Verisimilitude

August 26, 2014

microphone

The son in financial difficulty who uses his mother’s property as security for a loan is a well known recipe for a dispute with the bank about unfair or unconscionable conduct. That was the case in Permanent Mortgages v Vandenbergh [2010] WASC 10.

The trial judge made the following observations about the evidence of the 94 year old (at the time of trial) mother (at [114]):

“…she did not appear to be physically or mentally frail, although she appeared to be slightly hard of hearing. She arrived in court in a wheelchair, which indicated that she had some difficulty with mobility, but she was able to ascend the steps to the witness box holding on to the rail, and otherwise she gave the appearance of being in reasonably sound health. Also, despite her age, she appeared to be a lively and intelligent woman. Her increasing irritation at the cross-examiner’s questions in a particular area of her evidence was evident, and led at one stage to a sotto voce ‘oh Christ!’, which is not recorded in the transcript“.

The Judge makes some interesting observations made about the drafting of, and reliance on written witness statements in these types of cases. but the Court found that “notwithstanding the difficulties with her evidence which I have mentioned, I thought there was a real ring of verisimilitude in her evidence…”. Excellent!

Creative commons acknowledgement for the photograph.

Shades of Lord Denning

July 23, 2014

Great wall

Lord Denning is well known for his storytelling style of judgment writing. The opening words of Lloyds Bank v Bundy [1975] QB 326 always make me smile:

Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was a Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt.”

I can’t help the feeling that Justice Harrison was inspired by Lord Denning when he wrote his judgment in Hill v Higgins [2012] NSWSC 270 (which was an out of all proportion dispute between two neighbours about a retaining wall). The case occupied 2 full days of hearing in the NSW Supreme Court and ultimately resulted in a judgment for $220. It began:

[1] Mr and Mrs Hill and Mr and Mrs Higgins are neighbours. Their properties are respectively known as 42 and 40 Kurrawong Avenue, Hawks Nest, which is a small hamlet located on the picturesque northern shores of Port Stephens. A modest house is erected on each property. Kurrawong Avenue slopes gently from north to south in the vicinity of the properties. Number 40 is on the higher northern side and number 42 is on the lower southern side. Mr and Mrs Hill purchased number 42 in about November 2005. Mrs Higgins purchased number 40 sometime in the following year.

[2] A mostly brick dwarf retaining wall approximately one metre high and a mesh dividing fence originally ran from east to west along most of the northern side of the common boundary between the two properties. At some stage during 2006, Mr Hill became alerted to the fact that the double brick section of the retaining wall had deteriorated and had developed a slight lean, so that it was to some extent encroaching onto and over his property

[3] It was not long after this that relations between the two couples became very strained indeed. … Surveyors and engineers were soon marshalled on both sides to provide advice and reports on all manner of potential issues arising from these unfortunate circumstances.

[4] It goes without saying that it was not long before legal proceedings were commenced…….

[7] At the end of the second day, and with this very unfortunate state of affairs in mind, it became apparent to me that some different approach to the resolution of the proceedings was called for that was unconstrained by the traditional litigious model. As far as I could determine, both parties were in furious agreement that the retaining wall had to be removed but they could not agree, whether from an engineering, aesthetic or financial standpoint, about what if anything should replace it….

You can read the rest for yourselves and if you’re interested in some more Lord Denning judgments, have a look at: Thornton v Shoe Lane ParkingLewis v AveraySpartan Steel v MartinJarvis v Swan ToursJackson v Horizon HolidaysMiller v JacksonLamb v Camden LBCGeorge Mitchell v Finney Lock Seeds

The photograph was taken by Sydney based, documentary photographer, Bettina Cutler.

Ethics in Action

June 24, 2014

drain

 

Henrik Jan van Es was added to the roll of legal practitioners in NSW on 17 February 2012.

Henrik Jan van Es was removed from the roll of legal practitioners in NSW on 5 June 2014.

