A Barrister's Blog

The lighter side of law


History repeats


Posted on Feb 5, 2019

The parties in Zelino and Ors v. Budai [2001] NSWSC 501 knew they were in trouble, when Justice Palmer (a very fair and patient judge, at least in my view) started his judgment with this anecdote:

In 1725 Mr Everet commenced proceedings in the Court of Exchequer against Mr Williams seeking an account of partnership profits. The plaintiff alleged that the partnership between himself and the defendant dealt in commodities such as plate, rings, watches and other valuables, that the plaintiff and the defendant had dealt successfully in these commodities in the course of the partnership but that the defendant had failed to come to a fair account with the plaintiff concerning the partnership profits. In the course of the trial it was revealed that the business in which the partners were engaged was actually highway robbery and that the plaintiff was aggrieved that the defendant had not handed over a fair share of the spoils. The case was thrown out of Court, both parties were hanged, the plaintiff’s solicitors were attached for contempt and the plaintiff’s counsel was made to pay the costs of the proceedings: see Everet v. Williams (1893) 9 LQR 197; cited in Burrows v. Rhodes [1899] 1 QB 816, at 826 per Grantham J.

Human nature does not change. These proceedings are another example of that obstinate folly which blinds people to the ruin to which their course of action must inevitably lead if they insist upon pursuing it. For at the heart of these proceedings lies a series of revenue frauds perpetrated by the plaintiffs which would never have seen the light of day had the plaintiffs not set their minds on coming to a court of law to vindicate their grievances….

It adds a whole new dimension to “come to equity with clean hands”. Hanged!

Creative commons acknowledgment for the photograph.

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The Application Form


Posted on Dec 20, 2018

Up until yesterday, I thought the most interesting part of Australian visa application forms were the character questions which include things like have you ever been: “charged with, or indicted for: genocide, war crimes, crimes against humanity, torture, slavery, or any other crime that is otherwise of a serious international concern?”; or “associated with an organisation engaged in violence or engaged in acts of violence (including war, insurgency, freedom fighting, terrorism, protest) either overseas or in Australia?”

Then I came across this question (which requires a yes/no answer) on the application form for a spouse visa: “Does the Applicant have any parents, siblings or children including those that are deceased?”….think about it.

Creative commons acknowledgement for the photograph.

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Secret Santa


Posted on Nov 27, 2018

Deck the halls with boughs of holly
‘Tis the reason to be jolly 

It’s not that difficult to imagine how an office Christmas party might get out of hand and many of you will remember last year’s post about Mr Keenan. However, short of truly cringeworthy or inappropriate gifts (sex toys and the like…. does this still happen?), you might expect that the humble Secret Santa between work mates would be in the right spirit and generally be a source of goodwill…. apparently not.

In 2012, there was a secret santa in the office of the Finance Department in Canberra. One worker’s kris kringle gift to his work colleague was a toy reindeer which pooped chocolate. I would have thought that might elicit a smile or two. However, the gift’s recipient (now a former analyst) interpreted it as a commentary on the quality of his work which implied that his economic modelling was “reindeer pooh”. Feeling targeted, humiliated and traumatised at the “soul destroying” prank, the analyst reluctantly accepted a redundancy from his position about 6 months later.

This case received coverage in the press at the time and also prompted a November 2015 directive from the Australian Public Service Commission about work-related end-of-year functions which, the APS reminded its members “are a time for colleagues to come together and celebrate the festive season“. However, public service employees were also encouraged to be mindful of: “buying ‘Secret Santa’ gifts on the assumption that everyone shares the same sense of humour“.

Shout out to Mariette Lewis for finding this story for me. Creative commons acknowledgment for the photograph.

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Package Deal


Posted on Oct 30, 2018

Many people don’t realise that section 262 of the Migration Act creates a “liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons“. What this basically means, is that if you are unfortunate enough to be taken into immigration detention you are going to have to pay for it. It also means that “appropriate arrangements” have to made in respect of outstanding debts, if any future visa applications are to be successful.

