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NAAJA’s Custody Notifcation Service Celebrating 12 months
NOTICEBOARD................................... 4 FROM THE PRESIDENT Sexual harassment in the legal profession................................ 6
PAGES 16–18
FROM THE CEO Society news and updates............. 8
Before the High court
Criminal Lawyers Association of the NT: A very difficult year, made ever more heartbreaking......................10
Police doorknocking in comparative and constitutional perspective Roy v O’Neill
PAGES 20–25
NT Women Lawyers: News and updates..........................12 NT Young lawyers: News and updates..........................14 NAAJA’S Custody Notification Service....................... 16
CAREERS Elias Recruitment: Six ways to ace a video interview............................26 HEALTH & WELLBEING Look after yourself during Mental Health Week......................28 INSURANCE Lawcover: Do you know it all?.....30 FINANCE legalsuper: Peer-to-peer mental health support..................34 Snapshot of the NT legal profession........................36 CASE NOTES Supreme Court judgments...........38 Family law judgments.................... 47 High Court judgments...................72 Federal Court judgments.............77
Before the High Court Police doorknocking in comparative and constitutional perspective: Roy v O’Neill.............20
LAW SOCIETY NT BALANCE EDITION 3|20
3
NOTICEBOARD
CONTINUING PROFESSIONAL DEVELOPMENT ADVANCING THE LEGAL PROFESSION IN THE NORTHERN TERRITORY
Need your typing done? Jen ny ’s Ty pin g S er v ice s Over 30 years Legal Secretary experience.
[FREE] CPD program update Due to external firewall systems interfering with members receiving email updates regarding upcoming CPDs, please ensure you check the Society’s website, social media pages and The Practitioner e-newsletter on a regular basis so that you don’t miss out!
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LAW SOCIETY NT BALANCE EDITION 3|20
Home based. Competitive rates. Word 365. Olympus DSS Player. No job too small. (07) 4124 1469 or colin.ehrlich1@bigpond.com
Conference and events Dates, times and information subject to change. Please check with organisers to receive the latest information regarding information listed below. Thu 10 September 2020 1.00 – 2.00 pm
Law Society NT CPD webinar free to attend online: 2020 Taxation Aspects of Estate Administration Click here to register
Save the date Fri 25 September 2020
NT Young Lawyers Golden Gavel @ Supreme Court of the Northern Territory
Save the date Wed 4 November 2020
NT Young Lawyers Trivia Fundraiser @ Lizard’s Bar & Grill
Save the date Thu 12 November 2020
Law Society NT AGM
Save the date Fri 20 November 2020
NT Women Lawyers AGM + End of year Event
Save the date Fri 27 November 2020
NT Young Lawyers AGM + Christmas Party
Save the date Fri 4 December 2020
Law Society NT Members’ Xmas Drinks – Dwn
Save the date Thu 10 December 2020
Law Society NT Members’ Xmas Drinks – Asp
FROM THE PRESIDENT
MARIA SAVVAS PRESIDENT LAW SOCIETY NT
Sexual harassment in the legal profession The recent allegations against Dyson Heydon has once again shone a spotlight on sexual harassment in the legal profession. Of course, the issue of sexual harassment in the legal profession isn’t new. A plethora of surveys and studies will tell you that this is a longstanding and clearly prevalent problem.
