the Treaty of Westphalia, signed in Munster this day 360 years ago.

The Thirty Years war started out as a war of religion, the post reformation clash between Protestant and Catholic powers, fought mainly in Germany, and ended up a war between the two (Catholic) Superpowers, France and Spain. It marked the transition from battle being fought largely with cold steel and the push of the pike to the mass use of firepower in the form of musketry and artillery.  It was also one of the most brutal wars ever fought.  It cost 350,000 dead on the battlefield and 8 million civilian casualties.  Germany lost 40 percent of its population.  By way of comparison in World War II, Byelorussia, which suffered the greatest loss per capita losses, (followed closely by Poland) lost 17 per cent of its population.  When the city of Madgeburg was stormed on 20 May 1631 only 5,000 of 25,000 survived the pillage.  By the end of the War the German countryside, usually incredibly fertile, couldn’t support 2,000 men the march. That had a huge impact on the way wars were subsequently fought, in Europe at least. While they were bloody affairs they had a formality about them and there was very little plundering.  For over 200 years wars had relatively little direct effect on a civilian population unless the poor schmucks were in a city under siege or living on or near a battlefield.  Wars revolving around religion became an anarchronism. Modern ideologies of Communism and Fascism are the closest modern manisfestation and that took over 250 years to re emerge (and the analogy is stretched too thin even with that comparison).  It wasn’t until the twentieth centuries conflict that indiscriminate violence on the civilian population became endemic and the notion of making war on an entire people (with bomibing of cities and deliberate starvation policies). Read the rest of this entry »

Often, from little cases come big principles.   A snail in a bottle of ginger beer at the Wellmeadow Cafe in Glasgow spawned the tort of negligence courtesy of Donohue v Stevenson ([1932] AC 562).  A fight over what the ticket said about the terms of usage of the Balmain ferry gave Mr Robertson a merry ride up to the High Court and then across the pond to the Privy Council and Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. 

I doubt whether Clarke v Elias will hit such lofty heights on the question of delegation of powers.  It is notable for the minor issue in question, a $100 fine for a driver wearing jeans in contravention of the regulations.  One can only hope not.  Clarke, who lost at first instance and then on appeal to the County Court, argued that there had been an invalid delegation by the legislature to the Secretary of the Department.  The nature of the invalidity was that the Secretary did not have the power to set uniform standards.

Relevant principles Read the rest of this entry »

Justice Reeves decision yesterday in NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551 (17 October 2008) has caused a minor stir in the media.  PM’s coverage of the story portrays it as a confidentiality/medical records type case whereas in fact the matters under consideration were technical and narrow. 

The test, as Reeves J saw it, was Read the rest of this entry »

Both the Age and the Herald Sun have run almost identical articles about Theo Theophanous calling for privacy.  No surprises why.  Both AAP pick ups.  I wholeheartedly agree with the call for privacy (that amorphous non legal concept which should be protected by the law.  Another comment for another time) but have a bit of a problem with the call being made now.  It seems that the  Theophanous camp has already ascribed a motive to his accuser (a payout, compensation however else you want to describe it) and engaged in some public banter.  While I can understand the spin (maybe) it is a bit hard to call for privacy after you have indulged in a bit of media play yourself.  But never to late to change tack. 

The statement has its own flaws.  It reads:

“I just want to make a statement on behalf of the family following some legal advice that we’ve got,” Harry Theophanous said.

“We want to again inform the media that it’s inappropriate for anyone to make any public comments about this case as it would amount to interfering with a police investigation.

This paragraph is overbroad to the point of being just plain wrong.  So anyone making any public comments about “this case” ( whatever that means) constitutes an interference with the police investigation.  New law being created right before our very eyes.  So the Premier’s general commentary about his lack of knowledge until the last moment and urging the police to investigate quickly, as he did, is an interference.  Really?  Comments about the way the controversy has been reported is an interference with a police investigation.  Who would have thunk it!  The paragraph is just plain nonsense. Dramatic nonsense, but nonsense nevertheless.  Whether there has been interference, hinderance, perverting the course of justice depends on what is said to whom and when.  It is, like most things in the law, a matter of looking at the facts and applying the principles.  Be sure that the boys in blue won’t be pulling out the bracelets and slapping them on everyone who makes a comment about “the case.”

“For this reason, my father is unable to speak to the press, the family is trying to deal with a difficult situation and we’d like our privacy respected.

Of course Theo Theophanous can speak to the press.  Whether he should is an entirely different matter.  In the normal course he would be foolish to do so.  But that is not what the statement says.  Again, it depends on what he says and why.

“We urge you to let justice take its course and allow the police to complete their inquiries.

“There will be no further comments from the family, thanks.”

  With a bit less commentary this sad saga should loss some of its spark.  Or at least one can only hope.  As for Theophanous’ legal advice, well I whatever the author was smoking, it is time to share man!

Today the Herald Sun has a fairly salacious splash about Theo Theophanous’ possible pending legal problems in Victorian MP Theo Theophanous accused of raping woman in Parliament | Herald Sun.  The The Age’s Woman tells of being ‘raped’ by minister   reportage is perhaps a few decibels less shrill  but it still rips a bodice or two. The victim is quoted at length.  From a lawyers perspective that is not the smartest move.  it provides a starting point to a line of cross examination if charges are laid.  Why all the reporting now? The obvious first answer is that it is probably the biggest political story to come (no pun intended) out of Spring Street.  The government has come under more strain from this accusation than the limp attacks by her Her Majesty’s Opposition.   Melbourne’s Fourth Estate are making hay because the sub judice rule does not apply at the moment.  Good for pit bull journalism, lousy for a free falling MP and not much good for the legal system. 

