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Nenna (a pseudonym) v The Queen [2021] VSCA 183 (24 June 2021)

Applicant was convicted of sexual offending against child.  The Applicant, seeking leave to appeal against conviction and sentence, alleges that the judge made comments which gave rise to a substantial miscarriage of justice. 

Facts:

On 25 July 2019,  the applicant was found guilty of one charge of committing an indecent act with or in the presence of a child under 16 (charge 1) and three charges of incest (charges 2, 3 and 4).  On 13 September 2019, the applicant was sentenced to a total effective sentence of 18 years, with a non-parole period of 14 years.  The applicant, alleging substantial miscarriage of justice, seeks leave to appeal against conviction and sentence. 

The complainant is the applicant’s daughter.  When the complainant was about nine, and after a woman with whom the applicant had been living moved out, the applicant began to indecently touch and then sexually penetrate the complainant.  The applicant and the complainant lived with the applicant’s then partner, Linda Sefu in Australia in March 2008, when the complainant was 15.  The complainant told Ms Sefu that the applicant had been having sex with her since she was a child, and that he was responsible for pregnancy. The applicant arranged for the complainant to have the pregnancy terminated.  After the termination, the applicant discovered that the complainant had told Ms Sefu that he had been sexually abusing her.  This went on until 2012 when the applicant told the complainant to leave home. The complainant made a statement to the police detailing the abuse. 

In the course of the cross-examination, it was repeatedly put to the complainant that she was lying.  Defence counsel identified a number of examples of what he submitted were lies told by the complainant.  For instance, the complainant's statement in the fertility control clinic notes that the complainant had given a history of ‘losing her mum.'  In the course of summarising the evidence given at trial, the judge identified a topic which she described as ‘the evidence of the disclosures made by [the complainant] over the years that her father had been sexually abusing her’. 

Issue:

Whether or not the Judge's comments gave rise to substantial miscarriage of justice.

Applicable law:

McKell v The Queen [2019] HCA 5(2019) 264 CLR 307 - provides for the ‘right’ of a trial judge to comment on disputed questions of fact.

Jury Directions Act 2015ss 52 and 53 - provides that a victim of sexual assault may delay or hesitate in complaining about such an offence due to ignorance about the nature, quality and character of the act performed; feelings of powerlessness; fear of family dissolution or punishment for the offender; having been sworn to secrecy, or feeling compelled to secrecy by threats of harm to themselves or to other people; having feelings of responsibility, guilt or blame for the acts that occurred; having feelings of shame or embarrassment; having a fear of bringing disgrace to the family; and having a fear of not being believed. 

Analysis:

The defence case at trial was that the complainant was a liar, motivated by her hatred for her father.  The Honour's reference to the complainant's trigger and her remark that the jury ‘might think’ the complainant courageous for having made her disclosures, is claimed by the applicant to have conveyed emotive language to the jury.  Such language of an advocate which was specifically disparaged by the High Court. 

However, the cases decided before the High Court’s decision in McKell involve charges that were subject to different statutory regimes from the one given in the present case.

Conclusion:

The Court concluded that the her Honour’s use of the terms ‘disclose’ and ‘disclosure’ did not amount to a substantial miscarriage of justice.  However, they added to the unfairness which we have already found was created by her comment that the lack of eyewitnesses was not particularly remarkable or unusual in this case.  Usage of ‘disclose’ and ‘disclosure’ is discouraged in future cases.

The Court granted the applicant's leave to appeal, allowing the appeal, setting aside the convictions and sentences imposed, and ordering a retrial.  The application for leave to appeal against sentence was held to be not necessary to be dealt with. 

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Tobin (a pseudonym) v The Queen [2021] VSCA 180 (23 June 2021)

The applicant was charged with sexual assault of a child under 16 and sexual penetration of a child under 12.  The applicant filed a leave to appeal against sentence alleging that the principles in Verdins applied.  The Court, in adjudicating the case, tackled the applicant's moderate personality disorder and whether the sentence was excessive. 

Facts:

The applicant pleaded guilty to one charge of sexual assault of a child under the age of 16 years, and to one charge of sexual penetration of a child under the age of 12 years.  He was sentenced, on 18 October 2019, to a total effective sentence of nine years’ imprisonment with a non-parole period of five years and six months.  The applicant seeks leave to appeal against sentence alleging that the judge erred in concluding that the Verdins principles did not apply to the applicant, misapplying the decision in DPP v O’Neill [2015] VSC 25  which was now overruled by Daylia Brown v The Queen [2020] VSCA 212

The applicant has also made application for an extension of time within which to seek leave to appeal against sentence.  On 7 November, counsel acting for the applicant gave advice in writing that the sentence should be appealed, and counsel on the same date emailed Mr Paull to inquire whether the reasons had been received from the judge.  There was then a considerable delay by Mr Paull in initiating the appeal. 

Issues:

Whether judge erred in concluding that principles in Verdins did not apply.

Whether sentence manifestly excessive.

Applicable law:

Criminal Procedure Act 2009  ss 275 and 279 - prescribes the time to apply for leave to appeal. 

R v Verdins [2007] VSCA 102(2007) 16 VR 269 - provides that psychological disorder was a mitigating factor.

O’Neill v The Queen (2015) 47 VR 369 - provides that ordinarily, personality disorders do not qualify for the application of Verdins principles.

Analysis:

The central consideration that apply to an application for an extension of time is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time.  In the case, the delay in initiating the appeal cannot be attributed to the applicant since it was Mr Paull who was tasked to do so. 

Dr Dion Gee, a forensic psychologist, noted that the applicant’s formative years had been affected by a significant degree of social and emotional disruption and disadvantage, and his transition into early adulthood was lacking adaptive and pro-social experiences.  Dr Gee considered that, taking into account the applicant’s age and impaired mental functioning, imprisonment would not weigh more heavily on him than on a person in normal mental health. While youth should be considered in the gravity of the offence, youth and rehabilitation must yield to the sentencing purposes of general deterrence, denunciation and protection of the community.

Conclusion:

The Court concluded that the leave should not be granted because the grounds of appeal relied on by the applicant was not sufficiently argued.  As to the extension of time, since the delay is not his fault, the Court ordered that the applicant be granted an extension of time within which to bring the application for leave to appeal against sentence.

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Priority Lending Australia Pty Ltd v Martinsville Pty Ltd (No 2) [2021] NSWSC 850 (14 July 2021)

Plaintiffs filed a claim for liquidation and possession.  Borrower and guarantors sought that the judgments be set aside.  The Court, in deciding the application to set aside, determined whether or not there exists a triable issue. 

Facts:

The borrower mortgaged the secured property to the first mortgagee in order to obtain a loan.  As the borrower did not have the income to repay the loan, the guarantors made the repayments.  Between July 2018 and September 2018, the first mortgagee issued default notices to the borrower.  On 20 January 2019, Mr Murray, the guarantors’ son and a finance broker at Lumley Finance & Loans Pty Ltd, sent an email to Justin Hatfield, also of Lumley Finance & Loans Pty Ltd, proposing that the borrower refinance its loan from the first mortgagee, under which $500,000 was said to be owing.  A loan term of 12 months with an option to extend for a further six months was proposed with interest to be capitalised.   The sale of a completed development of residential units in Bonnyrigg is the exit strategy.

On 27 July 2020, the lender and the receiver or collectively, the plaintiffs, commenced proceedings against the borrower, the guarantors, and the first mortgagee for recovery of monies said to be owed to it by the borrower and the guarantors, and possession of a property in Martinsville (the secured property).  On 4 September 2020, the plaintiffs filed a notice of motion for default judgment on the liquidated claim.   On 30 September 2020, the plaintiffs filed a motion for default judgment on the claim for possession, which was ordered on 1 October 2020.  On 7 October 2020, the plaintiffs sought leave to issue a writ of possession which was granted on 8 October 2020, at which time a writ was issued.  The borrower and the guarantors filed an amended notice of motion seeking that the judgment for possession of the secured property and the judgment for the liquidated claim be set aside.

Issues:

Whether there is a triable issue on the merits. 

Whether or not the interest rate provision qualifies as a penalty.

Applicable law:

Australian Consumer Law, ss 237, 243 - provides for what qualifies as terms that are unconscionable at general law. 

Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA12CB -
provides for what qualifies as terms that are unconscionable at general law. 

Civil Procedure Act 2005 (NSW) -
provides for just determination of the proceedings and their timely disposal as considerations within the discretion of the court.

Contracts Review Act 1980 (NSW) -
provides for the terms and surrounding circumstances which make for an unjust loan. 

Uniform Civil Procedure Rules 2005 (NSW), rr 14.3, 34.16 - 
provides for the Court's inherent jurisdiction to set aside default judgment. 

Kellas-Sharpe v PSAL Ltd [2013] 2 Qd R 233[2012] QCA 371 - held that a contract which provided for an interest rate which would apply except where a discounted interest rate applied as a reward for timely performance did not amount to a penalty.

Analysis:

The construction of the Second Loan agreement was alleged by Mr Afshar to be so unclear because the terms  “Interest Rate” and the “Specified Rate” were not referred to at all in Item 4 of Schedule 1.  Mr Afshar submitted that the Second Loan was unconscionable under the general law, the Australian Consumer Law (ss 237 and 243) or under the ASIC Act (ss 12CA and 12CB) and therefore was void or could be varied or set aside by the Court.  Fourthly, in respect of the guarantors, he submitted that the Second Loan was unjust within the meaning of the Contracts Review Act.   

Where a defence under the Contracts Review Act is pleaded, summary judgment cannot generally be ordered since there will almost inevitably be triable issues of fact. 

Due to the drafting discrepancies, the present case is not a clear case of a clause which would fall into the same category as the one held as valid in Kellas-Sharpe.  As such, the interest rate provision amounts to a penalty.  Mr Pokoney argued that, in order to make commercial sense of the Second Loan, it was necessary to construe “Interest Rate” as being equivalent to “discounted rate” and “Specified Rate” as being equivalent to “interest at normal rate” and that, if the agreement was construed in that way, there was no ambiguity.  

Conclusion:

The Court found that the defences raise triable issues. The Court ordered to set aside default judgment entered on 7 September 2020 in the sum of $1,011,200.42 as well as the default judgment for possession entered on 1 October 2020 in respect of the property known as [REDACTED], Martinsville NSW 2265. 

