A Barrister's Blog

I recently read a Thomson Reuters newsletter about the legal risks of the office Xmas party, including virtual ones: “Think team members with Santa hats and reindeer ears eating and drinking together, making small talk (albeit with the occasional two-second awkward delay), swapping gifts, playing games and dancing … all in the comfort of their own homes“…. aaargh!!!

Of course, its much more fun to blog about the people who didn’t heed the risks. In early 2007 Telstra held a combined farewell/belated Xmas party for the employees of one of its stores. Some of the employees hired a hotel room for the night. That might have been a good idea, although its apparent from the judgment of the full bench of the AIRC [2008] AIRCFB 15, that things got a little out of hand:

(14) During the course of the night in the room in Hotel B, Ms XXX was involved in rowdy behaviour, bathed with both the fourth employee and another employee, stood by in the bathroom with a towel around her naked body while the first employee went to the toilet and then, while the first employee was still there, dropped her towel to get back in to bathe with the fourth employee and the other employee, and had sexual intercourse with the fourth employee within the view and/or earshot of the first employee, second employee and third employee.

(15) On 25 February 2007, the first employee rang the then Acting Manager of Telstra’s Miranda store. She was hysterical.  She told him about Ms XXX’s activities in the room at Hotel B. The Acting Manager subsequently spoke to the second employee. She was very quiet. She told him “it was all messed up”. The second employee was scheduled to work at Telstra that day but was not able to do so as she was crying and hyperventilating. He also spoke to the third employee who was equally distressed and disgusted about the activities.

Unbelievably (initially at least), Telstra agreed to reinstate Ms XXX and pay her compensation for her termination of employment. I am unsure what happened but Telstra sought leave to appeal against that decision and the full bench (by majority) found that Ms XXX’s termination was not harsh, unjust or unreasonable.

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My comments in last month’s post were directed at avoiding unnecessary issues relating to first/last day time calculations. After that post I was reminded (another shout out to David Wang of Hyde Park Legal), that the principles of Murphy’s Law (if anything can go wrong it will) apply with full force to looming deadlines.

In Tu v Chang [2017] NSWDC 352 (a Wechat defamation case), the limitation period expired on a Monday and on the Friday prior a commercial agent duly delivered the statement of claim to the registry “bulk box”. Unfortunately, even though the parties were correctly named, several of them were described as “first defendant”. This was enough for the registry staff to reject the filing – a state of affairs that didn’t come to light until Tuesday. As a result the plaintiff had to file a motion to (successfully) seek orders about the date of commencement of proceedings (on the basis that the filing was wrongly rejected).

There are some interesting observations in the judgment including the court’s powers to deal with irregularities and how modern case management has changed practice because: “failure to comply with the provisions of the Act and UCPR is hardly unexpected“. Substance will prevail over form it seems.

If you think the District Court registry were tough, one of the cases referred to was Marson v Network Ten [2016] NSWSC 1245 (another last day filing of a defamation matter – this time in the Supreme Court). In that case filing was rejected because: “…it was fastened with a Tudor owl paper clip instead of a staple and the accompanying documents were put together with a bulldog clip” (in breach of r 4.3 UCPR).

To these examples I can add my own horror story of an application to set aside a statutory demand which required an appearance before a duty judge at 6:30pm (special after hours fees were incurred) on the 21st (i.e. last) day, for the sole purpose of filing documents. The freshly filed documents then needed to be served before midnight (which they were because the solicitors for the defendant had after hours reception facilities).

Although sometimes, “things happen”, the motto of the story remains – don’t mess with limitation periods!

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You might think the phrase “interesting surcharge purchaser duty case” is oxymoronic. However, that’s only because I haven’t told you the story about Mr Gao, who claimed he was entitled to a refund of that duty on the basis that he was no longer a foreign person. For him not to be a foreign person he must have “actually been in Australia during 200 or more days in the 12 months...” prior to the transaction. The parties were in dispute about whether he had been in Australia for 199 or 201 days because, as the Tribunal put it:

“[28] The narrow question here is whether a person sitting in a commercial aircraft cruising at an altitude of several kilometres above either (a) Australian land or (b) Australian territorial sea, is ‘in Australia’ for the purposes of s 5(1)(a) of the [Foreign Acquisitions and Takeovers] Act.”

Argument traversed all sorts of issues under the Migration Act, the Civil Aviation Act, the Chicago Convention, the Acts Interpretation Act and even the Macquarie dictionary. However, very pragmatically the Member ultimately found:

[56] Now, for what it is worth, I agree with Mr Gao’s submission that ‘Australia’, when used in s 5(1)(a), is used in a geographical sense. But how the resultant statutory definition bears on his case is unclear,…. and then….

[59] In my view, ‘actually … in Australia’ captures land-based presence in Australia, and also presumably sea-based (in territorial waters) presence in Australia, but it does not capture presence in Australian airspace. Therefore, if, on a particular day, you are in Australian airspace but you do not land in Australia or set down in Australian territorial waters on that day, then you cannot be said to have been ‘actually in Australia’ on that day. Otherwise, it would be the case that the passengers on a hypothetical flight from Jakarta to Auckland, and flying hypothetically over the Australian land mass, would be ‘actually in Australia’ for all the time the aircraft is in Australian airspace. That does not accord with the ordinary meaning of the words ‘actually … in Australia’ in s 5(1)(a) of the FAT Act.