So why did the Court of Appeal find that he was not a person of good fame and character and was not a fit and proper person to remain on the Roll? You can read the whole case for yourselves (Prothonotary of the Supreme Court of New South Wales v Hendrick Jan van Es [2014] NSWCA 169), but you get the general idea from [33]:

The only findings available on the uncontested evidence are that there was (a) a deliberate attempt to cheat in the Bar Association’s Ethics examination, (b) a deliberate attempt to deceive a senior officer of the Bar Association following Mr van Es’ exclusion from that exam, (c) a lack of candour in explaining what had occurred to the Executive Director of the Bar Association and (d) a failure, which is ongoing, extending to Mr van Es’ evidence in this Court, to appreciate the obligations of candour owed by Mr van Es.”

I am particularly “fond” of the evidence about the CCTV footage which showed Mr van Es leaving the examination room, sorting through his materials, and placing some of them down the front of his trousers & pulling his jumper down over them (no-one will notice).  Not only is there irony in cheating in an ethics exam (which is the easiest of the 3 compulsory bar exams), but he also showed sound judgment (not) in litigating this in the Court of Appeal. No doubt a promising career down the drain.

Shout out to fellow member of chambers, Luke Fermanis for alerting me to this case.

Creative commons acknowledgment for the photograph.

Queen’s English

May 26, 2014

finger

In November 2009, Luke Webster was summarily dismissed from his position as a teacher (of adult students whose first language was not english) at Mercury Colleges Pty Ltd in Sydney.

The basis for the dismissal was gross misconduct arising after the Director of Studies: “…discovered a worksheet [he] had designed in [his] own hand writing, with several copies made, that had been taught to students this week in the Upper Intermediate class. It contained usage in every sentence, of the word fuck and requested students discuss its different meanings and whether it was being used as a verb or a noun etc“. This was apparently outside the curriculum and highly offensive.

As Mr Webster was a UK national, the end of his employment led to the cancellation of his 457 visa and his return to England, from where he conducted his unfair dismissal case.

In his submissions to Fair Work Australia, Mr Webster said: “Also, as a teacher in Australia, I believed it was important to give students the skills and knowledge to adapt to Australian culture, and to take advantage of living in an English speaking country and improve their English by talking to the locals, and by practising their English outside the classroom. I have taught my students how to order beer in a pub, how to order pizza on the telephone at Domino’s, etc, none of which are in the curriculum, but are, I consider survival skills in the country they have chosen to study in. Many students complained that they couldn’t understand Australian English, so I taught them Australian words and how to interpret Australian accents.” [fair enough! ....and all that with an English accent].

After due consideration, Fair Work did find that the termination of Mr Webster’s employment was harsh, unjust or unreasonable (see Webster v Mercury Colleges [2011] FWA 1807).

Creative commons acknowledgment for the photograph.

Barbarians

April 28, 2014

barbarianAndrew Kostopoulos (a member of my chambers) has been appearing at ICAC (in the enquiry that resulted in the premier’s resignation). On the morning of 7 April 2014, after inviting colleagues to a Hellenic Filoxenia, he raised the following issue:

Second on a more serious note I take great exception to being referred to as a Greek barrister by the media and press as recently reported or by members of the profession,…  I’m a third generation Australian, your Honour, from country stock in Tully Queensland who is Counsel at the New South Wales Bar.  I’ve served my country as an officer with the Australian Army Legal Corp for 11 years, ….  The only medium I have to express these views is through addressing the Independent Commission Against Corruption and with Counsel Assisting by my side as my policy at the bar has always been not to feed fodder to the media directly from my lips.   

I am aware, Commissioner, reputations of witnesses and persons before ICAC are precious and can be ruined by this process of ICAC in a most public hearing like the present one.  The reputation of the Hellenic community of Australia is also featured prominently here in the ICAC. …the Hellenes have been spotlighted here by the media with, for example reference on the weekend to a Greek tragedy by the media.  This is highly offensive.  Any reference to the term Greek which derives from the Latin word Grauci G-r-a-u-c-i is offensive to both me and the Hellenic community in Australia as the Greeks here are, as the Greeks were an unruly nomadic tribe of barbarians the Hellenes were not. 

…The Hellenes on the other hand were ethical, hard working and intelligent thinkers, innovators and philosophers of all type hence my complaint through you, Commissioner, that any reference to the word Greek is offensive to me during this ICAC hearing and thereby, for I point that to the media. 