The parties are directed to provide to my Associate, within seven days, a minute of order in respect of other judgments affected by these reasons.  Leave is granted to the first, second and third defendants to file a defence in the form of annexure “A” to the affidavit of the second defendant sworn 28 June 2021, such defence to be filed within seven days.  The first, second and third defendants are ordered to pay the plaintiffs’ costs of the notice of motion.

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Kurzyp v Kurzyp [2021] NSWSC 851 (15 July 2021)

The wife sought from former husband one-half interest in Liverpool townhouse against husband as well as an account of her share of rental income earned on the Liverpool property and appointment of statutory trustees for sale of the property.

Husband opposes wife asserting that the property was purchased by him alone. The Court, in deciding relief, tackles issues of laches and estoppel.

Facts:

In 1983, the parties made arrangements to bring foreign currency to Australia. The parties purchased their family home in 1987. The couple separated in September 1998, reconciled in 2000 and separated again in about 2002. 

The wife seeks a declaration that the husband holds the legal estate in a Liverpool townhouse on trust for the wife in proportion to her contributions to the consideration paid for the property.

The wife seeks a declaration of one-half interest despite claiming that she contributed more than half the purchase price.

She further seeks an account of her share of rental income earned on the Liverpool property and appointment of statutory trustees for sale of the property.

The husband conversely contends that the Liverpool property was purchased with his monies alone. He asserts that the wife's claim is a matrimonial cause and as such, should be determined by the Family Court. The wife is also said to be Anshun estopped and the proceedings to be an abuse of process given earlier family law proceedings in Australia in 2006 and more recent legal proceedings in Poland. The father claims that relief should be refused because of the wife's unwarrantable delay.

Issue:

Whether or not the defense of laches was established. 

Whether or not the wife is estopped.

Whether or not the proceedings are an abuse of process given earlier family law proceedings in Australia in 2006 and more recent legal proceedings in Poland.

Applicable law:

Family Law Act 1975 (Cth) ss 4447879 - provides for the definition of a matrimonial cause and that leave is not required to commence proceedings. 

Freedom of Information Act 1982 (Cth) -
allows for the request of documents from the Department of Immigration.

Analysis:

In determining whether the doctrine of laches applies, account is taken of the length of any delay, the nature of acts done during the period of that delay, whether the plaintiff had sufficient knowledge to justify the commencement of proceedings, whether there has been prejudice to the defendant or others and the nature of the relief claimed.

Since the husband did not give any evidence that he had acted, to his detriment, on the assumption that the wife no longer pressed such a claim, there is no evidence of unconscionable prejudice caused by the delay. 

Earlier proceedings were brought to completion against the background of a communicated likelihood of later proceedings being commenced. The wife did not prosecute the family law proceedings to a conclusion by final judgment or settlement but discontinued the proceedings. 

Conclusion: 

The defence of laches not established. The Court found that there was no estoppel nor abuse of process. Parties are ordered to bring in Short Minutes of Order, recording declaration of resulting trust, an account for rent, statutory sale and costs, within 14 days.

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Khmer Buddhist Temple Association Inc & Ors v Chhet & Ors (No 2) [2021] VSC 418 (14 July 2021)

The Association, incorporated for religious purposes, issued complaints against the Abbot due to violations of certain Buddhist rules.  An application for injunction was filed against the Abbot.  The Court, in deciding whether or not the grant such application, considered principles such as balance of convenience and the least risk of injustice. 

Facts:

Khmer Buddhist Temple Association Inc (‘Association’) owns the premises at 99 Alexander Avenue Thomastown (‘premises’), where it conducts prayer meetings and community functions at the premises is known as the Eysanmeanchey Temple (‘temple’). 

In March 2020, the Committee began to receive complaints about the conduct of Mr Hout Chhet (‘Abbot’ ora Buddhist monk who resides at the premises) of the temple) such as having sexual relations with a woman, purchasing property, possession of cash without the authority of the Committee, taking donations from the Association, and etc. 

The Plaintiffs, in seeking an injunction to restrain the first defendant, Abbot, from acting as the Abbot, submitted that the balance of convenience favoured the grant of injunctions. 

They also seek to restrain the defendants from representing that they are office bearers of the Association and etc. 

In the 3 February 2021 hearing, the Court restrained the third to fifth defendants until further order from acting as the committee of the Association or from permitting or causing any instrument or document to be lodged with the ACNC or Consumer Affairs seeking changes in the registration or recording of office bearers of the Association.  Efforts towards judicial mediation were unsuccessful.

The Abbot provided affidavits denying the allegations against him. It was further alleged that the Abbot has engaged in numerous activities without the Committee’s approval, including using temple funds for personal expenses, purchasing a house, making payments to the Cambodian-Australian Buddhist Temple Association, purchasing lottery tickets, airline tickets and hotel accommodation, and making payments to the Department of Immigration. 

While denying wrongdoing, the Abbot has not responded in any detail to the allegations in the plaintiffs’ affidavits and supporting exhibits concerning his conduct, including the numerous cash deposits paid into his bank accounts over a significant period of time.

Issues:

Whether or not the injunction sought by the plaintiff should be granted.

Whether the grant of injunction offers the least risk of injustice. 

Applicable law:

Associations Incorporation Reform Act 2012 (Vic) ss 1(b)33(1), 34466783(2), 8485 - provides the purposes, legal capacity, membership, and means for enforcing court orders regarding associations. 

Model Rules for Incorporated Associations rr 42, 45(2)–45(5) - governs incorporated associations along with the Associations Incorporation Reform Act 2012.

Analysis:

The Court is tasked to uphold the governance and functioning of the Association, and to protect its property from theft, misuse or dissipation.  It is not concerned with determining whether the Abbot is a fit and proper person to be a monk – that is a decision for the Sangha or proper religious authority. 

The fundamental problem is the loss of confidence, respect and trust for the Abbot by a sizeable part, if not the majority, of the temple community.  They no longer accept that he has any religious or moral authority. They do not hold him in good standing.  The balance of convenience favours a return to the usual and orderly conduct of worship and prayers in the temple in accordance with the Theravada Buddhist tradition as soon as possible.

Conclusion:

The grant of the proposed interlocutory injunctions offers the least risk of injustice pending the determination of this proceeding.  The Court granted interlocutory injunctions operative until the trial of this proceeding or further order restraining the first defendant from acting as the Abbot of the temple or from residing or remaining at the premises after 12 August 2021.  The first defendant is given time to relocate.  The injunctions previously granted against the third to fifth defendants will be extended until the trial of the proceeding or further order.

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THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA -v- CORRUPTION AND CRIME COMMISSION [No 2] [2021] WASC 223 (13 July 2021)

The Corruption and Crime Commission was conducting an investigation within the Parliament.  The Plaintiff brought an action asserting that the documents sought by the CCC were covered by parliamentary privilege. 

Facts:

Plaintiff Catherin Esther Doust brought an action for and on behalf of the Legislative Council, by resolutions of the Legislative Council on 5 and 25 September 2019.  The first defendant is the Corruption and Crime Commission (CCC), the second is Darren Foster or the Director General, and third Nigel Pratt was the person occupying the office of the Clerk of the Legislative Council (the Clerk).

The CCC served three notices on the Director General dated 12 April 2019 (First Notice), 11 June 2019 (Second Notice) and 6 August 2019 (Third Notice) to produce the emails of specified former members of Parliament in connection with an inquiry into their conduct.  The emails were held by a government department.  The relevant parliamentary presiding officer, the President of the Legislative Council, and the CCC were unable to agree on a procedure for the determination of privilege in respect of the emails.  The government department established its own procedure as per advice of the State Solicitor's Office who produced the remaining emails to the CCC.  The Legislative Council did not accept that this determination was proper and authorised the President to commence proceedings to challenge the validity of the notices and the lawfulness of the receipt of the emails.

Issues:

I. Whether production of some of the emails would be contrary to parliamentary privilege. 

II. Whether parliamentary privilege extends to documents of the type sought. 

III. Whether the notices to produce the documents were a valid exercise of the statutory power in question. 

IV. Whether the determination of which documents were subject to privilege was one exclusively for the Parliament to make. 

Applicable law:

Corruption, Crime and Misconduct Act 2003 (WA), s 3 - provides that the powers of the CCC are subject to parliamentary privilege and cannot be exercised if, or to the extent that, the exercise would relate to a matter determinable by a House of Parliament.

Parliamentary Privileges Act 1891 (WA), s 1(b)s 5s 8,s 16 - 
protects the proceedings of Parliament from being questioned or impeached in any court or other place. 

Analysis:

Parliamentary privilege imposes a limitation on any exercise of power, but only to the extent that that exercise would impinge upon parliamentary privilege.  Whether documents have the necessary connection to proceedings will depend on the circumstances of their creation and use.  It is not enough that documents merely relate to proceedings.  The connection must be such that use of the documents could potentially involve questioning or impeachment of the proceedings of Parliament.  It is only where disclosure of documents necessarily involves questioning or impeachment of proceedings that the privilege will protect from production.  It is reasonable to infer that those documents could, therefore, be used to determine whether findings of an adverse nature should be made against former members of Parliament. 

As to the validity of the notices, it should be considered that the notices did not relate exclusively to privileged or possibly privileged documents and did not require the immediate production of any of the documents.  This afforded an opportunity for a claim of parliamentary privilege to be raised.

Conclusion:

The Court concluded that the subject documents were protected from production to the CCC by parliamentary privilege.  The notices were not an invalid exercise of power. The declarations in that regard sought by the plaintiff will not be made.  The receipt of the documents and other items on the basis that a valid determination of privilege had been made was not valid.  The CCC did not have power to require the production of privileged documents and until a proper determination of which documents were protected from production had been made any documents possibly covered by such privilege should not have been produced.  The Court ordered documents and related items to be returned to allow for a proper determination of privilege to be made, either by Parliament or by a court, or by way of a procedure authorised by Parliament or a court.

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AAN -v- BUTTERFIELD [2021] WASC 228 (13 July 2021)

The appellant was charged for breaching the self-quarantine directions.  The appellant was convicted on his plea of guilty, sentenced with a term of imprisonment of 7 months with 2 months to be served immediately and 5 months suspended for 12 months.  He appeals such sentence alleging that there is miscarriage of justice. 

Facts:

On 29 December 2020, the appellant arrived at Perth airport from Victoria.  The Victorian Outbreak Recently Arrived Travellers Self-Quarantine Directions 2020 required persons travelling from Victoria between 21 December 2020 and 31 December 2020 to quarantine immediately. 