From 30 June 2018, the daily maintenance amount is $489.11 per person, for “accomodation” in onshore detention facilities (see Legislative Instrument 18/022: “Determination of Daily Maintenance Amounts for Persons in Detention Instrument 2018”).   That amount is intended to cover:

  • the cost of keeping and maintaining the person in immigration detention
  • the cost of transporting and securing the person between the vessel and to the place of detention, and the cost of transporting the person between detention facilities.
  • if the person is to be removed from Australia at the cost of the Commonwealth, the cost of that removal and the cost of transporting the person who is securing the person being removed. 

According to the website of the 5 star Westin Hotel in Martin Place, the mid-week rate (at the time of writing this post) for a superior room with breakfast was $385/night. That rate of course doesn’t include airport transfers and a one way flight.

Creative commons acknowledgement for the photograph.

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The Judgment


Posted on Sep 28, 2018

I recently read Sir Frank Kitto’s article “Why Write Judgments” which appeared in (1992) 66 ALJ 787. Many of my posts over the years have been about amusing things that Judges have written. However, the anecdote about an after dinner speech urging the High Court to put more colour into its written work really made me smile:

In the dead of night, on All Hallows Eve, on a lonely road illumined  by the wan light of a dying moon and winding serpent-like through the trees that stood as ghostly sentinels soon to become silent witnesses of stark and bloody tragedy …. Therefore this appeal should be dismissed with contempt as well as with costs.”

I actually read the article in the context of an “award” that I have to write for an Arbitration course that I’m doing. Writing like that might not go over too well with the examiners.

Creative commons acknowledgment for the photograph.

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The Rabbit


Posted on Aug 27, 2018

I like gardening. I recently purchased some rhaphiolepsis snow maiden and liriope as 10 cm tube stock for winter planting. Unfortunately my purchase did not go unnoticed by a “pesky wabbit” who decided to treat my new plants as its personal salad bar (some of them are down to about 2cm). Feeling like a hybrid of Elmer Fudd and Mr MacGregor (think Peter Rabbit), I checked out the council website to see if they could assist. There was some interesting information including that:

  1. council have an active rabbit and fox baiting (and shooting) program and apparently, rabbits are not a menu item for foxes (so decreasing fox numbers doesn’t result in increased rabbit numbers);
  2. I could report my rabbit (or fox) sighting on www.feralscan.org.au (or its associated app), which I did (although it wasn’t going to fix my problem);
  3. the Rural Lands Act says that a land owner is responsible for pests on their land. While I had my doubts that the Act applied in suburban Lindfield (and in any event it has been repealed and replaced with the Bio-security Act), the message was clear enough i.e. “don’t call the council”;
  4. rabbits don’t like the smell of blood and bone (they’re not alone) and spreading that around can help. You can also boil up a mixture of garlic and chilli (with a dash of tobasco) to spray on the tasty plants to deter the rabbit; and
  5. there was a warning that the Prevention of Cruelty to Animals Act applies i.e. while council can poison and shoot, residents are limited to stinking them out and are otherwise prohibited from hurting them.

I actually did email the council and eventually received an invitation to undertake a Vertebrate Pesticide Training Course (1080 and Pindone) to allow me to bait on my own property (but I would also need a permit from the Australian Pesticides & Veterinary Medicines Authority because the property is smaller than 1000sqm). I would then have to go to the council depot to pick up the poison carrot. I wasn’t that keen on those ideas. However, council was also offering the option of borrowing a cage trap. I would have to take the trapped rabbit (if any) to a specific local vet hospital so that the $45 euthanasia fee would be paid by the council. Apparently 6 rabbits (making huge impact on local population) have met their end this way. 

The good news is that I haven’t seen the rabbit for a couple of weeks. Either the deterrents worked or its found tastier gardens or ….

Creative commons acknowledgment for the photograph.

 

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