A Barrister's Blog

The lighter side of law


F-unconscionable?


Posted on Jul 25, 2018

This is the third post in 4 months with an “f-word” theme. In part it demonstrates that we have moved on from obscene language in Adelaide in 1979. It is also topical with the Banking Royal Commission in full swing. The use of the “f-word” was one of the matters that led to Beach J finding that Westpac had engaged in unconscionable conduct in his 2539 paragraph judgment in ASIC v Westpac (No 2) [2018] FCA 751.

It was the following recorded comment by the bank’s head of global treasury that caught ASIC’s attention [at 996]: “I knew it was completely wrong but I thought f*** it, I may as well f*** it.  We’ve got so much money on it, we just had to do it, right.  Just had to be done.”

His Honour did (at [937]):

“….say something concerning the vernacular of the traders. And it concerns the use of the “f***” word and its various derivatives. There is little doubt that linguistic Darwinism has favoured the English language. And part of its natural advantage springs not only from its capacity to either create vocabulary or unashamedly appropriate it from elsewhere, but its subsequent diverse and rich deployment. The “f***” word and its use by the traders in the present context is a classic example. It has been used as both a transitive and intransitive verb. It has been used in an active sense and a passive sense. It has been used in the past tense and the future tense. It has been used as an adjective. It has been used as a noun including as a verbal noun. Someone even tried to use it as an adverb. Occasionally it has been deployed not in any context that a formal grammarian would encourage, but simply to reflect an emotional response. Sometimes disappointment or exasperation, sometimes pleasant surprise or even admiration. Sometimes criticism, sometimes positive reinforcement. Even more occasionally, it has been used to indelicately communicate the thought that caution was being thrown to the wind. Clearly, the “f***” word and its derivatives are not terms of art in the finance industry. Nevertheless, their use in otherwise polite conversation appears to have been well understood by the colourful interlocutors.”

There were submissions on what the global treasury head had meant by his comments. His Honour found:

(at [1007]): “….But I am more inclined to the view that he was acknowledging that he was doing something wrong.”;

(at [1010]): “It is contended that his use in this sentence, twice, of “f*** it” was not as an active verb but rather as a statement that he had “no option” but to hedge his exposure to the RBA decision by reducing his risk position. That is, he was saying that he thought he may as well hedge the risk position given its size and the uncertainty of the RBA decision and the words “f*** it” were exclamations reflecting his thought process – as in “to hell with it” or “I may as well take the chance”. Now Westpac accepts that there is no discernible pause between “I may as well” and the second “f*** it”, but it says that grammatically a pause is not necessarily required and, in any event, both Mr XXX and Ms YYY were speaking so rapidly and informally and so much over the top of each other that the absence of one is unremarkable.”; and

(at [1012]) “I disagree with Westpac’s analysis. True it is that Mr XXX’s use of the “f***” word and its derivatives was rich and diverse. He had a sense for every occasion. But it seems to me that on balance the f*** word was being used here with its classic active transitivity.”

So, what does all that mean? That there was unconscionable conduct (obviously, I think).

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Dark Look


Posted on Jun 25, 2018

The headnote of Hargraves v Eveston [2018] NSWSC 505 says it all.  It was, according to Hamill J, “unpleasant litigation” where Mrs Hargraves sued her daughter for $1.7M. The warring parties were the only witnesses and “neither presented as a witness of particular credit“. His Honour made the following observations at:

  1. Meanwhile, and sadly, these financial shenanigans have taken their toll on the personal relationships within the family. ….and it is now apparent that the relationship between mother and daughter has been badly damaged. When the parties gave their evidence, people in the back and side of the courtroom, who I take to be other members of the family, made their feelings clear by their visceral and ostensible reactions. There were dark looks across the public gallery. There was scoffing, tsk-tsking, and rolling of eyes. None of this matters very much, at least from a legal perspective, although the palpable, personal hostility between the parties impacted on their credibility and made their demeanour difficult to assess.

Some mothers do have them!

Shout out to Elleni Zacharia for telling me about this case. Elleni works as a part time paralegal in my chambers. If anyone’s looking for a bright and personable graduate lawyer for next year, I’d be happy to give her a reference.

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Indecent Language


Posted on May 25, 2018

In January 1972, Kim Dalton was sentenced to 28 days imprisonment for using indecent language. He had apparently used the three words “f**k”, “f**ked” and “c**t” in Elder Park (an inner city Adelaide park on the banks of the Torrens). Well, it was 1972 and it was in Adelaide.