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Sexual harassment can take many forms ranging from sexually suggestive questions or comments through to inappropriate physical contact. There can be no doubt that sexual harassment in any workplace is detrimental. In 2013, the Law Council of Australia (LCA) conducted the National Attrition and Reengagement Study and found that 25% of women in a legal workplace experienced sexual harassment. More recent studies undertaken by other organisations across Australia indicate that the rates of sexual harassment in the legal profession are higher. In 2019, the Victorian Legal Services Board and Commissioner’s report on Sexual Harassment in the Legal Sector found 36% of legal professionals reported having experienced sexual harassment while working in the legal sector. Further, the International Bar Association global survey (Us Too? Bullying and Sexual Harassment in the Legal Profession) found that 47% of the female lawyers
and 13% of the male lawyers who responded to the survey from Australia reported having experienced sexual harassment. It is suggested that the culture of the legal profession and the profession’s historical attributes are in part responsible for the prevalence of sexual harassment. Again, these theories are borne out by several studies which show that the following factors contribute to the risk of sexual harassment in our profession: ●● Power imbalances between colleagues. ●● The underrepresentation of women in senior leadership positions. ●● Male-dominated workplaces. ●● Competitive environments. ●● Workplaces which focus on commercial gains and overlook the wellbeing of individuals. This culture has been established over centuries which must necessarily mean that sexual harassment has been
commonplace over a significant period of time. It can’t reasonably be suggested that we don’t know that it exists and feign shock and surprise when we hear about it on the news. The question is, what do we do about it? Before we can change the deeply embedded and accepted culture that exists within many legal workplaces, we need to acknowledge our shortcomings and talk openly about the problem more frequently. Only then, as a profession can we come together to discuss avenues for solutions. Clearly and perhaps understandably, lawyers and others who work in legal workplaces, have been and continue to be reluctant to report or make a complaint of sexual harassment. It’s hoped that victims of sexual harassment are properly supported to come forward to report sexual harassment but it should not be suggested that this is the only mechanism to address the issue. With the rate of reporting being so low (reportedly one in five), it’s clear that we need to take additional action. Such action may include: ●● Supporting an amendment to our professional conduct rules to explicitly include sexual harassment as form of professional misconduct; ●● Impose duties and obligations to report misconduct; ●● Mandatory sexual harassment education including in the form of CPD; ●● Encouraging legal practices to review existing or adopt sexual harassment policies and actually enforce them; and
●● Encourage senior leaders in legal practices to regularly consult with staff about sexual harassment. The Society is currently working with the LCA to advocate for Federal legislative reform to the Sex Discrimination Act 1984 and to develop a national model sexual harassment policy and guidelines which can be used as a guide. The LCA, with the input of law societies across Australia, is also proposing to put together a centralised source of information about responding to and managing sexual harassment. The objective must be to work collectively to stamp out sexual harassment in the legal profession. If you have been effected by sexual harassment, you can contact any of the below services for assistance: ●● ●● ●● ●● ●● ●● ●● ●● ●● ●●
SAVE THE DATE
Members’ Christmas Drinks Darwin Friday 4 December 2020
Alice Springs Thursday 10 December 2020 Updates will be provided via the Society’s website, social media pages and The Practitioner e-newsletter.
NT Police Law Society NT NT Bar Association Employee Assistance Service Australia Anti-Discrimination Commission Top End Women’s Legal Service NT Women Lawyers Association Darwin Community Legal Service Fair Work NT WorkSafe
maria.savvas@savvaslegal.com
LAW SOCIETY NT BALANCE EDITION 3|20
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FROM THE CEO
KELVIN STRANGE CHIEF EXECUTIVE OFFICER LAW SOCIETY NT
Society news and updates The three months since the last edition of Balance has seen the legal profession impacted by many issues but none more topical or relevant than the worrying issue of sexual harassment in the legal profession and the continuing impact of COVID-19. The recent sexual harassment revelations at the highest level of our profession will hopefully continue to reverberate until there is real and permanent change. There are early good signs that the profession’s response will result in such change and I am hopeful we can become a profession with workplaces free from any form of harassment. The momentum of the past few months must continue. The Society has continued to deal with the impact of COVID-19 by modifying its approach to undertaking its operations as appropriate. The Society’s office reopened in June and most, if not all, of its operations and services have continued unaffected.
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The annual practising certificate renewal process has been completed and the Secretariat’s focus is now on finalising end of year accounts, the finalisation of trust account audits, preparing this year’s Annual Report and early preparation for the AGM. Whilst on the subject of the AGM, I urge you all to start thinking about whether to nominate for a role on the Society’s Council or for membership of one of its Committees next year. The reaction to the Society’s free CPD program has been very positive with Zoom proving very popular and increased number of attendees. Please also note that in response to issues raised by members, this and future editions of Balance will be published on the Society’s website. The Secretariat has recently welcomed two new members of staff with Des Crowe joining as a Complaints Investigator in July and
Kieren Ko commencing in the role of Regulatory Services Solicitor in early August. These roles have been created in recognition of the importance of the Society’s regulatory functions and the need to deal with complaints and disciplinary matters generally in a timely fashion. It’s the day before the Northern Territory election as I write this and I cannot help but to ponder on the outcome and impact of the election on the legal profession and wider community. What is important however is that, no matter the outcome, the Law Society on behalf of the legal profession, continues to have a seat at the government table and to be heard. Hopefully we are also inching closer to being able to resume normal social activities and that there will be opportunities to discuss the election outcome and other things. Finally I remind members to feel free to raise any issues concerning the profession with me at any time.
