February 25, 2014
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  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:
- 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.
- 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.
- 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.
- 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.
January 29, 2014
While informal will cases are not that uncommon, there appeared to be an outbreak of technology related ones in late 2013. The NSW Supreme Court admitted “will.doc” (found on the deceased’s hard disk) to probate in Yazbec v Yazbec  NSWSC 594. There was also Queensland’s “iWill Case” (Re Yu  QSC 322) which received popular press coverage and was the subject of numerous law firm newsletters as it was the first case where a will created on an iPhone was admitted to probate.
Informal wills are often made in tragic circumstances. Both Re Yu and Yazbec were cases where the deceased killed themselves shortly after creating the informal will. There are also suicide note cases such as Costa and Another v The Public Trustee of NSW  NSWCA 223. In that case the Court of Appeal held that a suicide note in the form of a hand-written poem found in the deceased’s bedroom which was addressed to his mother and father and included the words, “I think I’m dying” and “I want you to have my house” was intended to be a will.
It also appears that some would be testators have difficulty finding a sheet of paper at the right time:
- For example, Mr Slavinskyj decided to write his will in pencil in Ukrainian on a plasterboard wall in his house. He wrote “To all my nieces USSR” and the name and address of one of his nieces. After signing under his writing, he placed an envelope which had the name and address of another niece written upon it in a crack in the wall. This was done in the presence of two witnesses, one of whom also signed the wall (the other, who could not read Ukrainian, didn’t). Mr Slavinskyj was admitted to hospital the next day and did not return home before his death. The writing on the wall and the envelope were admitted to probate (see In the Estate of Pantelej Slavinskyj, deceased (1988) 53 SASR 221);
- Merchant seaman, James Barnes purported to record his will by writing the words “Mag. Everything I possess. JB”, in indelible ink on an empty eggshell (which was discovered on top of a wardrobe in his bedroom after his death). The court wasn’t satisfied of testamentary intent and the eggshell was not admitted – see Hodgson v Barnes (1926) 43 TLR 71;
- Perhaps most tragically of all is the the 1948 Canadian case of Cecil George Harris, a farmer, who was crushed to death in a tractor accident. Before he died, he managed to scratch the words “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” on the tractor under which he was pinned. The scratching was held to be a valid will. In an interesting corollary to this story, after spending decades in the archive of the Courts. the fender from the tractor is now on display in the library at the University of Saskatchewan’s college of law.
If these tales have whet your appetite, you might like to read Robert S. Menchin’s book “Where There’s a Will: A Collection of Wills – Hilarious, Incredible, Bizarre, Witty….Sad“
Creative commons acknowledgement for the photograph.
December 19, 2013
Environmental issues are often the bane of developers. For instance, the watercourse which ran across the bottom of my suburban back yard in Gordon (which I thought of as an open storm water drain) was actually a category 3 riparian zone which caused issues for potential developers. It also seems to cynics (like me) that rare and endangered species, intentionally congregate on development sites. This is one of those stories…
Gales Holdings own a 27ha property near Kingscliff. Over a period of years storm water run off from adjacent properties flowed onto its land. Combine that with poor drainage conditions and what do you get? The answer is an ideal habitat for the endangered Wallum froglet which proceeded to make the site its home. It is not difficult to imagine that the desire to develop the site has led to litigation on many fronts. At least the Court of Appeal managed to start its most recent decision in good humour:
“These appeals are concerned with a colony of frogs. They are not the βάτραχοι of Aristophanes, who inhabit the marshes of the River Styx, encountered by Dionysus on his way to the Kingdom of Hades. Rather, the appeals are concerned with a colony of crinia tinnula, or Wallum froglets, which inhabit ephemeral ponds on land owned by the appellant, Gales Holding Pty Limited (Gales). It is likely that both parties to these proceedings would agree with the response of Dionysus to the croaking (“βρεκεκεκέξ κοάξ κοάξ”) of the βάτραχοι:
That is to say: “May you all utterly perish with your croaking“.
Many thanks to Petar Dobrich of P. Dobrich & Co for bringing this eminently blog worthy case to my attention.
Creative commons acknowledgement for the photograph.
November 25, 2013
I recently read Annie Cossin’s book “The Baby Farmers” (which the publisher sent to me in the hope that I might blog about it – be careful what you wish for!). As well as being the story of John and Sarah Makin, it is also a glimpse into life in Sydney in the late 19th century. The Makins were “baby farmers” which basically meant that for a fee they would “adopt” the babies of unmarried mothers. Unfortunately the economic reality was that the money wasn’t enough to fund ongoing care and the babies were not fed properly, neglected and allowed to die. An opium based “medicine” called “Godfrey’s Cordial” was used to pacify the dying babies (so the neighbours didn’t notice). It was also used in higher doses to achieve a quicker result.
The book brings this unsavoury part of our history to life and made me contemplate that society’s attitude to unmarried mums has only really changed in the past few decades. For me, the following extract from p258 sums it up: ”[Their] crimes were also the crimes of a society that condoned infanticide while, paradoxically, stigmatising unmarried mothers. The legal status of an illegitimate child was described as ‘filius nulls’, child of no-one, which sums up the legal and social reality of those times. Since these children had no legal status, it is hardly surprising they had little or no social value. Life was cheap for illegitimate babies. Baby farmers provided an unsavoury but necessary service that filled the vacuum left wide open by government policies, the market economy and the limited assistance available through charitable organisations.”
So what happened to the Makins? Although the bodies of 13 babies were been found buried in the backyards of various houses where the Makins had lived in late 1892 (and there were undoubtedly more that went undiscovered), they were both (possibly wrongly) convicted of the murder of only one of them: Amber Murray. After their unsuccessful appeal to the Privy Council, John was hanged and Sarah served 18 years. She was released in 1911.
