Peter A Clarke

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 »

This decision, on an appeal from a Magistrate’s Court decision, provides a useful analysis on reliance in a Trade Practices claim under section 52 (and 82)  and the adequacy of decisions below.  The plaintiff is a real estate agent chasing commission.  It seems to be a grim sub specialty of Magistrate’s Court work. From experience, in the Magistrate’s court it is a tough case to defend if the plaintiff can show there was a sale, notwithstanding complicating issues of agency and whether the agent actually did the work.

The key lesson here is that a plaintiff has to take care in formulating its case at the outset.  Put another way, pleadings matter.  On appeal the respondent had to concede the case was misconceived as pleaded.  The other issue is that in a misrepresentation case just proving some form of misrepresetation is not enough (though even that was not achieved here). Reliance and causation are equally important.  Simple enough one would think.  Surprisingly common to see.    

Features of the decision.    

• Pleading the case properly & proving reliance and causation of loss.  Reliance  – “I did X based on the representation or I wouldn’t have done X if I had known Y & Z is all too often ignored.  Judd J makes that point when he said:

16 It is critical in most trials, as it was in this case, to carefully define conduct alleged to constitute misleading or deceptive conduct for the purpose of a claim made under the Trade Practices Act. The pleading of misleading or deceptive conduct not only defines the evidence concerning the conduct relied upon but is crucial to the issues of reliance and causation. In this case the Magistrate does not appear to have considered reliance or causation. Nor is it apparent that evidence was directed to those issues. While I accept that evidence of reliance is often formulaic and may be unhelpful, or even contrived, there are cases in which there is a real issue of reliance and causation, where evidence must be weighed and a decision made as to whether or not the conduct was relied upon (in this case to enter into the agency agreement) and caused the loss claimed. This is one such case.

• Obligations in giving reasons for decision.  In this case Judd J critisized the Magistrate’s finding of fact and law, that the lease was incapable of being assigned (it was) but also the inadequacy of the reasons for decision.  Judd referred to Fletcher Constructions Australia Ltd v Lions McFarlane & Marshall Pty Ltd (No2)  (extracted in green below) on the three elements required in a statement of reasons.  They are, at [24} :

• The judge needs to refer to the relevant evidence in his decision.  If it isn’t referred to the appellate court may (read will) infer that it was overlooked or didn’t consider it. 

First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it … Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

• Set out the material findings of fact and the conclusions & where there is conflicting evidence why one is preferred over the other.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … [W]here findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. … Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance …

• The court needs to provide reasons for making hte findings of fact and the application of the law to those facts in an understandable way.

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.

What Judd J did not say in detail but hinted at at [29]  & [30}when he said:

29 In my opinion, the lack of commerciality of the transaction also interrupts the causal connection between the alleged conduct, as reformulated, and any loss and damage.

30 It is in the interests of justice that this litigation be brought to an end. I dismiss the claim made by Maximum. I will hear the parties on costs.

was that the costs would have been hidieous in this case.  For a claim of $7,500 it is hard to imagine the professional costs and disbursements being less than $30,000 (probably a lot more).  It is little wonder that he brought a halt to it at the appellate level and did not remit it for rehearing.   

In this relatively short judgment Gordon J provdies a good summary of the relevant principles in setting aside a statutory demand and the hearing of an appeal from a Registrar.

Review of Registrars decision

The Federal Court review’s a decision as a hearing de novo.  On review further evidence can be adduced.  Gordon J said at [6]

6 The function of the Court, on review of a Registrar’s decision under s 35A(5) of the Federal Court Act, is to rehear the case and decide the facts for itself. It is a hearing de novo. That is to say, it is a complete rehearing at which the parties may adduce further evidence. It is for the Court to be satisfied of the matters prescribed by the Act and to exercise the discretion unfettered by the decision of the Registrar. The cases that make good those propositions include: Mazukov v University of Tasmania [2004] FCAFC 159 at [22]–[27]; and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [6] and [12] and Callegher v Australian Securities and Investments Commission (2007) 239 ALR 749 at [46].