(08) 8981 5104 ceo@lawsocietynt.asn.au
Recent Law Society NT advocacy and activities Criminal Justice Forum
02/06/20
Media: Don Dale Detention Centre Use of Tear Gas – High Court of Australia Ruling
04/06/20
Submission: Draft Practice Directions – Alice Springs Specialist Approach to Domestic Violence (Chief Judge NT Local Court)
15/06/20
Darwin Correctional Services quarterly meeting
15/06/20
NT Business Council meeting
18/06/20
Conference of Law Societies
26/06/20
Law Council of Australia Director’s Meeting
27/06/20
NT Legal Aid Commission 30 year anniversary
16/07/20
Conference of Regulatory Officers
02/07/20
NT Business Council meeting
16/07/20
National State/Territory Regulators Inaugural meeting
29/07/20
Criminal Justice Forum
04/08/20
NT Business Council meeting
20/08/20
NT legislation
INTRODUCED
PASSED
Firearms Legislation Amendment Bill 2020*
19/02/20
—
Planning Amendment Bill 2020**
13/02/20
25/06/20
Justice Legislation Amendment (Domestic and Family Violence) Bill 2019**
28/11/19
25/06/20
Return to Work Legislation Amendment Bill 2020**
19/02/20
24/06/20
Sexual Offences (Evidence and Procedure) Amendment Bill 2019**
28/11/19
24/06/20
Ports Legislation Amendment Bill 2019**
28/11/19
24/06/20
Judicial Commission Bill 2020**
13/02/20
23/06/20
Transport Legislation Amendment Bill 2020
13/02/20
23/06/20
Treaty Commissioner Bill 2020
12/02/20
23/06/20
*
Private Member’s Bill: Bill lapsed because Parliament prorogued on 30/07/20
** Amendments made. Legislation information sourced 10.28 am, 21/08/2020 from: https://legislation.nt.gov.au/en/LegislationPortal/Bills/By-Session
LAW SOCIETY NT BALANCE EDITION 3|20
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CL ANT
MARTY AUST PRESIDENT CRIMINAL LAWYERS ASSOCIATION OF THE NORTHERN TERRITORY (CLANT)
A very difficult year, made ever more heartbreaking 2020 has been a particularly difficult year. We have been dealing with the flow on effects of a global pandemic which has resulted at times in restrictions that have impacted upon the manner in which our courts and criminal justice system undertake our core business. We face an uncertain short-term future, in particular with regard to interstate and international travel. This has disrupted a number of events that CLANT would normally host or sponsor and unfortunately events such as the Tony Fitzgerald Memorial Lecture 2020 and the Children’s Court Practitioner’s Conference 2020 have both been cancelled. It is almost certain that out biennial Bali Conference in 2021 will need to be relocated and held on home soil. The committee is currently determining when, how and where our conference will
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convene. This task will be made all the more difficult as it will need to be organised without our much loved Lyn Wild. For almost 30 years, Lyn was the principal organiser, promoter, administrator, trouble shooter and much-loved mum of the Bali conference. The Bali conference has long been a much anticipated social fixture for bar and bench. It has been a forum for the exchange of views and the generation of ideas in relation to pressing legal and policy issues in our criminal justice system. Thanks to Lyn’s leadership, skill and tenacity the conference has also been a particularly successful commercial venture, which has resulted in the ongoing financial security of CLANT, and enabled us to donate substantial sums of money to support various worthy cases and causes.