There was an appeal against sentence (see Dalton v Bartlett (1972) 3 SASR 549).

Hogarth J (at 556-557) seems to engage in some grammatical gymnastics to avoid putting the words into his judgment:

The words may be used simply to denote a feeling of hostility by the speaker to the hearer, or to fate in general, or to convey an emotion of anger or irritation. In many cases, they are completely neutral and devoid of meaning or emotional content. In some circles it seems to be a usage almost de rigueur in private conversation for the present participle of the verb in question to precede most nouns, even on so prosaic occasion as a request to pass the butter. This usage presumably arose from a desire to impress on the hearer the virility and masculinity of the speaker. But there is a continuous process by which language, like money, loses its value; and in this usage the word has lost all meaning. It may be full of sound and fury, but it signifies nothing.

….and….

In my personal experience (which involves hearing all three words used probably many thousands of times in the course of a period of some six years in the army during World War II) the words as most commonly used are almost always used in a sense which is not indecent. They may properly be characterised as either uncouth or offensive; I personally find them so on most occasions, particularly when used in public or in the presence of women. But in this case the appel­lant was not charged with the use of offensive language; and it is no offence to be uncouth. In any case, what is uncouth is merely a matter of personal opinion; and to establish that the words are offensive evidence of context and circumstance is necessary, just as in the case of alleged indecent use.

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The Mention


Posted on Apr 24, 2018

Apparently true  story (relayed to me by a reliable source) of a recent mention which occurred in Court 5.2 at the Downing Centre Local Court:

Solicitor:     “May I mention the matter of Fu?”

Magistrate: “How do I spell that”

Solicitor:       “F U your Honour”

….court erupts in laughter.

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Habeas Corpus


Posted on Mar 27, 2018

In April 2017, Justice Lucy McCallum had to deal with an urgent out of hours application for the issue of a writ of habeas corpus. The petitioner apparently stubbornly refused/ignored her Honour’s “hints” that a bail application would be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.

Nevertheless her Honour dealt with a number of arguments, including:

[9] First, it was suggested that the applicant was arrested for conduct which is incapable of amounting to an offence. The petitioner explained that the applicant was charged after being found in possession of cannabis. The petitioner contended that all plants were given to man by God, citing Genesis 1:29 of the King James Version Bible 1611, which states:

And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.

[10] The point might have been made in response to the petitioner’s submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes. In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act 1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.

….

[25] Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).

Being a Judge must be exasperating at times. It’s difficult to help people who can’t help themselves.

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The Third Time


Posted on Feb 23, 2018

On Australia Day, Radio National’s Law Report replayed an episode about the birth and development of our legal system. How did our democracy and strong independent legal system evolve from a bunch of desperate convicts and their jailers? This post was inspired by one of the stories in that program.

Conditions were harsh in 1788 and early trials were conducted by the Judge-Advocate and six officers (a majority of 5 out of the 7 was required for a capital offence). The first Judge Advocate (the key position in the criminal “justice” system)  was Captain David Collins who exercised both prosecutorial and judicial functions without proper independence.  Despite the conflict, history apparently shows he generally did his best to act fairly and lawfully.

It only took about a month from the arrival of the first fleet before the first execution occurred. Thomas Barrett and three others were convicted of “feloniously and fraudulently taking away from the public store beef and pease, the property of the crown.” It’s not hard to see why half starved convicts might steal food and also not difficult to see why a raid on the stores was taken very seriously by the authorities.

There is an interesting back story to Barrett. This was in fact the third time he had been sentenced to death (did he have learning difficulties?). In 1782 his death sentence for stealing a silver watch was commuted to transportation. He was then held on a convict hulk awaiting transportation and was one of several prisoners who led a “rebellion”. His second death sentence for his part in that episode was also reprieved and he ended up in the first fleet in Australia in 1788. However, his luck ran out on 27 February 1788 when he was tried, convicted and the “court” ordered his execution to be carried out before sunset on that day. He was hanged from a tree near the corner of what is now Essex and Harrington Streets in Sydney (where I took the photograph of the plaque).

What happened to the three others? The youngest was bullied (at gunpoint apparently) into being the hangman and was pardoned for accepting the role as common executioner. The other two were given a 24 hour reprieve before being led back to the hanging tree the next day. They were then also spared death by order of the Governor (but undoubtedly needed clean underwear). They were then “banished to some uninhabited place”!!

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