Principles applicable in setting aside a statutory demand

To set aside a statutory demand the Court has to be satisfied there is a bona fide genuine dispute and the grounds of the dispute have to be real and not spurious.

7 The principles to be applied by the Court in determining an application to set aside a statutory demand are also not in dispute. The Court must be satisfied that there is a genuine dispute between Ultradrilling and West about the existence or amount of the debt to which the demand relates: s 459H(1)(a) of the Act. That issue is determined at the time the Court hears the application: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 at [16]. For a genuine dispute to exist, the dispute must “be bona fide and truly exist in fact”. The grounds for alleging the existence of a dispute must be “real and not spurious, hypothetical, illusory or misconceived“: Spencer Constructions Pty Ltd v G&M Aldridge Pty Ltd (1997) 76 FCR 452 at 464; see also John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253 and TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 at 79.

The Court looks to the affidavit to determine whether there are facts which support a claim to a genuine dispute.  The court should stop there and not test the facts or the merits.  It can be a fine line.  Gordon J said @ [8]:

8 The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact or determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd (2006) 155 FCR 556 at [40]. The Court determines only whether the supporting affidavits filed and served by West depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction 14 ACSR at 253, something between mere assertion and the proof of the existence of the disputed debt is required: see also Micha International Pty Limited v Jong Seol Lee [2008] NSWSC 921 at [5] and Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 at [23].

While the court makes a distinction between working out whether the affidavit contains sufficient material to show there is a genuine dispute and working out the merits of the case the analysis by Gordon J is quite thorough and typical of courts considering the contending claims.  In my experience the court goes further than merely establishing there is a genuine dispute based on reasonable grounds but also tests that evidence to the extent it is able to when dealing with affidavit material.  So it is important to have a thorough affidavit both in terms of the factual basis for a claim and the quantum in dispute, especially if there is an offsetting claim. The affidavit should include all relevant dates and details of work done and not done. 

The Turnbull v Nelson fight is over.  Turnbull is leader by 2 clear votes.  But so what.  A win by one vote for a challenger is enough.  Nelson is onto the back bench and nobody expects much in the way of a return by the good doctor. Turnbull’s first media conference bespeaks his style, a broad sweep grand commentary and one full of optimism and supreme confidence.  That is half the problem.  Will he flame out.  Methinks yes.

The press coverage is all about Turnbull being a force of nature, a doer rather than a talker and a breath of fresh air.  All of that is good and most of it necessary in a new leader.  But the pre requisite of being a successful political leader is having an ideological base, a belief system consistent with that of the party you lead.  Nelson doesn’t have it.  I generally agree with Gerard Henderson’s view on Nelson in today’s SMH where he says:

Nelson’s difficulties go back to a time before he joined the Liberal Party. As the leader of the AMA, he indicated he wanted to enter politics but it was not clear whether he favoured Labor or the Coalition. Then, campaigning in the 1993 election, Nelson declared that up to that time he had never voted Liberal in his life. This seemed plausible. As a medical practitioner running a small business, Nelson was hit by the high interest rates during the early 1990s when Bob Hawke and then Paul Keating were prime minister. Nelson subsequently revamped his position to be that he voted Liberal for the first time in 1990. Either way, his past political allegiance has been ambiguous – something which cannot be said of Menzies or Howard, Hawke or Rudd.

As Opposition Leader, Nelson has scored some short-term hits. Yet he has made no substantial impact, primarily, it seems, because he has no unambiguous positions on economic or social policy. In recent times, Nelson has failed to state an unqualified position on such issues as climate change and Reserve Bank independence. There are many more such examples….

Where I disagree is where he says:

In spite of his relative political inexperience, Turnbull does have firm positions. That’s why he looks like leadership material now that Costello has walked away from the job and now that the Coalition appears to have an ever so slight chance of victory in 2010.