Sub judice  (Latin literally before the Court) prohibits reporting details of a case.   The  rule  provides that, with a few important exceptions and qualifications, it is a contempt to publish material relating to “pending” (that is, current or forthcoming) legal proceedings if that material has, “as a matter of practical reality, a tendency to interfere with the course of justice”. (see Hinch v Attorney General (Vic) (1987) 164 CLR 15).  In Hinch the court said the offending publication must “exhibit a real and definite tendency to prejudice or embarrass pending proceedings”. Whether there is that  tendency is determined from an investigation of the likely impact of the publication on one or more of the participants in the proceedings. Read the rest of this entry »

In Beston Parks Management Pty Ltd & Anor v Sexton & Anor Hollingworth J considered, on an appeal from a decision of a Master, an application for preliminary discovery under Rule 32.05.  The fact situation is familiar to commercial lawyers; executives enter into a agreement(s) upon leaving a company, presumably in exchange for a pay out.  The terms of the agreement(s) contain restrictive covenants preventing them from competing against their erstwhile employer or using confidential information they acquired during their tenure. The company suspects their formally loyal employees are about to set up in competition when they receive emails inadvertently addressed to the loyal troupers care of their previous address.  

The decision is a useful analysis of a procedure which is not used as often as it should be.   All to commonly the plaintiff will issue proceedings with insufficient information and find out, upon discovery that it needs to recast its case or that the initial suspicion falls at the early evidentiary hurdle.  It is one thing to amend a statement of claim to refine the allegations it is an entirely more difficult and fraught exercise to recast a pleading to essentially change the cause of action.  

The practical problem for a potential applicant is not the first pre requisite, knowing whether it might have a cause of action, but rather whether it has or doesn’t have sufficient information to decide whether to commence an action without preliminary discovery and whether it has made “all reasonable enquiries” before making the application. 

Principles Read the rest of this entry »

Nothing like a global downturn to make lawyers brush up on their insolvency law.  The starting point for a creditor winding up a company is the statutory demand.  The Tax Commissioner is a promiscious user of this particular legal scalpel.  So it is timely to consider two recent decisions on statutory demands; Broadbeach and  West International. The High Court decision in Broadbeach is particularly important in limiting the discretion available to the courts when considering an objection to a statutory demand based on an assessment by the Australian Taxation Office. Read the rest of this entry »

 Sivritas v Sivritas involves an interesting analysis by Kyrou J’on constructive and resulting trusts. Kyrou J clearly had a difficult time working his way through conflicting evidence.   

There were significant conflicting factual issues which prompted  Kyrou to state, at 41::

In these circumstances, the most reliable evidence was the evidence in contemporaneous records and oral evidence that was supported by such records.

Resulting Trust (paragraphs 118 – 127):

In a purchase money resulting trust claim (at 118):

• (at 118)where one party purchases property in the name of another or in joint names of both there is a presumption of a resulting trust in favour of the purchasing party;
• (at 118)where more than one person contributes unequal sums to the purchase price and the property is placed in only one person’s name there is a  resulting trust with each party being tenants in common to the extent of their contributations.
• (at 119) the presumption of a resulting trust can be rebutted by evidence of cotrary intention such as shared intention, contrary intention or a intention to make a gift;
• (at 121) a contrary intention needs to be expressed at the time of the transaction or immeidiately after it.  Subsqeuent acts are only admissible as admissions against interest.  Intention is evidenced from words or conduct (@ 122).
• (at 122) often there is a counterveilling presumption, commonly the presumption against advancement.
• (at 124 – 7) beneficial interest is determined solely by direct financial contribuation to the purchase price
• (at 135) where there is a resulting trust and the parties are tenants in comon and there is mortgage over the property the party who pays more than his fair share of the mortgage chas an equitable charge securing contribution from the other party.

 Constructive Trust

Muschinski v Dodds constructive trusts arises when a non legal owner contributes to the property.  Kryou J @ par 129 describes the trust as:

129 A Muschinski v Dodds constructive trust arises:[28]

where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do …

 In determinig the scope of the trust the Court can consider (at 132):

..direct financial contributions to the purchase price of the property and incidental costs such as stamp duty, registration fees, solicitors’ fees and bank fees. …the pooling of financial resources,[33] other financial contributions even in the absence of pooling,[34] contributions of labour,[35] and non-financial contributions or contributions in kind such as homemaking and parenting contributions.[36] Further, the inquiry into whether the assertion by a party of his or her legal rights would be unconscionable can encompass events that occurred after the property was initially acquired. Expenditure on repairs and renovations of the property by a person asserting a constructive trust in respect of the property, where the expenditure is accepted by the legal owner of the property in the knowledge that it would improve the home and add to its value…

In short a wide ambit. 

Common intention constructive trust arises (at 134)when:

• there is actual or inferred common intention of the parties to a beneficial interest in the property; and
• the claimant has acted to his/her detriment on that intention; and
• it would be equitable fraud on the claimant to deny the claimant’s interest.

Kyrou J’s exercise is calculating the interest in the property is worth reading though such calculations will vary from case to case.

Conclusion

The court found for the plaintiff, with an interest of 73.61%,  and found that the defendant’s hold the property on constructive trust for him.   

There is no substitution for discovery.  Then again cases like these involving families which go from a loving and close relationships to a state of bitter civil war rarely involve detailed record keeping. It is all the more complicated when the critical events track back a decade or two and the parties are not particularly well educated.  The best fall back is subpoenas on anyone who had anything to do with the purchase, the bank, the lawyers, the real estate agent etc…