The appellant was advised by the WA Police accordingly and was required to quarantine immediately.  13 days into the appellant's self-quarantine period, police officers attended the address in Ardross and the appellant was not present.  The appellant said in his interview with the police that he went to a friend's house earlier in the morning.   The appellant had been tested for COVID-19 on 9 January 2021, however, at the time of the offending, he did not know the results of the test.

On 3 March 2021 the appellant was convicted on his plea of guilty to one charge of failing to comply with self-quarantine directions.

The appellant was sentenced to a term of imprisonment of 7 months with 2 months to be served immediately and 5 months suspended for 12 months.  The appellant applied for leave to appeal against the sentence imposed on him. 

Issues:

I. Whether or not the sentence was manifestly excessive. 

II. Whether or not the magistrate erred in law. 

Applicable law:

Emergency Management Act 2005 (WA), ss 3 67 70 72A 86 - enacted in 2005 to 'provide for prompt and coordinated organisation of emergency management in the State

Sentencing Act 1995 (WA), ss 9AA6267 - provides that the magistrate should specifically identify the fact of the discount for the plea of guilty and further. 

Criminal Appeals Act 2004 (WA), s 14 - provides that the appeal should be dismissed if the magistrate's error did not give rise to a substantial miscarriage of justice.

Analysis:

At the beginning of the sentencing hearing, before the material facts were read, the magistrate asked if the appellant wished to obtain legal advice.  The appellant said he did not wish to do so.  When the appellant started to provide some further information as to his reason for breach of quarantine, the magistrate interrupted the appellant and then began his sentencing remarks. 

The respondent accepted that the magistrate erred in failing to inform the appellant of the seriousness of the charge and the penalties which may be imposed including the risk of being sentenced to a term of imprisonment. 

The magistrate failed to draw to the attention of the unrepresented appellant that he was considering imposing a period of imprisonment.  Having regard to the two character references speaking highly of the appellant, personal deterrence is less significant and a more lenient sentence than that imposed is appropriate. 

Conclusion:

The Court ordered the leave to appeal granted in respect of ground 3 of the amended appeal notice.  The appeal was allowed while the sentence imposed by the magistrate on 3 March 2021 be set aside.  The appellant is sentenced to a Community Based Order for a period of six months, with a community service requirement of 60 hours and a spent conviction order be made in respect of the conviction entered on 3 March 2021. 

 

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BAYER v POLICE [2021] SASC 86 (9 July 2021)

The appellant was involved in a vehicular accident which had him charged with two counts of violation of the Road Traffic Act. He appealed the conviction and sentence by the Magistrate alleging that evidence for such is insufficient. 

Facts:

The appellant stood trial before a Magistrate due to an Information charging that he drove a motor vehicle in a culpably negligent manner causing harm to Shaun Adrian Taylor or two counts of violation of the Criminal Law Consolidation Act of 1935.  The first count was for “Causing harm (to Mr Taylor) by use of a vehicle” contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (the CLC Act) and the second was for “Leaving an accident scene after causing harm by careless use of a vehicle” contrary to s 19AB(2) of the CLC Act.  The Magistrate convicted of both offences.  The appellant appealed the conviction and sentence by the Magistrate. 

Issue:

Whether or not the evidence establish that the driving was "reckless".

Applicable law:

Road Traffic Act 1961 s 43 - provides genuine belief on reasonable grounds that compliance would endanger his safety as a defence to a charge for failure to duty to assist the police where person is killed or injured.

Road Traffic Act 1961 s 45 - provides for Careless Driving as the lesser alternative charge for Reckless Driving.

Kane v. Dureau [1911] Argus LawRp 52[1911] V.L.R. 29333 A.L.T. 15 - provides that recklessness implies that the possible consequences which may ensue from his act are adverted to by the actor, but he is indifferent whether those consequences occur or not.

Analysis:

There has never been any suggestion from the prosecution nor the Magistrate that the subject collision was in any way deliberate; it was an unfortunate accident.  As particularised by the prosecution, a person may be said to drive a motor car recklessly if the circumstances are such that substantial harm may happen to another person using the road and that person still is indifferent to the consequence. Negligence on the other hand, is when the driver does not expect the consequences at all or when there is neglect to consider or to estimate the risk of possible consequences.

Count 2, on the other hand, involved an assessment of whether the defence in RTA s 43(3)(b)(i) (the s 43 defence) was proved by the defendant on the balance of probabilities.  The cumulative effect of a number of statements by the Magistrate in his reasons is such that his Honour’s finding that the defence was not proven must be set aside.  Remittance of Count 2 to a different Magistrate for re-trial would be unduly oppressive on the defendant. 

Conclusion:

The Court declared that Count 1 was not proven whether analysis of the evidence proceeded by reference to “reckless driving” or by reference to the more usual charge of “driving in a manner dangerous”. The conviction, sentence and the order for disqualification of driver's licence imposed on Count 1 are set aside and a conviction of Careless Driving is substituted. The appellant is to enter into a bond to be of good behaviour for a period of one year, commencing from today’s date, in the amount of $500. In all of the circumstances, it would be unduly oppressive upon the appellant to retry Count 2 and Count 2 is dismissed without re-trial.

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Han v More Cake Pty Ltd (Human Rights) [2021] VCAT 740 (9 July 2021)

The applicant is a 50 year old man who applied for a baking assistant position at the respondent's bakery kitchen but was rejected.  The applicant filed with the VCAT a complaint against the respondent for violating the EO Act due to gender and age based discrimination. 

Facts:

Mr Han, aged in his fifties, filed an application to the Victorian Equal Opportunity and Human Rights Commission against More Cake Pty Ltd, which Lu Wang was trading as, alleging that he has been discriminated against in the area of employment on the basis of his age and gender.  Since Mr Han made an application with the Tribunal, the VCAT made initial directions for the conduct of the proceedings on 2 March 2021. 

Mr Han rang the respondent to express his desire to apply for a baking assistant position but was informed that the position was already filled.  On the same day, Mr Han again rang the respondent to discuss why he had not been considered for the position, and to tell the respondent that he considered that the advertisement looking for female staff members aged between 18 and 27 was unlawful and discriminatory.  He lodged a complaint holding More Cakes Pty Ltd liable under section 109 of the EO Act and seeking compensation for his hurt, humiliation and loss as a result of that discrimination in the sum of $15,000.00.

Issue:

Whether or not Mr Han's was discriminated against based on his gender and age. 

Applicable law:

Equal Opportunity Act 2010 (Vic); ss  16, 182 - provides that a person must not authorize to publish or publish an advertisement which indicates or could be understood as discriminatory. 

Analysis:

The respondent’s has shown evidence that he had chosen a ‘tick box’ age range option on the Yeeyi platform, but testified that he had no reason to prefer that age range, and would have considered applications from persons outside that age range depending on their suitability for the roles.  He also removed the advertisement once informed of its potentially discriminatory content.

The respondent was not prepared to appoint a man to the advertised positions.  While the attribute of gender was not the sole reason for the respondent's unfavourable treatment of the applicant, gender is a substantial reason.  Despite the respondent being motivated by the safety and wellbeing of his spouse who worked alone in the kitchen late at night, his motive is not a relevant consideration. 

Mr Han firstly speculated that, had he been employed, he might have earned $1,000.00 a week for a six-month trial period at More Cake Pty Ltd, totalling $26,000.00.  This differs from his stated claim of $15,000.00 to incorporate losses of potential earnings as well as hurt and humiliation.  The advertised positions were part-time in nature and a six-month trial period would not have been offered.  Mr Han has maintained that the effect of discrimination has led to feelings of hurt and humiliation and suggested that he should be awarded $15,000.00 for his hurt and humiliation.  However, there is no medical and psychological evidence in relation to such impact claimed by Mr Han. 

Conclusion:

The Court concluded that the respondent did not discriminate on the basis on age but of gender.  The Court ordered to declare that Lu Wang trading as More Cake Pty Ltd acted in contravention of Part 4 of the EO Act.  Not being quantifiable given Mr Han's speculations, there will be no award made for the loss of potential income.  There will also be no award for general damages for non-economic loss due to humiliation or psychological injury.

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Secured Lending 1 Pty Ltd v Mahmassani [2021] NSWSC 811 (7 July 2021)

Cross-claimants were asked by their son to help repay his debts.  Their son used their home as security.  Cross-claimants assert that the solicitor failed to explain the loan agreement and mortgage, was negligent and breached retainer, and exhibited unconscionable, misleading and deceptive conduct.

Facts:

Plaintiff, commenced proceedings seeking judgment for the possession of land at 168 South Street, Rydalmere pursuant to a loan agreement and mortgage dated 26 September 2018 with Menara Traders Pty Ltd.  The company was registered by the defendants' son without their knowledge so that he could borrow funds with his parents' home as security in order to pay for his unsuccessful investments.  The defendants were the directors of the company and guarantors of the loan of $750,000 and the mortgagors.  Upon nonpayment, notice was served but it was still not complied with.  On 4 July 2019 the defendants filed a cross-claim against a solicitor and the firm for whom he worked, a broker and the firm for whom he worked, and against the plaintiff.  The claim against the solicitor is due to his failure to explain a number of aspects about the loan agreement and mortgage to them despite executing a certificate asserting that he had done so. 

Issues:

I. Whether or not the conduct of solicitor was unconscionable. 

II. Whether or not the solicitor was negligent and breached detainer. 

III. Whether or not the conduct of solicitor was misleading and deceptive.

IV. Whether or not causation was established. 

Applicable law:

Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (NSW) r 11 - provides for the rules regarding documents which must be completed and retained when a solicitor gives advice to a borrower/guarantor/mortgagor.

Studer v Boettcher [2000] NSWCA 263 at [75] - held that the solicitor's specific obligation to advise does not include advising whether or not parties should enter into a transaction. 

Civil Liability Act 2002 (NSW) s 5D - provides the general principles and onus of proof regarding causation. 

Analysis:

While the solicitor completed documents which were not in the approved form, such failure is not evidence of negligence.  Contrary to the cross claimants' assertion that the solicitor should reasonably have been aware or should have taken steps to ascertain whether the cross-claimants were in a position of special disadvantage in dealing with the plaintiffs “and their agent, the cross-defendant”, a solicitor’s breach of his retainer or duty of care in failing properly to explain and advise in relation to a transaction to be entered into by his clients does not mean that he has acted unconscionably. 