In 2015 Lyn was made an Honorary Life Member of CLANT and to date she remains the only such appointment of the Association. At that time Lyn had already been diagnosed with breast cancer and commenced treatment, but she continued her role as conference organiser, ably supported and assisted by Dee Berkley, in 2017 and 2019. Unfortunately last week,1 after a long and brave fight, our dear friend passed away. It is hard to imagine our CLANT conference without Lyn’s welcoming smile, patient guidance and indefatigable direction. We have relied on her to wrangle everyone from over-excited guests and overbearing dignitaries to over-zealous officials. We have leant on and at times cried on Lyn’s broad shoulders. Whatever the future holds for the Bali conference, its past is inextricably linked to the extraordinary contribution of Lyn Wild. Our hearts go out to all the Wild family, especially our fellow CLANT stalwarts Rex, Beth and Matt.
0421 782 339 www.clant.org.au @Crim_Lawyers_NT
1. As at the time of writing this article.
Call for volunteers Pro Bono Clearing House (PBCH) The aim of the Society’s PBCH is to connect members of the public needing pro bono assistance with NT legal practitioners able to provide that assistance. Whether you’re a new lawyer wanting practical skills to build your career or a senior lawyer looking to re-energise yourself in an area of law that’s important to you—volunteering your time to provide assistance to those that are disadvantaged and cannot afford legal support is a fulfilling, valuable experience. To find out more about the PBCH and how you can help make a difference, please contact the Law Society NT:
spo@lawsocietynt.asn.au (08) 8981 5104
NT WL A
TRACI KEYS PRESIDENT NORTHERN TERRITORY WOMEN LAWYERS ASSOCIATION (NTWLA)
Women lawyers news and updates Dear NTWLA members and friends, COVID-19 demanded we all redesign and adapt our lives. And we did. We tackled the challenges and capitalised on the many new opportunities. The NTWLA Committee, like others, had to quickly re-design and re-direct its energy to develop new plans for 2020. With this came greater opportunities to run events that all our members could participate in wherever they live and work, and this is exciting. My heartfelt thanks goes to the Committee for their resilience and creativity through this time.
I also want to say a big thank you to all our loyal members for your patience and continued support of NTWLA as we navigated our way through the changes. I believe our new plans will justify your wait.
NTWLA events Our first event was a breakfast with Judge Day Huntingford with Alice Springs members. This was a well-attended event. The faces in the photograph pictured reveal how positive a catch up it was. We thank Her Honour for giving up her time to support NTWLA. Our next event was a response to sexual harassment allegations
revealed against former High Court Judge, Justice Heydon, which put a spotlight on sexual harassment in the profession. Australian Women’s Lawyers responded very quickly releasing a seven point plan. Locally, we were also quick to start discussions with the Society about responding with a CPD on sexual harassment. This culminated in a joint initiative to run a free panel discussion on Sexual Harassment in the Legal Profession. This was a streamed event, allowing practitioners to attend across the NT. Registrations and attendance were high. I spoke on this panel as the Director of the Anti‑Discrimination Commission, and was joined by Society President, Maria Savvas; Director of the Northern Territory Working Women’s Centre, Nicki Petrou; and, Senior Solicitor of the Top End Women’s Legal Service, Caitlin WeatherbyFell. Representing NTWLA as our capable facilitator was former President, Bronwyn Haack.
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NTWLA has arranged with the Lucky Bat Café to stream the conference on their new big screen. Also in September will be our Mentoring Pilot, speed‑dating style! This is an opportunity to either mentor someone bright and upcoming, or to be a mentee and meet that someone who can help direct your career where you want to go. Check it out on our Facebook page (listed below).