There are a couple of interesting post scripts to this story:
- The Makin case, remained an authority in relation to similar fact/propensity evidence until those terms were replaced with tendency and coincidence in the 1995 Evidence Act. There are still several references to it in “Cross on Evidence”;
- The book’s author (a UNSW academic by day) got to play Sarah Makin in an episode of the TV series “Deadly Women” which showed on the Discovery channel; and
- With the book under my arm, I also engaged in some (Tony ‘Baldrick’ Robinson style) amateur history work and went to Burren Street, Erskineville to see if the infamous house (where 6 of the bodies were found) was still there. Although the number has changed from 25 to 27, it is there and the photograph above matches a sketch that is in the book. I didn’t have the heart to knock on the door to ask the current occupants if they knew they were living on a 120 year old crime scene!
October 26, 2013
Here’s a photo of me (assisted by curry and Kingfisher) on Feroz Shah Kotla which is the current test cricket venue in New Delhi. For those of you that might be thinking you didn’t know I was good at cricket, it’s because I’m not. Notwithstanding my ability, after a rigorous selection process (i.e. payment of a deposit), I was a member of the Australian Lawyers’ Cricket Council team which participated in the 4th Lawyers’ World Cup of Cricket in India from 11-22 October 2013. Australia actually had two teams in the competition and my contribution (to the B team) was to score 2 runs (in 3 matches played), only one of which was off the bat.
The other participants in the tournament included two teams from Sri Lanka and one each from the English Bar, the West Indies, India and Pakistan. It’s probably not a surprise to anyone that the teams with local knowledge dominated the competition. Pakistan defeated India in the final. The final incidentally was televised live on one of India’s two 24/7 cricket channels. One of the round robin matches involving Australia’s A team was also recorded for broadcast. Everyone knows that India is cricket mad, but I am genuinely unsure why anyone (apart from curious passers by….and there were a few of them) would want to watch “lawyer cricket”.
Apart from cricket, there was a day trip to Agra to see the Taj Mahal and also some sightseeing in and around Delhi itself. I was also able, with the assistance of a local advocate, to visit the Indian Supreme Court (their highest court) on what we would call a “special leave day”. There appeared to be hundreds of matters spread over about 20 courts (each with 2 judges sitting). The judges are surrounded by large piles of files and as each matter is dealt with, the file is literally tossed from their book rests onto the table below where the court officers retrieve them. There were also hundreds (possibly thousands) of advocates jostling for position, both in the courts themselves and on the open verandahs of the grand colonial court complex. It felt as if the whole court complex was jammed with black robes (no wigs) and a variety of suits (including white ones), turbans and footwear (including what were effectively “thongs”). There is no such thing as a busy list in Sydney!
September 27, 2013
On 18 December 2008, three Sri Lankans escaped from the Christmas Island detention facility to avoid being put on a plane that was booked for the following day to take them back to Sri Lanka. While, it’s not a crime to arrive in Australia without a visa and seek asylum, it is a crime to escape from mandatory immigration detention. Each of the three pleaded guilty to escaping and were sentenced to three months imprisonment, principally because the Magistrate was keen to deter others from escaping.
On the sentencing appeal (Warnakulasuriya -v- The Queen  WASC 257), Hall J was obviously more sympathetic to them. He ordered their immediate release (from prison that is) and imposed a $100 bond to be of good behaviour for 12 months. Paragraph  of his judgment is instructive:
“This appears to be conduct that was unplanned. The fact that the appellants surrendered themselves readily when located and were hungry and thirsty [the magistrate described it as "hanging around in the jungle"] attests to the lack of planning. They appear to have had no thought as to what they would do after escaping other than to try to locate a church where they would take sanctuary. There was no prospect of them escaping into the broader Australian community given the location of the detention centre on Christmas Island [the closest point on the mainland is Exmouth which is 1500km away]. There was no property damage caused, nor was any officer or member of the public threatened or assaulted. The appellants were at liberty for a very short period of time and did not travel far. They were easily apprehended and cooperated with the police….Each of the appellants acted out of fear that they may be killed if they were returned to Sri Lanka.”
Begs the question: why do we spend a large amounts of public money on security on Christmas Island? I am also reminded of the words of the second verse of Advance Australia Fair: “….For those who’ve come across the seas, We’ve boundless plains to share….”
Creative commons acknowledgment for the photograph.
August 28, 2013
Thankfully, barristers are prohibited from conducting correspondence in their own name on behalf of anyone else (see NSW Barrister’s Rule 17(b)). As a result I can’t poke fun at judicial comments about aggro correspondence by counsel. However, it would appear from Justice Palmer’s comments in Arena Management Pty Ltd (Admin App) (Rec & Mgrs App) & Anor v Campbell Street Theatre Pty Ltd (No 2)  NSWSC 1230 that some of us can’t help ourselves in our written submissions:
“ There is another aspect….which calls for comment. [Barrister 1], in his written submissions, describes [Barrister 2]‘s submission as to failure to plead fraud as “errant nonsence” – presumably meaning “arrant nonsense”. The use of such language by counsel is to be deplored. Robust advocacy, which is commendable, does not license rudeness, which is not. The use by counsel of intemperate language, particularly when there is, in fact, nothing calling for adverse comment, suggests a degree of emotional involvement which counsel have a duty to avoid if they are to discharge their duties to the client and to the Court with proper professionalism…”
For the avoidance of doubt, we all know from dictionary.com that arrant means “downright; thorough; unmitigated; notorious”, while errant means: “deviating from the regular or proper course; erring; straying” or “journeying or traveling, as a medieval knight in quest of adventure; roving adventurously”.
Shout out to Shane Paterson of HWL Ebsworth for telling me about this case.
Creative commons acknowledgment for the photograph.