The solicitor explained that the loan was a short-term loan for three months, and that if it was not repaid within that time the house would need to be sold to pay the lender.  The solicitor inquired of the defendants before they signed the documents if they had understood what he had said and they agreed that they had.

Since cross-claimants would have gone ahead with arrangement, assuming there was failure on the solicitor's part, such failure would not be a necessary condition of the occurrence of the harm.

Conclusion:

The Court held that the solicitor did not breach his duty of care and thus is not negligent nor breached detainer.  Furthermore, since the solicitor was not negligent he is not guilty of misleading and deceptive conduct.  Causation was not established.  The solicitor's conduct was also held to be conscionable.  The Court ordered to dismiss the amended cross-claim.  Cross-claimants are ordered to pay the first and second cross-defendants' costs. 

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HQE v Victims of Crime Assistance Tribunal (Review and Regulation) [2021] VCAT 722 (5 July 2021)

HQE and KRW, minors, were victims of a riot. They were granted financial assistance by VCAT.  They further claim expenses for security equipment, gym membership and self-defence instruction alleging that they have suffered both physical and psychological harm.

Facts:

On 19 May 2020, HQE and KRW applied to VCAT for a review of VOCAT's decision.  On March 2019, HQE and KRW, then aged 15 years, became victims of violence during an affray or 'near riot.'  During the hearing held by VOCAT on 19 May 2020, the applicants were awarded special financial assistance under section 8A of the Victims of Crime Assistance Act 1996 (the VOCA Act) on the basis that they were primary victims; that there were category D acts of violence committed against them; and that they had experienced or suffered a significant adverse effect as a direct result.  An award was also made for past and future counselling expenses.  HQE and KRW each claim an award of amounts for security equipment for his home, a 12-month gym membership, and self-defence instruction as 'adjunctive therapy.'  HQE and KRW and their families believe that the offenders are part of a gang, affecting HQE and KRW’s reaction when they see young persons who share the offenders’ ethnic background.  The applicants' claim their suffering is not limited to physical harm but also psychological harm which includes PTSD with symptoms including hypervigilance, panic attacks and disturbed sleep.

Issues:

I. Whether or not there are exceptional circumstances.

II. Whether the expenses are reasonable likely to be incurred by HQE and KRW to assist their recovery from the acts of violence.

Applicable law:

Victims of Crime Assistance Act 1996 s 8(3), 54(b)(iii) - gives the decision-maker the discretion in permitting awards for expenses, requires that regard be had to the financial resources (including earning capacity) and the financial needs of the applicant and any other related victim applicants.

QMX v Victims of Crime Assistance Tribunal [2018] VCAT 614 - provides that "exceptional" has been defined to mean “unusual, special, out of the ordinary course."

Analysis:

HQE and KRW are minors.  HQE is an apprentice.  KRW is a student.  Their mothers testified that if the award were not made, the families could not meet the expenses.  The psychologist testified that the claimed expenses would generally be good for the applicants because it will boost their spirits, taken together with the evidence given by HQE and KRW and their mothers about the symptoms they still have, the expenses for security equipment would most likely assist HQE and KRW’s recovery from the acts of violence.

As submitted by Mr Slonin, the attack was a ferocious gang attack committed at school, which should have been a safe and secure environment.  Such circumstance qualifies as to what is contemplated as "exceptional."

Conclusion:

The Court granted the awards to be made to the applicants for expenses particularized in their amended statements of claim such as expenses for security equipment, the gym memberships, and the self-defence instruction, to be paid to each of them as soon as practicable on or after their eighteenth birthday.

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Intro:-

The principal question in this appeal is whether cl 24 of each mortgage is void and unenforceable as contrary to the public policy underpinning the Limitation of Actions Act 1974 (Qld) ("the Limitation Act").

Price v Spoor [2021] HCA 20 (23 June 2021)

Facts:-

The Limitation of Actions Act 1974 (Qld) ("the Limitation Act") contains provisions which prescribe the time within which actions founded upon simple contract or for the recovery of land or monies secured by a mortgage over land shall be brought.

The principal question on this appeal is whether the parties to a mortgage may agree that the mortgagor will not plead the statutory limitation by way of defence to an action brought by the mortgagee or whether such an agreement is unenforceable as contrary to public policy. A second question concerns the operation of a provision of the Limitation Act respecting extinguishment of title. A third concerns the terms of a clause in the mortgages in question and whether they are effective to prevent the appellants from pleading the statutory time limitation.

These questions arose in proceedings brought in 2017 in the Supreme Court of Queensland by the respondents as mortgagees in which they claimed more than $4 million as monies owing under and secured by two mortgages, together with recovery of possession of land the subject of the mortgages.

By way of defence and counterclaim, the appellants alleged that the respondents were statute‑barred from bringing the action for debt pursuant to ss 10, 13 and 26 of the Limitation Act. The respondents were in consequence said to be barred from enforcing any rights under the mortgages. Two appellants further alleged that the respondents' title under the mortgages had been extinguished.

In reply, the respondents relied on cl 24 of each mortgage, which they contended amounted to a covenant on the part of the appellants not to plead a defence of limitation. As a result it was said that the appellants were estopped from pleading it. The respondents might have described the abandonment of reliance on the statutory right which they allege was effected by the agreement as a waiver by the appellants of that right.

Issues:-

1) Whether cl 24 is effective to prevent mortgagors from pleading any defence under the Limitation Act or whether agreement not to plead any defence under the Limitation Act is unenforceable as contrary to public policy.

2) Whether s 24 of the Limitation Act operated automatically to extinguish mortgagees' title at expiry of relevant time period.

3) Whether mortgagees' remedy confined to damages for mortgagors' breach of cl 24 of mortgages.

 

Analysis:-

The Limitation Act provisions and their effect

Section 10(1)(a) of the Limitation Act in its relevant part provides that:-

"(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose –

(a) ... an action founded on simple contract ..."

Section 13 provides:

"An action shall not be brought by a person to recover land after the expiration of 12 years from the date on which the right of action accrued to the person or, if it first accrued to some person through whom the person claims, to that person."

The provision which relates to the extinguishment of title upon which the appellants rely is s 24(1), which relevantly provides:

"... where the period of limitation prescribed by this Act within which a person may bring an action to recover land ... has expired, the title of that person to the land shall be extinguished."

Section 26 deals with actions to recover money secured by a mortgage or to recover proceeds from the sale of the land.

In WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34, five members of this Court explained the effect of statutes of limitation by reference to what had been said by Gummow and Kirby JJ in The Commonwealth v Mewett (1997) 191 CLR 471. In Mewett, their Honours said that in the case of a statute of limitations in the traditional form a statutory bar does not go to the jurisdiction of the court to entertain the claim but rather to the remedy available, and therefore to the defences which may be pleaded. The cause of action is not extinguished by the statute and unless a defence relying on the statute is pleaded, the statutory bar does not arise for the consideration of the court.

What was said in Mewett accords with the reasons of Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394. Speaking there of then s 5(6) of the Limitation of Actions Act 1958 (Vic)("the Victorian Limitation Act"), his Honour said that although the terms of that provision are capable of being read as going to the jurisdiction of the court, limitation provisions of this kind have not been held to have that effect. Instead they have been held to bar the remedy but not the right and thereby create a defence to the action which must be pleaded. These statements have been applied with approval on a number of occasions in this Court.

Mason CJ went on to observe that since the right to plead a limitations defence is conferred by statute a contention that the right is susceptible of waiver "hinges on the scope and policy" of the Victorian Limitation Act. The same may be said of the question whether a person may abandon the statutory right to plead a defence of limitation, by agreement.

Public Policy

In Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] HCA 54 it was accepted that a person upon whom a statute confers a right may waive or renounce that right unless it would be contrary to the statute to do so. Most clearly this may be the case where the statute contains an express prohibition against "contracting out" of rights or where the statute, properly construed, is inconsistent with a person's power to forgo statutory rights. The joint judgment continued:

"It is the policy of the law that contractual arrangements will not be enforced where they operate to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone. The courts will treat such arrangements as ineffective or void".

The appellants rely upon the public interest in the finality of litigation as the policy which the Limitation Act pursues. The finality of litigation, they contend, was the mischief to which the Jacobean statute of 1623, which is the origin of statutes such as the Limitation Act, was directed.

There can be no doubt that a policy of finality of litigation accounts for the provision made by the legislatures for limiting the period within which certain actions should be commenced in the courts. Provisions of this kind are conducive to the orderly administration of justice and are in the public interest, as it may be expected many statutes are. But as Mason CJ explained in Verwayen, the issue concerning whether a statutory right is capable of waiver, or abandonment by other means, is not whether the provisions in question are beneficial to the public, but rather whether they are "not for the benefit of any individuals or body of individuals, but for considerations of State". The "critical question", he said, "is whether the benefit is personal or private or whether it rests upon public policy or expediency".

Mason CJ concluded that by giving defendants a right to plead the expiry of the relevant time period as a defence, rather than imposing a jurisdictional restriction, the purpose of the Victorian Limitation Act could be discerned as one to confer a benefit on individuals "rather than to meet some public need which must be satisfied to the exclusion of the right of access of individuals to the courts". It was therefore possible, in his Honour's view, to "contract out" of statutory provisions of that kind.

Extinguishment

Section 24 of the Limitation Act provides, in effect, that where the time prescribed by the Act within which a person "may bring an action" to recover land has expired, the person's "title" to that land "shall be extinguished". The time for bringing such an action is prescribed by s 13. The title to the land here in question is that of a registered mortgagee of land. "[L]and" is defined to include "any legal or equitable estate or interest therein", which encompasses a registered mortgagee's interest.

By contrast with provisions such as s 13, s 24 operates to extinguish rights, not create them. The appellants contend that the respondents' title to the land was extinguished by the operation of s 24 before the proceedings in the Supreme Court were commenced. The argument was not fully developed but the appellants may be understood to suggest that s 24 operated automatically at the end of the limitation period to extinguish the respondents' interest in the land as mortgagee regardless of whether the appellants pleaded the limitation period by way of defence. That is to say, s 24 is to be understood to operate independently of s 13, rather than providing for what follows from a successful plea.