NTWLA membership
The feedback has been very positive and I am hopeful this will be the start of a longer conversation and we can continue to work on this important issue with the Society. We also held in August our first face-to-face Lunchbox CPD in the Local Court, aptly looking at Working in the Courts. We had members in Alice Springs and Darwin with speakers on each end. We had a panel made up of:
Lastly it is time to renew membership if you have not done so already. We have a special deal for renewing members of $35 ($15 concession) or for new members $50 ($25 concession) with a 10% discount for new members referring another new member. Opportunities to sign up will be available at the Lucky Bat Café, otherwise send us an email via ntwomenlawyersassoc@gmail.com and we can send through the details. Enjoy the last remaining days of the dry season, stay well and I hope to see you at one of our events. Yours,
●● Deputy Chief Judge Fong Lim, Darwin ●● Rebecca Plummer A/Executive Director of Courts and Tribunals, Darwin ●● Maria Le Breton Domestic Violence Registrar, Alice Springs This was both fun and insightful. I am very grateful to each of the speakers for their honesty and giving us their time. I also want to acknowledge the use of the Local Court and their facilities; that enabled this event to be possible. Please let us know if there are other topics you would like us to cover in their series and we will see if we can assist.
Coming up Also coming up is our AWL conference. This is a bi‑annual conference that is traditionally run in person in a capital city. This year due to COVID-19 it is being run online and is free. I will talk more about this in my next contribution to Balance.
Traci Keys President, NTWLA ntwomenlawyersassoc@gmail.com @ntwomenlawyers
NTWLA 2020 EVENTS CALENDAR BUILD-UP & WET SEASON – HEALTH + WELLBEING
SEPTEMBER Event – Women’s Health Week (Alice Springs & Darwin)
OCTOBER CPD - TBA (Alice Springs & Darwin)
NOVEMBER Patron’s Drinks (Alice Springs) “You Can’t Ask That” Patron’s Drinks (Darwin) NTWLA AGM + End of Year Event Friday 20 November 2020 (Alice Springs & Darwin)
LAW SOCIETY NT BALANCE EDITION 3|20
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NT YL
SARAH STRZELECKI PRESIDENT NORTHERN TERRITORY YOUNG LAWYERS (NTYL)
Young lawyers news and updates The NTYL are committed to providing quality resources and events to our members and we hope that you all are ready for what is in store for the rest of 2020! Working from Home Guide In May 2020 the NTYL Committee created a working from home guide with tips and tricks on how to improve productivity and maintain sanity as you grapple with merging your home and your office during COVID-19. You can find this guide on NTYL’s page on the Society’s website. This guide was such a hit that the South Australian Young Lawyers approached us to use our guide for SA young lawyers!
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Mentorship Program The NTYL Committee, in partnership with the Society, has established a working group to develop a mentorship program for young lawyers in the Territory. The program would see young lawyers connected with senior members of the profession who could provide insight into professional practice and advice on career development and other matters. We are seeking expressions of interest from members of the profession who have five years post admission experience in a practicing or non-practicing role who may be interested in becoming involved as a mentor for a period of twelve months commencing in early 2021. Please submit your expression of interest to: mentorship@lawsocietynt.asn.au by 4 September 2020. If you have any questions about the program or becoming a mentor, please contact Victoria Bell at vbell@tgb.com.au.
“What the hell am I doing here?” A discussion with Jodi Truman Committee member Kirralee organised a fantastic CPD with the amazing local barrister Jodi Truman. Jodi’s discussion on mental health issues that face young lawyers in our profession was extremely needed during this time and it was evident by the turn out and the important questions asked.
Events coming up!
Want to get involved?
With the NT’s COVID restrictions easing up, the NTYL Committee are busy planning some events in the coming months for our members to enjoy. This will include our annual fundraiser Trivia night and the local Golden Gavel. The Committee is also busy preparing more CPDs and online resources to support our members; make sure you’re on our mailing list if you want to stay updated!
You don’t need to be a member of the committee to participate in planning events and creating resources. Send us an email via NTYL.Committee@gmail.com to see how you can get involved!
We were pleased that with the sponsorship of Hall & Willcox we were able to team up with Jodi to present this CPD a second time online via Zoom to all of our regional members including in Alice Springs and Tennant Creek.
●● Golden Gavel Friday 25 September 2020 Supreme Court
Thank you to Jodi for her fantastic insight and sharing her wisdom and to Hall & Willcox for their support.
●● AGM and Christmas Party Friday 27 November 2020
Email the Law Society NT to become a member today!
