AISLES NEWS

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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. 

Added a post 

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.

Added a post 

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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