A Barrister's Blog

The lighter side of law

The Xmas Party

Posted on Nov 17, 2017

If you work in HR, this post will give you nightmares. If you are an employee and you want to know how to behave at a Xmas party to ensure you don’t have a job to return to next year, you could follow the example of Mr Keenan (a former team leader at the Leighton Boral Amey Joint Venture). Amongst other things make sure you:

  1. have a few beers before you get to the party, and then have another 10 (plus some spirits) between 7pm-11pm;
  2. tell one of the General Managers for Boral (who is also on the Board) to f*ck off;
  3. tell the (female) Executive Team Coordinator that “All those Board members and managers are f*cked, they can all get f*cked and that  [Name] [LBAJV Contract Manager] is a c*nt;
  4. then with no warning whatsoever, suddenly reach forward, hold another [female] employee’s face on both sides with your hands, and kiss her on the mouth;
  5. find another female office mate, speak close to her face, use an aggressive demeanour and several times say: “I want to ask for your number, but I don’t want to be rejected”;
  6. attempt several times to touch the dimple on the chin of a different female employee despite the fact she pulled away each time; and/or…
  7. round off the night by engaging in the following exchange with yet another female employee while you wait for a taxi home:

Mr Keenan: My mission tonight is to find out what colour knickers you have on.

Ms [name]: They are white, touch my skirt and I’ll kill you.

Great response….shame it was necessary. Just to further demonstrate that he really didn’t “get it”, the whole sad and sorry saga is set out in Keenan v Leighton Boral Amey NSW Pty Ltd (yes – that’s right, Keenan sought reinstatement on the basis that his dismissal was harsh, unfair and unjust). Doh!

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Negotiating Technique

Posted on Oct 27, 2017

A few months ago, I went to a seminar about jury issues that was given by Judge Haesler SC of the District Court. One of the topics was the procedure which has to be followed before a judge can accept a majority verdict. Majority verdicts are still controversial and are a departure from the common law position of unanimity which has existed since the 14th century. In times gone by, the trial judge didn’t have power to discharge a jury if they were unable to agree. So what would happen? Apparently:

In England this extended… to putting the jurors, if they were unable to reach agreement, in a cart and driving them to the county boundary following the assize judge on his travels to the next county. There, they were left ‘”without meat or drinke, fire or candle’ until they were starved or frozen into  agreement..?’ Cheatle v The Queen (1993) 177 CLR541 a 551 citing Coke, Institutes, 19th ed (1832), vol 2, 227.b.[e].”

That got me thinking that it sounds like a technique which could have been appropriately utilised in some of the more difficult mediations that I have attended. I don’t think it will take off though.

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The point

Posted on Sep 28, 2017

There is a requirement that a notice of appeal must identify the grounds briefly but specifically. Draftspersons[deliberate attempt at gender neutral political correctness] would do well to keep the following observations in mind:

“It is inherently unlikely that any personal-injuries action would give rise to 14 issues or that any intermediate appellate court in this country would make so many errors. Australian, as well as United States, counsel would be well advised to heed Judge Aldisert’s statement [referring to  Aldisert, Opinion Writing, (1990) at 8] that when he sees ‘an appellant’s brief containing seven to ten points or more, a presumption arises that there is no merit to any of them'”(per McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 at [70]);

or the even worse version…

“Where an Equity Division judge experienced in the field to which the litigation relates delivers a long, detailed and careful judgment which attracts so much hostile fire from so many quarters, it may be inferred that it is probably correct in every respect” (per Heydon JA in Cadwallader v Bajco Pty Ltd & Ors  [2002] NSWCA 328 at [27]).

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Coat of Arms

Posted on Aug 25, 2017

I’m not sure if anyone else has been watching Annabell Crabb’s documentary “The House“. I was surprised to learn that a number of designs for the large coat of arms above Parliament House were rejected because the kangaroo wasn’t “demonstrably male”. I set a couple of bemused law students loose on trying to verify this, but to no avail. I did, however, find some interesting facts about the coat of arms.