Textually there are strong indications that s 24 operates by reference to the plea. Section 13 says that "[a]n action shall not be brought" to recover land after the expiration of 12 years. Consistently with the authorities earlier referred to, in Brisbane City Council v Amos (2019) 266 CLR 593, Keane J observed that the term "shall not be brought" has been given a special meaning by the courts, one which is to be understood to refer to the defence provided by the statute, but which must be pleaded if effect is to be given to the limitation on bringing the action. The point presently to be made is that s 24, in its terms, proceeds upon the same footing. It also refers to the limitation period as that within which a person "may bring an action" to recover land. It contemplates a plea of the time-bar being made under s 13 and being given effect.

Further support for the view that s 24 is not intended to operate automatically and independently of s 13 at the expiry of the limitation period is provided by considerations of utility. If a provision such as s 24 automatically extinguished title there would seem to be no utility to the requirement affecting s 13 that a defendant must raise the defence in order to defeat a claim. If s 24 operated in the way contended for, there would remain no right or title in respect of which a remedy could be given. This appears to be the point made by the New South Wales Law Reform Commission in its 1971 Report on the Limitation of Actions.

The construction of cl 24

Clause 24 of each mortgage provides:-

"The Mortgagor covenants with the Mortgage[e] that the provisions of all statutes now or hereafter in force whereby or in consequence whereof any o[r] all of the powers rights and remedies of the Mortgagee and the obligations of the Mortgagor hereunder may be curtailed, suspended, postponed, defeated or extinguished shall not apply hereto and are expressly excluded insofar as this can lawfully be done."

An objective approach is required to determine the rights and liabilities of a party to a commercial contract, by reference to its text, context and purpose. The meaning to be given to its terms is determined by reference to what a reasonable business person would have understood those terms to mean.

Clause 24 is expressed to apply to all statutes affecting the mortgagee's rights and remedies and the obligations of the mortgagor. The effects spoken of include the defeat or extinguishment of rights. Where this occurs, the parties agree that the statute "shall not apply hereto" and shall be regarded as "expressly excluded".

Damages only?

Because the respondents are not confined here to a claim for damages for breach of cl 24, it is unnecessary to consider whether they had made an election not to sue on that basis or whether they should otherwise be estopped from pursuing such a claim.

Order:-

The appeal should be dismissed with costs.

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The Educational and Training Reform Amendment (Protection of School Communities) Act 2021, a response to occupational violence and aggression to school staff, amends the Education and Training Reform Act 2006 (Principal Act). 

The Principal Act is amended to provide for orders with the corresponding civil penalties that protect the school staff and its community from harmful behavior of parents and adults who show threatening or aggressive conduct.

The Principal Act is further amended to extend the definition of harm as including physical or mental harm.

Immediate school community safety orders may be resorted to by an authorized person when there is imminent harm until the normal ongoing school community safety order process may be undertaken. Authorized persons include the principal, the Secretary if its a Government school, and the proprietor of the school or if not available, the person authorized by the Secretary if its a non-Government school. Ongoing school community safety orders may be resorted to by authorized persons to prohibit a person from posing an unacceptable risk of harm at any school-related place.  However, these orders cannot apply to a person under 18, a staff member, or student of the school.  

The Act may be said to be in violation of Freedom of Expression because it authorizes a person to make an order prohibiting a person from communicating with specified school staff, excluding a person from school-related placed.  Such order can be revoked provided that a person apologizes or retracts a particular statement.  The Act, through its allowance for an ongoing order to be made if a person has engaged in vexatious communication, may inhibit a person's capacity to express. 

Despite the abovementioned restrictions, it still cannot be said that the freedom of expression is violated because the restriction are the means necessary to protect the rights of the others.  One of the procedural safeguards to ensure reasonableness of the  restrictions on individual expressions is having the individual make a case for why the order should be made or revoked.  Before an order is made, there is also a submission which should be made upon an authorized person who shall consider the vulnerability of the person and the least restrictive alternatives. 

As to freedom of movement, which may be limited by the exercise of the powers to make immediate and ongoing orders, the safeguard for such restriction lies on its reasonableness.  The limit on freedom of movement envisioned in the Act is appropriately circumscribed because orders, in pursuance of procedural fairness, may only be made when its satisfies one of the relevant grounds for making an order. 

The Act's interference with the right to privacy where an order prohibits a person from contacting staff members, correspondence on a school-run social media page, or when private information is provided in making of orders, is lawful and not arbitrary. 

The rights of families and children is limited because of the Act's interference with the ability of family members subject to immediate or ongoing orders to attend school events.  This is still in the best interests of children and families by improving the ability of the school to handle harmful conduct in the school community. 

As to the right to equality, the discrimination involved in imposing orders on the basis of behavior that is a symptom or manifestation of a disability, is reasonable and justifiable.  This is for the purpose of creating a safe environment for the wider school community. 

The Act provides that ongoing orders should have internal and external review processes and that penalties may only be imposed by the Magistrates' Court so that the Act does not go beyond what is necessary to achieve its purpose.  The Minister may make guidelines with respect to the enforcement of the orders, alternative arrangements, and the processes for making submissions and reviewing decisions to make school community safety orders.  These Guidelines should be published on the Internet site of the Department and its amendments must be published in the Government Gazette.

The Act is overall aimed to address the inadequacy of existing legislative schemes in dealing with violence and aggression from parents, carers, and other adults in schools by expanding the spectrum of protection which could be provided for the school community. 

 

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Fair Work Ombudsman v China Bar Buffet (Epping) Pty Ltd & Ors [2021] FCCA 1430 (25 June 2021)

Respondents failed to pay the parties appropriate pay rates to employees. The parties seek from the court declarations of contravention and imposition of pecuniary penalties against the respondents.  Determination of penalties are guided by significance of general and specific deterrence as well as the totality principle. 

Facts:

The applicants seek various declarations of contravention, pecuniary penalties within a range proposed by consent of the parties and various consequential orders.  The respondents seek that the lowest penalties be imposed.  The First Respondent conceded that it contravened provisions of the Fair Work Act in relation to Mr Yongli's employment in China Bar by failing to pay the minimum rates of pay, annual leave entitlements on terminations, split shift allowances and superannuation contributions. 

There was also failure to keep employee records, give pay slips and false or misleading records were made. 

The second (sole director of the first respondent) and third respondents (bookkeeper) have each conceded that they were involved in these contraventions for the purposes of s. 550(1) of the Fair Work Act but later on expressed contrition and have cooperated with the applicant.  The First Respondent submits that general deterrence is a relevant consideration since the restaurant industry which has consistently been recognised as notorious for underpayment of employees, particular vulnerable overseas workers while the applicant asserts that while the First Respondent remains registered, specific deterrence remains a relevant consideration particularly given the second respondent’s ongoing role in numerous other companies.

Issue:

Whether or not the penalties reflect the need for general deterrence. 

Applicable law:

Fair Work Act 2009 (Cth) 'FW Act' - requires just and proper administration of payment to Employees. 
 
Fair Work Regulations (2009) (Cth)regs.3.44(1), 3.44(6) - provides for the regulations related to keeping records with respect to the Employee's salary.
 
Kelly v Fitzpatrick [2007] FCA 1080(2007) 166 IR 14 - provides for the totality principle in assessing penalties to be imposed.  Discusses the important of specific and general deterrence in determining appropriate penalties.
 
Analysis:
 
Pursuant to the totality principle, penalties should not be at the upper end of the agreed scale since this is not a case of repeat offender, the respondents fully cooperated lasting change, and the question as to the proper basis for proceedings against the third respondent.  Specific deterrence is not relevant in relation to the first respondent because he does not currently employ staff and has no intention of doing so.  Since the first respondent works in a restaurant industry notorious for underpayment of employees, general deterrence is a critical factor.  General deterrence is also relevant in relation to the third respondent to ensure that employees who perform payroll or human resource functions put their responsibility to comply with the law above their own interests, including their own job. security
 
Conclusion:
 
The Court ordered a penalty at the lower end of the agreed scale in the sum of $19,500 for the Third Respondent who was effectively directed to take on additional responsibilities but not provided with any training to support her in her new duties, strikes the right balance.  A penalty in the mid-range of the agreed scale is adjudged to the first respondent and the second respondent.  In the case of the first respondent, a penalty of $249,000, having contravened civil remedy provisions from the FW Act and in consideration of his seniority.  In the case of the second respondent, a penalty of $41,250 since the first respondent not only failed to provide the Employee with his entitlements, and failed to maintain accurate records which would have assisted in the investigation phase, but actually maintained records which the second respondent, as the directing mind and will of the first respondent, knew were false and misleading.
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Ezekiel-Hart v Council of the Law society of the ACT & Anor [2021] ACTs.C 133 (30 June 2021)

Plaintiff, a qualified solicitor, unable to practice law, filed a case against the Law Society and its President for negligence and violation of the Human Rights. Act 2004 (ACT) for taking his human right to work and discriminating against him for being black. 

Facts:

The plaintiff, a qualified solicitor, does not currently hold a practicing certificate.  The Law Society and its President have been involved in litigated disputes with the plaintiff.  In the first proceeding, the Statement of Claim the Law Society and its President were directed to establishing negligence and a separate statutory cause of action pursuant to the Human Rights Act 2004 (ACT). 

The defendants sought to dismiss the proceeding and wrote to the plaintiff advising that they were in the process of preparing an application seeking strike out of the claim, summary judgment and a declaration that the plaintiff is a vexatious litigant.  Only their notice of intention to respond was timely filed within 21 July 2020 (date when defendants' were served with claim) to 18 August 2020 (28 days after).  The second proceeding arises out of a procedural dispute in the first proceeding.  The plaintiff sought a default judgment which was declined by the Deputy Registrar who is now sought by the plaintiff to make such an order through a judicial review. 

Issues:

I. Whether an order should be made compelling the Deputy Registrar to enter default judgment in the second proceeding.

II. Whether or not the first proceeding should be struck down.

III. Whether or not the plaintiff should be declared a vexatious litigant.

Applicable law:

Court Procedures Rules 2006 (ACT) rr 1121, 1122, 1123,1124, 1118(1)provide for the Court to supervise the orders made by registrars in proceedings.  If the registrar including the deputy registrar, a party who is dissatisfied, may, by way of "rehearing of the matter anew," appeal to a judge or the associate judge.  The power to enter default judgment clearly includes a discretionary element where it appears that the defendant wishes to defend the action in the ordinary way. 

Human Rights Act 2004 (ACT) ss 7-1227B303140B40C - basis of the plaintiff for alleged discrimination by the defendants which is not exhaustive of the rights an individual may have under domestic or international law and provides that international law, and the judgments of foreign and international courts and tribunals, relevant to a human right” may be considered in interpreting the human rights addressed in the Human Rights Act.