NTYL.Committee@gmail.com @NTYLpage
●● Trivia Fundraiser Wednesday 4 November 2020 Lizards Bar and Grill
ADMISSIONS CEREMONY
7 JULY 2020 SUPREME COURT OF THE NORTHERN TERRITORY
Lezandre Van Wyk, Demitrios Christou, John Piening, Christopher Teng, Kyla Pajarillo, Jean-Remi Campion, Bradie Mercer, Bettina Kobelt, Jake Dal Santo LAW SOCIETY NT BALANCE EDITION 3|20
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LOCAL NEWS
STEPHEN KARPELES CUSTODY NOTIFICATION SERVICE COORDINATOR NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY
NAAJA’S Custody Notification Service Celebrating twelve months of operation in the NT Twelve months ago, with little fanfare, regulation 19B was inserted into the Police Administration Regulation. And so commenced the Custody Notification Service (CNS) in the Northern Territory. The CNS was one of 339 recommendations handed down by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) in 1991 as a means of reducing the over-representation of Aboriginal people in custody throughout Australia and ensuring justice, humanity and equality for Aboriginal people in police custody. The recommendation seeks to achieve these goals by connecting Aboriginal and Torres Strait Islanders (ATSI) in police custody with an Aboriginal Legal
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Service to provide them with support and early legal advice about their rights in custody. In 2000, NSW and the ACT were the first jurisdictions in Australia to implement the service. Since that time there has been only one Aboriginal death in police custody1 in those jurisdictions and this occurred in 2016 when police failed to notify the CNS. Despite having the highest proportion of ATSI people in Australia, and incarcerating them at a greater rate than any other jurisdiction, prior to the CNS, the NT provided the least statutory protections for Aboriginal people in police custody. In contrast to other jurisdictions in Australia, which require police to specifically inform ATSI people of their right to speak to a lawyer or legal service, police in the NT were only obliged to inform them they could speak to a “friend or relative about their whereabouts”2 and were not required to notify anyone of their incarceration. Additionally in the NT, there is no clearly defined time
limit on how long police can keep a person in custody without review by a court.3 This meant that Aboriginal people could disappear into police custody for days without anyone knowing where they were. It took a recommendation from the 2018 Royal Commission into the Protection and Detention of Children in the Northern Territory that the CNS be implemented in the NT to spur the commonwealth and Northern Territory Governments (NTG) into action. That year, the Commonwealth Minister for Indigenous Affairs Nigel Scullion announced three years of Commonwealth funding for a CNS in the NT. The offer was conditional on the support of the NTG and the introduction of legislation to entrench this hard won right, as well as a commitment from the NTG to fund the service after the commonwealth funding expired. NAAJA was selected as the service provider and the NTG agreed to introduce regulation with a promise of legislation to follow. The scaled-back regulation commenced on 31 July 2019. It requires the NT Police to inform every ATSI received into custody that NAAJA will be notified of their detention, and as soon as reasonable practicable after this, the police must notify NAAJA that the person is in their custody. The regulation excludes from the ambit of the CNS people in custody pursuant to s133AB or s128 of the Police Administration Act4, and does not expressly require the police to facilitate communication between the NAAJA staff member and the person in custody at the time of notification.
Experiences from the past twelve months At the time of writing, the service is comprised of two full-time lawyers and six highly trained and experienced Client Support Officers, five of whom are Indigenous. This means that more often than not, Aboriginal people in custody are able to speak to, and be supported by, one of their mob. This makes a real difference. Over the past twelve months the service received 7579 notifications, and spoke to 5281 Aboriginal people in custody. Of those, 776 were youths — some as young as ten years of age. Many were rendered vulnerable by disability, injury, chronic health ailments or their limited English speaking ability. All were provided with advice, information and support which, but for the CNS, they are unlikely to have received.