We all know that the kangaroo and emu were chosen for the coat of arms because neither can move backwards.  Another factor was that they were both large enough to be positioned in scale. I also discovered an interesting parliamentary debate about changing the original 1908 version of the coat of arms (pictured) to the version which we now know and which was adopted in late 1912.  House of Representatives hansard on 31 October 1912 records the following:

Fenton: Let us have a decent Australian coat-of-arms on our writing paper. The kangaroo depicted is most un- lifelike, and, as for the poor, unfortunate emu, with its leg tucked up against the Australian shield …
Atkinson: Could an emu stick up its leg in that way?
Fenton: I do not know; but I know that an emu can kick out well behind, and pretty well as hard as a horse can.
Kelly: The habits of heraldic animals however, are not altogether founded on established fact, and it is not the fault of the College of Heralds that the emu in this case is asked to do something which would in ordinary circumstances horrify it. It seems to me that the emu and the kangaroo are hardly symbolic of the best qualities of the Australian people. They have the smallest heads of any of the animal kingdom. Is that a mark of the Australian people?.….The emu and the kangaroo are so built that they hardly fit into the heraldic atmosphere, and I think we make ourselves ridiculous when we endeavour to carry on the traditions of the Old World with some of the wild creations of our Australian fauna.

Hmmm, the good old world!

If you want to read more of this debate it is on the APH website.

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The Straw Man

Posted on Jul 26, 2017

Leonard Casley (aka Prince Leonard of Hutt) was a wheat farmer.  In 1970 he was aggrieved by the wheat quotas allocated to his business.  He served a notice of secession on the Western Australian Premier, the Governor, the Prime Minister and the Governor General.  He also notified the Queen.  Since then he has taken other steps which he believes are the acts of an independent sovereign state (referred to by Wikipedia as a “micro-nation”) including declaring war on Australia. The Hutt River Province has its own passports and currency (probably one of the problems).

Since then Prince Leonard (and his son) have accumulated tax debts of over $3M. There were a number of interesting arguments advanced in the WA Supreme Court in defence of the ATO’s recovery action [2017] WASC 161:

  1. Firstly that the court has no jurisdiction over them or no jurisdiction to hear these claims.  In essence, they say that the land on which they reside is part of the Principality of Hutt River which seceded from Australia and is no longer part of Australia, that they are the sovereign or a citizen of Hutt River, a sovereign independent state, they are not residents of Australia, the laws of Australia and in particular the taxation laws do not apply to them and this court has no jurisdiction over them; and
  2. Secondly, the strange pseudo‑legal straw man theory.  The theory holds that an individual has two personas, one of himself as a real flesh and blood human being and the other, a separate legal personality who is the straw man.  The idea is that an individual’s debts, liabilities, taxes and legal responsibilities belong to the straw man rather than the physical individual who incurred those obligations, conveniently allowing one to escape their debts and responsibilities.  [if only it were that easy!]

The first argument failed in 2007 when the Prince tried to remove proceedings (also involving payment of tax) from the Geraldton Magistrate’s Court to the High Court (Heydon J said the argument was “fatuous, frivolous and vexatious”). The second didn’t fare much better with Justice Le Miere saying it was “all gobbledygook”.

Shout out to Alan Blank of my chambers for telling me about this decision.

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Complete Freedom

Posted on Jun 26, 2017

On 1 December 2016, Luke Moore’s appeal against his conviction for dishonestly obtaining a financial advantage by deception was allowed by the Court of Criminal Appeal. Aspects of Leeming JA’s leading judgment (yes, they let equity lawyers sit in criminal appeals) are mildly amusing:

  1. Mr Moore opened (with a zero initial balance) an account with St George Bank at a branch in Goulburn on 11 March 2010. “The account was styled, not inaptly, a “Complete Freedom” account“(at [4]);
  2. The account quickly ran into overdraft and kept going. When it was closed in August 2012 there was a negative balance of $2.1M;
  3. A police raid on Mr Moore’s home in December 2012, recovered inter alia signed pictures by Led Zeppelin, Bob Dylan, Guns N’ Roses, Foo Fighters and Usher, an Amy Whitehouse frisbee and the keys to an Aston Martin DB7 Vantage coupe. There was also a 2001 Maserati sedan, a 2006 Alfa Romeo 156 and a 6.1m boat. The list goes on (see [13]-[16]);
  4. His Honour observed (at [17]) that “It is perfectly plain that there was a mistake of some kind within the Bank. As a matter of civil law, a mistaken payment gives rise to a right to recovery. To be quite clear about it, the notion sourced in board games of a windfall “Bank error in your favour” is a very poor guide to the position at law. It has been the law for centuries that a party making a payment by mistake is entitled, subject to defences, to recover that payment.”; and
  5. Also that: “It is plain that Mr Moore behaved not only extremely foolishly but also dishonestly” (at [19]).

BUT  “…an element of the offence with which Mr Moore was charged is deception. The unusual aspect of Mr Moore’s conduct was that there was nothing covert about it. The statements issued by St George recorded each debit, and charged a fee and interest, and stated with complete accuracy Mr Moore’s growing indebtedness” (at [23]).

So, there you go, there was no deceit. …I doubt he’ll go very well in the inevitable civil proceedings.

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