Supreme Court Act 1933 (ACT) ss 67A - provides for the purpose of vexatious proceedings which is to harass or annoy, to cause delay or for some other ulterior purpose.

Analysis:

Applying r. 1117(2)(a)(iii) from the Rules, the defendants remained in default until 22 September 2020, when a defence was filed by them because a defendant is only in default if he files a defence after the time required by rule 102 or any further period agreed between the relevant parties or allowed by the court, but before a default judgment is entered against the defendant.  There was no strike-out application in proceeding filed by the defendants, although one was foreshadowed.  As such, there was no procedural barrier to default judgment being entered.

The first proceeding should be struck down because of its confusing structure which makes it difficult for the defendants' to understand the real substance of the claim.  The facts implying that the treatment to the plaintiff was because of his cultural background should be specified. 

Bearing in mind the gravity of the relief sought in depriving a litigant of access to courts, a declaration that the plaintiff is vexatious is inappropriate.  Contrary to the defendants' assertion, the second proceeding was reasonably commenced and the reason for its failure are the subsequent procedural steps taken by the defendants so that they were not in default when the Court came to consider whether to enter default judgment. 

Conclusion:

The second proceeding is dismissed.  The Court declared that the first proceeding be summarily dismissed, and the plaintiff not be declared a vexatious litigant.  The Court declined to make an order having the plaintiff pay the defendants' costs of the second proceedings, each party has to pay their own.

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In the matter of an Application by Adams (a pseudonym) (No 2) [2021] NSWSC 794 (30 June 2021)

The plaintiff applied for Court orders permitting the transfer of gametes from the deceased body of her late husband to the Australian Capital Territory. The issue of whether or not the storage and use of such tissue sample could be authorized was decided by the Court with the guidance of Assisted Reproductive Technology Act 2007 (NSW) 'ARTand Human Tissue Act 1983 (NSW) 'HT'.

Facts:

Ms Adams, the plaintiff and her late husband were contemplating having a family in 2018, a year after her diagnosis with endometriosis her condition was responding well to the treatment.  To honor his wishes, plaintiff sought an order from the court to remove the gametes of her deceased husband who died by his own hand.  Upon approval by the State Coroner, the Court permitted the removal of gametes as well as its storage at Genea Limited in Sydney pending further orders declaring that the plaintiff is entitled to the sperm of the late defendant and authority of Dr Ying Li to extract the semen of the deceased and store the same in an Assisted reproductive facility. 

The Plaintiff then filed a notice of motion for the court to permit her for the transfer of the gametes from Genea to the Australian Capital Territory for an invitro-fertilisation treatments per advice of Genea that to do a posthumous IVF procedure a court order permitting the release of the gametes to a third party is required in South Wales. A consent order was obtained by the plaintiff accordingly.

Issue:

Whether the terms of the Assisted Reproductive Technology Act 2007 (NSW) authorised the storage and use of a tissue sample.

Applicable law:

Assisted Reproductive Technology Act 2007 s 23 - for assisted reproductive technology treatment to be provided, the gamete provider must have consented to the use of the gametes after his or her death.

Human Tissue Act 1983 s 24(1) - provides that, when the body of a deceased person is at a place other than a hospital, the authorisation of the removal of tissue from the body of the deceased person can occur, for certain purposes, if the deceased person had, during their lifetime, provided written consent for such a removal and that consent had not been revoked.

Human Tissue Act 1983 s 24(3) - when the body of a deceased person is at a place other than a hospital, the “senior available next of kin” of the deceased may, by instrument in writing or in any other manner prescribed by the regulations, authorise the removal of tissue for certain purposes.

Analysis:

The deceased did not provide written consent for the removal of his gametes after his death pursuant to s.17 of the ART Act to enable storage of gametes extracted after his death.  However, the plaintiff validly authorised the extraction of gametes from the body of the deceased pursuant to s.24(3) of the HT Act:  Adams No 1 at [48] and no application was made to set aside previous orders for the sperm to be stored pending further order at Genea in Sydney.

Conclusion:

The Court confirms its orders of 15 March 2021 that Genea Limited is entitled to release to the plaintiff, the gametes of her late husband collected on or about 15 August 2019 (“the tissue sample”) currently stored by Genea for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory.

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Guha v Guha (No 2) [2021] NSWSC 757 (28 June 2021)

Property previously owned by Spouses Guha was transferred to one their daughters by Mrs Guha, who became its sole proprietor.  The latter commenced proceedings to have the transfers rescind in equity. 

Facts:

Mr and Mrs Guha had three daughters.  Their eldest daughter, Debadrita, is Mrs Guha's tutor in the proceedings while Samadrita is the defendant.  Their youngest daughter, Diwali suffers from quadriplegia and cerebral palsy with Debadrita held to have parental responsibility over her. 

Upon the death of Mr Guha, a conflict between Samadrita and Dehadrita arose over the property. 

Samadrita was the one who prepared the will for Mr Guha who signed the same in the hospital before the New South Wales Civil and Administrative Tribunal decided to place Mr Guha under the care of a Public Guardian.  Upon his death, Mrs Guha became the sole proprietor of the property.  Samadrita later on applied to be her mother's guardian but Debadrita opposed the application. 

Debadrita asserts that the transfers to Samadrita were influenced by unconscionable conduct on the part of Samadrita who took advantage of Mrs Guha's special disability or disadvantage since concerns were raised about her ability to manage her own affairs. 

Issue:

Whether or not Samadrita is guilty of fraud. 

Applicable law:

Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.3 - an allegation of fraud or dishonesty is a serious matter that can take a defendant by surprise and requires proper pleading and particularisation.

Turner v O’Bryan-Turner [2021] NSWSC 5 at [399][400] - provides the elements of special disadvantage.

Analysis:

An allegation of fraud has to be clear as to what it adds to the claim for rescission of the transfers from Mrs Guha to Samadrita.  The validity of the will should first be raised as an issue on Mrs Guha's statement of claim before it could be considered as proper to rule upon fraud. 

During the transfers, Mrs Guha was established to have been unable to look after herself.  According to the NCAT application, Samadrita had actual knowledge of her mother's condition as early as September 2007.  The transactions were clearly improvident as the property is the only substantial asset in the family transferred to Samadrita for no consideration. 

Conclusion:

The Court ordered that the defendant take all steps reasonably required to transfer Lot [XX] also known as [XX] Terrigal Street, Marayong New South Wales to the plaintiff.  The defendant is ordered to pay Mrs Guha costs on an ordinary basis. The plaintiff's claim as well as the defendant's crossclaim is dismissed. 

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Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 (28 June 2021)

Darzi and Nolde enter into a lease agreement with the former operating a restaurant on the latter's property.  Nolde disputes Darzi's application to renew the lease agreement asserting that they have a toxic interpersonal relationship and that the latter has breached their lease agreement. 

Facts:

Plaintiff Darzi Group Pty Ltd operated a restaurant on the ground floor of the Defendant Nolde's property.  The parties entered into a lease agreement, pursuant to their negotiations on terms of the agreement, Darzi sent Nolde an executed form of lease embodying the agreed terms.  Nolde failed to deliver the counterpart as requested by Darzi who then commenced proceedings to seek a declaration that the parties entered into a retail lease.  The Court declared that the parties entered into an agreement for the lease of the premises in terms of the 15 June 2016 document. 

Nolde ought to execute such document and furnish Darzi its certified copy of the registered instrument as evidence of the latter's title.  Upon Nolde's noncompliance with the order, Darzi exercised the Option to renew the lease for a further term of five years and three months.  Nolde disputes the exercise of such option by alleging, through a notice, that Darzi breached the lease by making unauthorized alterations, failing to pay outgoings and failing to open the Restaurant seven days a week. 

Nolde pleads that the Court should exercise its discretion in favor of Nolde because of the toxic interpersonal relationship with Darzi which would only lead both to suffer due their inability to cooperate.  Darzi's defence reasoned that its payment of reduced rent for May and June 2021 was due to Darzi being an impacted lessee pursuant to the COVID-19 Regulations.  Darzi also asserts that Nolde was not entitled to any of the share of outgoings that it claimed as it had not provided the former with the outgoings estimates.  Darzi further claimed its right to set off its entitlement to be paid legal costs against its obligation to contribute to outgoings under the Lease. 

Issues:

Whether or not Darzi may exercise the option to renew its lease agreement with Nolde.

Whether or not the rent should be renegotiated.

Applicable law:

Conveyancing Act 1919 s 129, 133E - lessee’s entitlement to exercise an option can only be extinguished by the lessor on the ground of breach of the lease if the lessor serves on the lessee a notice as prescribed by the section, and the lessee does not seek within one month after service of the prescribed notice an order for relief against the effect of the breach, or that relief is not granted in proceedings in which it is sought.

Retail Leases Act s 28A - If the lessor gives the lessee within three months after the end of the accounting period a statement of outgoings actually paid, the lessee will be obliged to pay the share of outgoings payable under the leases.

COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) - authorised the making of regulations to respond to the effect of the COVID-19 pandemic on the businesses of tenants whose leases were subject to the Retail Leases Act.

Analysis:

The lessee's right to an order for specific performance is not absolute and the Court retains a discretion as to whether or not to make an order for renewal.  The quality of the conduct of the parties that is required under the Lease is not of a nature that justifies the equation of the present case to contracts that depend upon the effectiveness of interpersonal relationships.  Nolde failed to provide a breach by Darzi which would justify termination of the lease.

Darzi only made one request for an outgoings estimate on 21 August 2019 ignoring that the former's one request was that Nolde give the required outgoings estimate indefinitely into the future.  Such will only be effective if it requires the same before each accounting period for the duration of the lease.  Failure by a lessor to deliver outgoings estimates upon request does not make the lessor disentitled to the proportion of the outgoings in accordance with the lease. 

Darzi, being an impacted lessee during May and June 2020, is incapacitated to pay rent in full.  Contrary to Nolde's assertion of insufficient evidence proving Darzi is an impacted lessee, the urgency of the situation provides lessees with leniency as to the requirement of financial information to the lessors.  A renegotiation process is relied upon by the lessors to authenticate financial information of the lessees. 