This case, Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216, pushed some of my more serious buttons about reckoning of statutory time limits. If an Act provides for, and you have calculated a date for the last (or first) day for doing something, allow yourself a few days margin for error. The issue of time miscalculation triggers so many unnecessary jurisdictional problems.  Undoubtedly a couple of nights stay even in a 5 star hotel would have cost Mr Gao substantially less than this case!

Shout out to David Wang of Hyde Park Legal for bringing the case to my attention.

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Although the “risotto mishearing” could be the title of a masterchef themed spy thriller, it was actually the first ground of appeal in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51. The issue was whether the applicant had provided a bogus letter about his work experience as a cook. He was quizzed at length in the tribunal and on appeal the issue became whether the tribunal’s fact finding was “illogical” (one of the limited bases on which fact finding can be a jurisdictional error).

It’s pretty clear from the court’s judgment what went wrong in the tribunal:

69. The primary judge found that the appellant used the word “rizolos” on several occasions and that the Tribunal misunderstood this as a reference to “risotto”…
70. Rissoles were included among the non-exhaustive list of dishes mentioned in the work experience letter, but risotto was not.  The Tribunal’s misunderstanding that the appellant was referring to “risotto” was an important part of the Tribunal’s reasoning for concluding that the work experience letter was not genuine and the appellant was not a credible witness.  The Tribunal’s incredulity on this matter related to the appellant’s evidence that he prepared risotto using rice and flour.  When the Tribunal member repeatedly asked the appellant to say what kind of “risottos” were on the menu, on three separate occasions he said “Italian”.  There was a total breakdown in communication between the appellant and the Tribunal on this subject matter in that the appellant was evidently referring to Italian rissoles, while the Tribunal member was talking about Italian risottos.  The miscommunication was perhaps exacerbated by the repeated reference to the dish being “Italian”.

You can read more about “bangers and mash” and the crumbing of chicken schnitzel in the judgment….and yes this was a jurisdictional error.

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Justice Leeming from the NSW Court of Appeal is a well known and highly regarded equity lawyer and one of the current authors of Meagher, Gummow and Lehane’s equity textbook. His honour also has a PhD in pure maths. When he brings his intellect to bear on matters in the Court of Criminal Appeal there are sometimes some very interesting judgments, of which Ghamrawi v R [2017] NSWCCA 195 is one. Leeming JA traced the development of the common law of “breaking” (as in ‘break and enter’) from the 17th century through to today. I didn’t know (at least until recently) that:

• An actual breaking requires, broadly, that [the accused] interfere with the building’s physical security, in a recognised way;
• Or as Blackstone put it: “There must be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. … if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein, it is no burglary“;
• It follows that: “To enter or depart through an open door or window is not a breaking. To open a closed though unlocked door or window is a breaking. Where a door, window, or other point of entry is partly open it is not a breaking to widen the opening for purposes of entry. However, it is a breaking if to do so involves tampering with some fastening device.”; and
• There is also a species of “constructive breaking” where permission to enter is granted but as a result of some “artifice, trick or threat”. An example is given of the 1952 UK case in which Mr Boyle pretended to be from the BBC and entered the house to “inspect” the radio (the good old days of radio licences).

There are other complicating issues about express or implied consent and the overlap with the law of trespass. If you do like a bit of legal history this case should be near the top of your self isolation reading list.

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What use would a 30 June post be if it wasn’t about tax? Many of us probably remember the deals that were done

between the Commonwealth and the States when the GST was introduced (20 years ago tomorrow). A number of state imposts (remember FID on deposits?) were abolished in exchange for a share of GST revenue.

I had forgotten that the Commonwealth hasn’t always been in charge of income tax. After federation and up until WW2 the states levied income tax at different rates under different administrative regimes and each with under their own legislation. It also created some interesting jurisdictional issues. For instance: was Alfred Deakin’s salary as a minister of the Commonwealth, so far as it was earned in Victoria (where he was resident) subject to Victorian income tax? The High Court applied D’Emden v. Pedder (i.e. a state law can’t interfere with the executive power of the Commonwealth) and answered “no” (see Deakin v Webb (1904) 1 CLR 585).

If that wasn’t bad enough, imagine the negotiations that went on in 1942 when the Commonwealth needed war finance and suggested that the states vacate the income tax field for 2 years and allow the Commonwealth to be the sole income tax collector. Compensation was to be paid. Perhaps not surprisingly, the states were suspicious and rejected the proposal. That was to no avail when the Commonwealth passed four acts which imposed a uniform tax scheme (exercising “might of way”). Constitutional issues over which power was being used as a basis for the scheme (was it the taxation power or the defence power?) arose…. you can read the High Court’s decision in the  First (yes, there was a second one) Uniform Tax Case for yourself (1942) 65 CLR 373.

Who would have thought that tax history could be interesting ….. happy new financial year.

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