The proper reference should be Hellenes, Hellas and Hellenic to reflect the spirit of Hellenism which I represent here in Sydney which embraces, extends and includes those Hellenes who have given evidence or will give evidence before Independent Commission Against Corruption if or until a funding is made against them by the Independent Commission Against Corruption which is contrary to the Hellenic spirit.  Then it is a matter for the media to comment as they please.  Thank you, Commissioner.”

THE COMMISSIONER:  Thank you, Mr Kostopoulos.  That is duly noted and the Commission appreciates the fact that you have made that distinction clear for all purposes. 

Full transcript here.

Creative commons acknowledgement for the photograph.

Ross on …?

March 24, 2014

bright idea

During his long practise at the Victorian criminal bar, David Ross QC (who died in 2009) kept a set of notes and a list of cases which he organised alphabetically by topic. He meticulously updated these notes as the law changed and new cases were decided. It was these notes which were eventually published by Thomson Reuters as “Ross on Crime” (now in its 6th edition).

As you would expect most of the topics are relevant to criminal law: “assault”, “bail”, “conspiracy” etc. However, it appears that Ross QC had a few eccentricities (apart from playing didgeridoo and trombone). There is a chapter devoted to “Jazz”, which starts with a quote from the judgment of Moses LJ in R v Francis [2007] 1 WLR 1021: “When a bright idea strikes counsel as moment of epiphany it is useful for the advocate to recall the advice of that illustrious member of the Modern Jazz Quartet. Miles Davis advised: ‘Think of a note. Don’t play it.’

This is followed by an annotation which says that although his Lordship’s point was well made it was technically wrong as Miles Davis was never a member of the Modern Jazz Quartet.

There are other headings which deal with topics such as “It’s music, but is it jazz?”, “Defamation”, “Musicians shot dead”, “Managers”, “Drummers”, “Guitarists”, “They gave up law for music” etc etc. There is also (under the heading “Singers”) the tale of the presbyterian choir master, who persuaded a girl pupil to have sexual intercourse with him on the basis that it was an accepted procedure for improvement of breathing (see R v Williams [1923] 1 KB 340). The choir master was convicted because the girl’s consent was vitiated by fraud as to the nature and quality (??) of the act.

Creative commons acknowledgment for the photograph.

I Did?

February 25, 2014

wedding cake

The Family Court has power to make declarations about the validity of a marriage or divorce or to make such other declarations as are justified. One of the more unusual uses of that power arose after Mr Victor lodged his Notice of Intention to Marry with Births Deaths and Marriages. He (believing it was true) ticked “divorced” as his conjugal status. However, when the celebrant asked for his divorce papers he was unable to produce them. He then contacted the person from whom he believed he was divorced only to be told that they were never married. He then attempted to change his status to “never married” at BDM, but alarm bells were ringing and they wouldn’t have a bar of it.

As a result he had no choice but to make an urgent (so as not to interfere with wedding plans) application to the Family Court (Victor & Melway [2009] FamCA 125) to clarify his status. The answer to the question: “how did it come about that he didn’t know his status?” is apparent from the following paragraphs of the judgment:

  1. According to the applicant, the parties commenced a relationship in or about January 1993 and commenced cohabitation around that time. He states that the parties were in a relationship for ten years, living together at various times during this period, and that they finally separated in or about 2004. He acknowledged, as did Ms Melway, that there was no sexual relationship between them and that they cohabited essentially as friends. They became known to each other through their mothers.
  2. The applicant admits that he suffered from drug dependency during the majority of the relationship, smoking marijuana on a regular basis. The applicant submits that due to his marijuana use, he has no “meaningful recollection” of significant portions of his relationship with Ms Melway.
  3. The applicant says it was his understanding that the parties had married early in their relationship, although he could not recall the ceremony, which he attributed to being under the effects of marijuana.
  4. The applicant submits that the parties had a volatile relationship, and that in 2003, following an argument, the respondent asked him to sign a document. According to the applicant he was under the influence of marijuana at the time of signing this document and presumed it to be for the dissolution of the parties’ marriage and that the parties became divorced at that time….

His Honour found that Mr Victor was mistaken about his status and declared that the relationship between the parties was not a marriage. And that divorce document he thought he signed (para 10)? ….it was a Residential Tenancy Agreement – doh!

Thanks go to Nichole Hoskin from Glenbrook Legal Services for telling me about this blogworthy story.

Creative commons acknowledgement for the photograph.

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