Conclusion: 

The Court found that contrary to Nolde's assertions, a breakdown inter-personal relations between principals of parties to the lease is not a proper basis for the Court to deny the lessee its proprietary right to a renewal of the lease and damages are not an adequate remedy. Specific performance of lessor’s agreement to grant a renewed lease to lessee is ordered.  Due to Nolde's genuine understanding of the Covid-19 Regulation, it is irrelevant to rule upon their failure to engage in the renegotiation process because the lessee was not caused substantial loss. 

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JOLLEY -v- TRUONG [2021] WASC 194 (22 June 2021)

Mr Jolley was charged for the offence of stalking E.  He now appeals on the ground of miscarriage of justice due to his lawyer.   

Facts:

Mr Jolley was charged because of pursuing E, the complainant, to intimidate her.  The intimidation took place at the Kiara IGA Store, E's workplace, behind the car E was driving at Morley Drive where Mr Jolley would drive erratically, and E's parents' house where E lived at the time.  The Magistrate court issued a fine and a three year restraining order against Mr Jolley.  The latter appeals against his conviction and sentence on the grounds of misrepresentation by lawyer and his lawyer not following his instructions.  Mr Smith, his lawyer, failed to provide expert analysis which he assured Mr Jolley he would, regarding discovery of bugging by the complainant of his phone.  Mr Smith also failed to call the supposed trial witnesses. 

Issue:

Whether or not Mr Jolley's conviction should be quashed. 

Applicable law:

Criminal Appeals Act s 30(3)(c)- provides that the correct grounds for the respondent to assert the incompetence of his defense counsel is a contended miscarriage of justice.

Criminal Code (WA) s 338E(2) - provides that a person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.

Analysis:

Only with an addition of more facts and conduct extending back to mid-2014 could the 2016 visitation conduct by Mr Jolley be evaluated as supporting the meeting of the objective
s.338E(2) requirement for the standard of reasonably expecting by its manner to intimidate E.  Invoking pre-2016 facts only as mere background context only, will not be enough to meet the objective element within s.338E(2).

Conclusion:

In light of the two grounds as particularised in reference to the miscarriage of justice contention in particular concerning the amendment, at the commencement of his trial of the prosecution notice to add a further two years of prior material facts to the alleged period of his offending, the Court granted the leave to appeal of Mr Jolley.  His conviction for infringing Criminal Code (WA) s 338E(2) is set aside as well as the restraining order against him. 

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Adam Brookman who performed services for the Chechen group(s) through medical aid and armed guard duties was charged under the Crimes (Foreign Incursions and Recruitment) Act 1978ss  7(1)(e). Sentence imposed against him was in consideration of the delay between his arrest and sentence and his plea of guilty. 

Facts:

Adam Brookman was performing services for the Chechen group(s) who were engaged in hostile activity in Syria as shown from his own social media posts.  His posts reveal pictures of weapons that either belonged to him or that he was able to use because of his knowledge how as also shown from the posts.  His posts also show that he worked as a ribat or an armed guard for the opposition forces. Posts in support of anti-government opposition forces in Syria continued during and after the charge period. Brookman argues that his services mostly consisted of medical aid for civilians and of little direct assistance to the Chechen group(s). Brookman's case took long because of the wide-ranging subpoenas on his behalf in late 2019. Foreign evidence and foreign agencies also generally take longer to prepare for trial. 

Issue:

Whether or not there Adam Brookman is liable under Crimes (Foreign Incursions and Recruitment) Act 1978ss  7(1)(e).

Whether or not the sentence for Adam Brookman should be mitigated.

Applicable Law:

Crimes (Foreign Incursions and Recruitment) Act 1978ss  7(1)(e) - prosecutes persons for assisting for the purpose of promoting the commission of a s 6 offence by others, even if those others have no connection to Australia.

Crimes Act 1914 (Cth), ss 16A16A(2), 16E(2)-(3), 17A. - sentence imposed must have appropriate severity in all the circumstances of the offense considering all matters relevant to the case and known to the Court. 

Analysis:

Brookman's assertion that his services mostly consisted of medical aid for civilians and of little direct assistance to the Chechen group(s) is untenable because his value as a tertiary educated person is significant.  Under Crimes (Foreign Incursions and Recruitment) Act 1978ss  7(1)(e) he is still liable for performing services in support of others engaging in hostile activity which clearly shows his intent, at the time, to promote the Chechen group(s) in their engagement in hostile activity in Syria within the charge period. 

Conclusion:

The court ordered a sentence of six years and eight months with a non-parole period of five years which if not for the plea of guilty was a non-parole period of seven years. 

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Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726 (21 June 2021)

Applicant was previously charged with contempt for disobeying court orders to take down blog posts.  The former applied for recusal alleging that the judges were not impartial, the court considered whether the test for non-impartiality which is the apprehension of bias was fulfilled.

Facts:

Shane Downling used the content of text messages in Fifth Blog Post posted on a website in which the defendant solely owned (the Website) and did not remove the Fifth Blog Post from the Website.  The Fifth Blog Post continued to be posted in another website (the Second Website) three months after the Orders.  The defendant applied for recusal alleging that no judge of the Court is impartial.

Issue:

Whether the judge should be disqualified  by reason of the appearance of bias.

Applicable Law:

Uniform Civil Procedure Rules 2005 (NSW) r 10.14 - provides the rules for ordering a substituted service.

Johnson v Johnson (2000) 201 CLR 488 - provides the test for determining whether a judge is disqualified by reason of the appearance of bias.

Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890 at [58]- [62] - provides that an application for a  judge to recuse themselves for bias is based upon something that the judge has said or done.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63  - illustrates how apprehension of bias principle is applied.

Analysis:

The plaintiff is understood to have been personally served as the orders were in the proper form issued by the Court.  The absence of a seal does not mean otherwise.  In applying the apprehension of bias principle, the things said must be decided by the judge who was led by other than legal and factual merits and that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. 

The plaintiff failed to point to any statement by a judicial officer which would affect their ability to determine the case in a neutral manner.  The statement by the plaintiff about judges did not lead to apprehension that the presiding judge may decide the case other than on its merits – judge determined earlier motion. 

Conclusion:

The court denied the application for recusal. The charge of contempt was sustained because once the defendant was ordered to remove the Fifth Blog Post, he did not remove the same and continued publishing. It is considered as a deliberate disobedience to the Orders.

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LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (16 June 2021)

Intro:-

The plaintiff claims that the provisions of the Foreign Influence Transparency Scheme Act 2018 (Cth) ("Act") respecting communications activity by a person who acts on behalf of a foreign principal burden the freedom of political communication which is implied by the Constitution, cannot be justified and are therefore invalid.

Facts:-

The plaintiff, LibertyWorks Inc, was incorporated in 2015 under the Associations Incorporation Act 1981 (Qld). It is described in the Amended Special Case as "a private think-tank with an aim to move public policy in the direction of increased individual rights and freedoms, including the promotion of freedom of speech and political communication".

The American Conservative Union ("the ACU") was established as a corporation in the United States of America for the promotion of political freedom and for the purpose of influencing politics and politicians in that country. A statement on the website of the ACU refers to its purpose as being to "harness the collective strength of the conservative movement and support the campaigns of conservative candidates". To this end the ACU organises and holds an annual multi‑day political conference in the United States called the "Conservative Political Action Conference" ("CPAC")

A Deputy Secretary of the Attorney-General's Department wrote to the President of the plaintiff in August 2019 concerning the upcoming CPAC event to be presented by the plaintiff and the ACU. The Deputy Secretary outlined the scheme of the Foreign Influence Transparency Scheme Act 2018 (Cth) ("the FITS Act"), and observed that the ACU would appear to fall within the definition of a "foreign political organisation" and therefore would be considered a "foreign principal" and that an event such as the CPAC event would appear to be a "communications activity". The plaintiff was asked to consider whether it was required to register its arrangements with the ACU under the scheme. Further correspondence followed, including a notice purporting to be given under s 45 of the FITS Act, which required information and documents which might enable the Deputy Secretary to determine whether the plaintiff was liable to register. The notice was not complied with and ultimately was not further pursued. The plaintiff has not to date registered under the FITS Act.

The object of the FITS Act is stated in s 3 to be:

"to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals."

Issues:-

a) Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

b) In light of the answer to question 1, what relief, if any, should issue?

c) Who should pay the costs of and incidental to this special case?

Analysis:-

The implied freedom, burdens and justification

The constitutional basis for the implication in the Constitution of a freedom of communication on matters of politics and government is well settled[46]. The freedom is recognised as necessarily implied because the great underlying principle of the Constitution is that citizens are to share equally in political power and because it is only by a freedom to communicate on these matters that citizens may exercise a free and informed choice as electors. It follows that a free flow of communication is necessary to the maintenance of the system of representative government for which the Constitution provides. The freedom operates as a constitutional restriction on legislative power and should not be understood to be a personal right.

The freedom is of such importance to representative government that any effective statutory burden upon it must be justified. That process commences with the identification of the purpose which the statute seeks to achieve. That purpose must be legitimate, which is to say compatible with the constitutionally prescribed system of representative government. If the statute does not have a legitimate purpose no further consideration will be necessary, for invalidity will be made out.

In addition to having the requisite purpose, the law must be shown to be proportionate to the achievement of that purpose. In order to justify a burdensome effect on the freedom a law must be a proportionate, which is to say a rational, response to a perceived mischief. A law will satisfy the requirements of proportionality if it is suitable, necessary and adequate in its balance. The parties' arguments on the Amended Special Case address these matters.

In Lange v Australian Broadcasting Corporation[55], the final question as to the validity of a law effecting a burden on the freedom was stated to be whether the burden is "undue" having regard to its purpose[56]. Whether that question should be determined by reference to a test of whether the law is "reasonably appropriate and adapted" or of whether it is "proportionate" was left open by the Court, as were the means by which those conclusions might be reached. But in McCloy v New South Walesa majority of this Court provided the answer, holding that the final question to be addressed is whether a law is a proportionate response to its purpose and that that is to be ascertained by a structured method of proportionality analysis. That approach has consistently been maintained by a majority of this Court in each of the cases concerning the implied freedom since McCloy and, more recently, it has been applied by a majority to the freedom guaranteed by s 92 of the Constitution.

A burden on the freedom.

The defendant concedes that the FITS Act, in its requirement of registration where communications activity is undertaken on behalf of a foreign principal, is effective to burden the freedom. The concession is properly made. Conditioning political communication to a requirement of registration is effective to burden the freedom. That is sufficient to require that the relevant provisions of the FITS Act be justified.

Purpose and legitimacy (Is the purpose (ends) of the law legitimate?)