Turnbull’s may state a range of positions but I can’t see the ideological coherence.  He has come out on a few issues against the pack, eg the Henson photos brouhaha, but  hasn’t contribunted much to the political debate.  He was an ambiguous as they come in the constitutional convention and republican movement.  It was classic Turnbull, the results are all that matter no matter what. Turnbull doesn’t have it. Both Nelson and Turnbull are cut from the same cloth ideologically, their belief system is having their boney fingers wrapped around the levers of power.  That lack of coherence brought Nelson undone, as Henderson notes.  It is one of Turnbull’s flaws too. 

The really interesting story is what to make of Pistol Pete Costello.  He sat this one out and was quite dignified in stating his role as being, well, nothing. Except he made his support for Turnbull clear on Radio National this morning.  But, and there is always at least one in politics, Mitch Fifield and Anthony Smith came out to announce their switch from Turnbull on the last occasion to Nelson on the one finished earlier today.  Both are ex staffers of Costello and serious carers for Pistol Pete.  They don’t pack too much in the way in intellectual firepower but are good aparatchiks and every party needs those foot soldiers.  True Nelson supporters filled the airwaves in the 16 or so hours before the vote but Fifield and Smith’s contribution on today’s AM is something else.  Costello is not a Turnbull hugger. That is hardly new.  Thwarting him would be a plus on so many levels.  Nelson’s leadership would have been low hanging fruit closer to the polls. Well it hasn’t worked but that doesn’t mean it is over vis a vis a Costello try on later.  I agree with the musing of Peter Brent that Costello may be waiting for a last minute change before the next election, especially if he remains the member for Higgins into 2009.  

Whatever the ins and outs of the parlimentary machinations it is going to be a grim 12 months for the Federal Opposition. 

Self represented litigants are God’s way of telling the court to slow down a bit and that barristers haven’t suffered enough. Cases run on and on, judges bend over backwards giving the punter every opportunity to turn the bags of assertions thrown up into something vaguely representing submissions and evidence.  The horror, oh the humanity! 

There is one form of torture even more excrutiating – the friend of the self represented.  Not a lawyer but a wannabee advocate usually.  Often a family member but sometimes a well meaning friend.  Whoever it is it is usually the worst of all worlds for everybody.  This claytons advocate  run the case for the putner but will happily scurry back to the safety of “I am not a lawyer” land when he or she comes under pressure.  In my experience these people are gnerally motivated by altruism, they are a good friend of the punter and are better educated and/or have a better working knowledge of English. Then there is the McKenzie Friend who can assist but not act as an advocate.  In Apostolou the court had to sort out what role the “friend” played.  It became even more complicated when it was clear that the friend had an interest in the defendant’s case. 

Mandie J made some interesting observations about how to approach the issue: Read the rest of this entry »

The current High Court’s reputation as a black letter court is well established.  In Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41  the court has effectively closed off any challenge to a statutory demand based on a tax assessment. With Broadbeach and  Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9 whatever limited discretion given to the Supreme and Federal Courts are now severely curtailed.  It is an interesting case because the court considered the policy considerations and tensions in considering the operation of statutory demands when enforcing the Income Tax Assessment Act.  In the clear tension between the two, the Court has sided with the Commissioner. Protecting the revenue is a strong policy consideration guiding the modern court. 

A brief analysis follows: Read the rest of this entry »

Justice Byrne can turn a phrase when he has the mind to. Quite lyrical in fact. He can also be brutally blunt as he picks his way through the entrails of barrister’s pleadings.  Hydedale Pty Ltd & Anor v Robert Luxmoore Pty Ltd & Ors is a fairly straightforward, if anything about a property development partnership can be so described.  Most of the relevant evidence is oral and the book work is a mess.  In my experience that is the handiwork of the knockabout developer.  Where the case is is useful is the comments His Honour made about the role of counsel and how the pleadings should relate to the way barristers should run their case:

The relevant comments are at: Read the rest of this entry »

If VCAT wanted to get a nice splash of coverage as one of the “good guys” on climate change it got it care of Gippsland Coastal Board v South Gippsland SC. One of the reasons for overturning the council’s permit is the possibility of rising sea levels.  So now the law courts buy into the scientific debates.  The evidence is a CSIRO report.  Intellectual rigor is not the by word for this decision. Read the rest of this entry »