The plaintiff identifies the purpose of the FITS Act as that referred to in s 3, namely to render transparent the fact that activities in the nature of political communication which are carried out by a person in Australia are undertaken on behalf of a foreign principal. The plaintiff submits that it is thereby to be inferred that the concern of the FITS Act is to overcome covert, deceptive or clandestine conduct.

Even on the plaintiff's somewhat narrower description of purpose, the FITS Act must be understood as one supportive of the processes necessary to our democracy. The Act seeks to ensure that those making decisions in government, those making political judgments, those involved in the election of candidates to the Commonwealth Parliament and other interested persons are aware of the true actors and interests concerned when statements are made or information is provided on political matters. So understood, not only is that purpose legitimate, as consistent with the constitutionally prescribed system of representative government, it serves to protect it. Such a purpose may be a very important factor in the justification of a law.

It should be noted here that, although the focus of argument in this Court was upon political communication on behalf of a foreign principal directed to the general public, the defendant, rightly, identified a purpose of the Act as being to minimise the risk of undisclosed foreign influence upon the integrity of governmental decision‑making.

The extent of the burden

The defendant correctly submits that whilst the extent of the burden effected by the requirement of registration in connection with communications activity is not relevant to the threshold question as to whether justification is required, it may assume some importance when considering what has to be justified and the questions to be addressed in that process. It most clearly assumes relevance to the question whether a law is necessary in order to achieve its purpose and to the question whether it is adequate in its balance, where the burden effected is considered in light of the importance of the purpose sought to be achieved.

It is instructive to observe what political communication is not affected by the relevant provisions of the FITS Act. As the defendant points out, the Act does not place any burden on a person in Australia engaging in political communication on their own behalf, unaffected by any relationship with a foreign principal. To illustrate this point it may be observed that if the plaintiff had not entered into an arrangement with the ACU it could have conducted the CPAC event without incurring an obligation to register.

Foreign governments and other foreign principals may also communicate ideas and information to those in the Australian political or governmental sphere or to the Australian public without registering so long as the ideas and information are communicated directly by them. It is only if they are communicated through an intermediary, which has the effect that the source of the ideas or information conveyed is disguised, that registration becomes necessary under the FITS Act.

Contrary to the plaintiff's submissions, the FITS Act, in its provisions respecting communications activity, does not operate directly on political communication and is not discriminatory. It does not prohibit political communication and does not seek to regulate its content. The FITS Act is directed to exposing the relationship between the person making the communication and the foreign source.

In submitting that the provisions of the FITS Act requiring registration have a deterrent effect on persons who might wish to engage in political communication, the plaintiff's submissions place some weight upon the criminal sanctions which are imposed for breach. True it is that criminal sanctions are imposed for failure to register or renew registration or failure to fulfil the responsibilities of a registrant in order to deter non-compliance. But the offences are not directed to the making of political communication; rather they are directed to ensuring that the exposure of the relationship between the maker and the foreign principal is achieved.

Proportionality analysis.

Suitability

The test of suitability requires that there be a rational connection between the purpose of the statute in question and the measures adopted by it to achieve that purpose. This is an enquiry which logic demands. In this case the purpose of minimising the risk of influence being exerted by foreign principals on Australia's political or election processes is sought to be achieved by measures which seek to make transparent the identity of the foreign principal on whose behalf the person making the communication or providing information intended to influence acts. Clearly, both disclosure by direct means and making publicly available the name of the person and their foreign principal through the process of registration have the requisite connection to the purpose of the FITS Act.

The question is not whether the FITS Act can be seen to have application to the plaintiff's circumstances. It is whether there is a rational connection between the statutory purpose and the requirement of registration. Clearly there is.

Necessity

This aspect of proportionality analysis involves the enquiry whether there is an alternative measure available which is equally practicable and at the same time is less restrictive of the freedom and which is obvious and compelling[84]. The test of reasonable necessity has consistently been applied in cases involving the implied freedom and in cases concerning the s 92 freedom, where it has been held to be a doctrine of the Court.

In circumstances such as these, if what is conveyed by way of political communication is further disseminated by those receiving or reading the communication the disclosure of the relationship between the person making it and their foreign principal may not be more widely published. Information or opinions which might be influential may gain currency within political discourse or public debate without the source of the communication being revealed. This is the very risk which the FITS Act seeks to prevent. Registration enables both the relationship between the person and their foreign principal and a description of the political communication undertaken by the person in that capacity to be matters of public record.

It may also be said that, in the nature of things, those persons most interested in, and capable of, subjecting to scrutiny the interests of a foreign participant in the political affairs of this country will be members of the commentariat, such as journalists. The skill and experience of the commentariat, if brought to bear, can ensure effective disclosure of the nature and extent of foreign interests at play in the affairs of this country that might otherwise remain undisclosed or dimly understood. The requirement of registration established by the FITS Act allows the commentariat to be alerted to the presence of foreign influencers in public affairs, and thus enables public debate to be informed in a way that would not be achieved by source disclosure to the recipients of a particular communication at the time of the communication.

Both disclosure and registration are necessary for the achievement of the FITS Act's purposes.

Adequacy in the balance

Recently it has been confirmed that a law is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by the adverse effect on the implied freedom. In this regard a powerful public, protective purpose assumes a special importance. The FITS Act clearly has such a purpose. The limited submissions made by the plaintiff on this topic do not deny that the purpose of the FITS Act is protective of Australia's political and electoral processes. That important purpose cannot be said to be outweighed by a burden on the freedom which is modest.

Conclusion:-

a) Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

Answer: No.

b) In light of the answer to question 1, what relief, if any, should issue?

Answer: None.

c) Who should pay the costs of and incidental to this special case?

Answer: The plaintiff should pay the defendant's costs.

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Victorian Legal Services Board v Thexton (contempt) [2021] VSC 357 (21 June 2021)

The respondent, a former solicitor, allegedly breached a Court order restraining him from law practice and representing himself as one entitled to engage in legal practice.  It is disputed whether or not the application for contempt should be dismissed on the ground of triviality.

Facts:

Glenn Thexton was suspended from law practice upon the appointment of Nick Curran, except under direct supervision of the latter.  Thexton then paid a locksmith to change the locks of the premises where his law practice was conducted which prevented the newly appointed manager from accessing files.  Thexton also made use of the Gmail address representing that he was still entitled to practice law.

The Board applied for him to be punished for civil contempt. Arndt, the landlord’s property agent, testified that Thexton requested to change the locks.  Upon discovery by Curran’s staff, Curran was informed and the latter made demands to Thexton and Arndt for access.  Thexton argues that the testimony of Arndt, against the former was filled with inconsistencies and the case against Thexton cannot be proved beyond reasonable doubt.

Issues:

  1. Whether respondent breached Court order restraining him from obstructing the manager of the respondent’s law practice
  2. Whether respondent breached Court order restraining him from advertising or representing being entitled to engage in legal practice
  3. Whether contempt application should be dismissed for triviality

 

Applicable law:

Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 75 - summons should particularize with sufficient clarity what was alleged against the respondent.

Legal Profession Uniform Law Application Act 2014  s 76(a) - provides the power of the Board to suspend certificate to practice law as an effect of the appointment of a new                                manager.

Rule 75  - where contempt is committed in relation to a Court proceeding, the application shall be made by summons specifying the contempt with which a respondent is charged.

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd & Ors [2003] VSC 201 - provides that contempt proceedings for breach of court order should not be brought for trivial matters.

Analysis:

Pursuant to the Rules, Thexton was provided with detailed evidence from the Board’s witnesses before the hearing.  The former did not demonstrate that the summons was unclear but instead emphasized Arndt’s role in changing the locks and denying Curran’s access.

The Board is well within their right to prohibit Thexton’s practice in light of Legal Profession Uniform Law Application Act 2014  s 76(a).  Thexton’s reliance on the case of Advan Investments is untenable because his actions clearly show a serious form of obstruction since it is in the nature of defiance of the Court’s Orders and had Curran spend a huge amount of time to access the Premises.

Conclusion:

The Board has proven that Mr Thexton is guilty of contempt of court for obstructing the Manager exercising his functions as manager within the meaning of s 364 of the Uniform Law because he caused the locks to be changed.  The Board failed to prove that he was in contempt of court for doing things that stated or implied, that he was entitled to engage in legal practice when not an Australian practitioner within the meaning of s 11 of the Uniform Law because he had not used his Gmail address in communicating with the public or their clients.

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Barlow v Narkev Investments Pty Ltd (Civil Claims) [2021] VCAT 600 (16 June 2021)

Applicant Laura Barlow went to Tom Philipps’ workshop to have the ruby from her ring removed but the ring was lost and dispute arose as to who lost the ring and what was the value of the ring.

Facts:

Applicant Laura Barlow possessed a ring with two stones: a diamond and a ruby. Since the ruby needed polishing, she went to respondent Tom Philipps’ workshop to have the ruby removed. Alleging that the ring was lost in Phillips’ custody, she claims $13,500.00 or half of its value. Phillips’ argues that Barlow left before giving the ring to the former who was writing its details on a packet. Barlow provided detailed evidence of their conversation after the occasion on which she visited the workshop with the ring which alleged that Phillips’ offered to pay $6,500.00 for the lost ring. Phillips became the bailee of the ring for the purpose of removing the ruby from the ring. As to the valuation of the Ring, Barlow provided reliable evidence of value such as (a) $3,800.00, the price paid for the ring in 2017; (b) $4,000.00 to $6,000.00, the auction sale estimate for the ring; and (c) $20,000.00, the estimate of the valuer Ms Crofts in 2006.

Issues:

  1. Whether or not respondent Tom Philipps’ is liable.
  2. Whether or not Ms Crofts’ valuation of the ring should be followed.

Applicable Law:

Victorian Civil and Administrative Tribunal Act 1998 ss 15B, 115CC - the proceeding is a ‘small claim’ because the claim is for less than $15,000.00

Analysis:

Respondent Philipps, being bailee of the ring, should prove that the loss of the ring occurred without any negligence on his part but failed to do so. Ms. Barlow was able to overcome Phillips’ denial of liability and achieve an outcome better than what Phillips’ proposed.

Conclusion:

The evidence of value, in sum, suggests that the ring should be valued at the time of its loss. The court orders Phillips to pay Ms. Barlow $9,000.00 Furthermore, the respondent must pay the applicant $9,000.00 plus $217.70 as reimbursement of the filing fee paid by the applicant, a total of $9,217.70.

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