The CNS provides: Health and wellbeing check The health and wellbeing check administered by CNS staff is meant as an additional layer of protection to ensure that Aboriginal people in police custody are given medical attention if required and that any injuries attributed to police conduct are documented. As an example of the positive outcomes from this process, during a health and wellbeing check, an Aboriginal female disclosed to a CNS staff member that she had been the victim of a recent sexual assault but was reluctant to provide this information to male police officers. The CNS staff member worked with the client and police to ensure she was released from custody and taken to hospital for a sexual assault examination. Connection with family and friends The CNS staff frequently contact family members at the request of people in custody, to inform them of their whereabouts and provide them with information about the criminal justice process. In addition to this, NAAJA CNS recently set up a separate 24-hour phone line for family members to call if they are worried for, and wanting information about, a relative taken into police custody. Reassurance Many of the people we speak to do not understand why they are custody, or how long they will be there for. This often creates anxiety, frustration and hostility. Some have disclosed suicidal thoughts. Our trained staff provide information, reassurance and support which can often ease the person’s concerns. CNS staff ensure that people expressing suicidal ideation are marked at risk by police to ensure close monitoring. Referrals Over the previous twelve months CNS staff have made 5832 referrals to different services to assist Aboriginal people upon their release from police custody. These referrals have included organisations providing crisis accommodation, AOD services, counselling, mental health services and assistance with ‘returns to country’.
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LOCAL NEWS
Early legal advice and information CNS staff ensure Aboriginal people in custody understand their rights, including amongst other things, the right to apply for bail or review of a decision by police to refuse bail, the right to silence, the requirement of a responsible adult to attend the watch house for youths, limitations on time spent in custody for youths or people in custody for service of a DVO. Where necessary, CNS staff will assist people to exercise those rights. This is often done with the assistance of a qualified interpreter. What is not widely understood, even by criminal lawyers, is the extent to which extensive police powers are exercised in the watch house with little or no scrutiny. The CNS has changed this and, in effect, prised open the door to the watch house, to shine a light on police practices.
Ongoing challenges The CNS cannot provide any assistance to Aboriginal people in custody unless police promptly notify the service, and facilitate communication between the CNS staff member and the person in custody. While the NT Police Commissioner and senior police have been supportive of the service, this attitude does not extended to all of its members. A number of officers in the police stations and watch houses have openly expressed their antipathy towards the service and have either failed to notify the CNS, failed to facilitate communication between the CNS and the person in custody or delayed the notification until after the person has been required to exercise their legal rights. Whether advertent or not, the end result is that about 30% of ATSI people in police custody are being denied their right to speak to a CNS staff member. Egregious examples of non-compliance have been referred to NAAJA civil lawyers for advice and assistance, and evidence obtained by police as a consequence of non-compliance will be challenged by NAAJA criminal lawyers when the matter reaches court.5 This non-compliance casts an unfortunate shadow over the otherwise helpful assistance provided by most notifying officers.
the CNS, and that this has hampered their ability to facilitate communication between the person in custody and the CNS and to provide reliable data to allow assessment of compliance. What is readily apparent though from the experience of the past twelve months is that the best outcomes for the Aboriginal people in custody occur when police and CNS staff work together.
Conclusion Commonwealth funding for the service expires in less than eighteen months leaving the service’s future uncertain in the current fiscal and political environment. In 2018, the Royal Commission into Youth Detention and Child Protection in the Northern Territory also recommended that the NTG fund the CNS when the commonwealth funding expires. To date, no funding commitment has been provided by the NTG, nor have they delivered on their agreement to entrench the CNS through legislation (as opposed to regulation). Against the backdrop of the findings of the RCIADIC, and the recent societal demands for an end to the mistreatment and discrimination of Aboriginal people in police custody, the introduction of legislation to entrench this fundamental legal right and a commitment to fund the CNS would be seen as a clear statement by the NTG that ‘black lives do matter’.
Endnotes 1. At a police station or watch house 2. See s140 3. See s137(2) of the Police Administration Act which allows police to keep a person in custody for a “reasonable period of time”. Note that this has now been amended for youths (see s137(4) of the Police Administration Act) 4. Colloquially known as ‘paperless arrest’ and ‘protective custody’ respectively 5. At the time of writing there have been no rulings in the Supreme Court on admissibility of evidence in contravention of the CNS regulation.
Over the past twelve months there has been a steady increase in notifications. This demonstrates that a culture change is underway within the NT police and that the CNS is becoming an accepted part of the custody process. It must be acknowledged that police did not receive any additional funding to implement
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Darwin: (08) 8982 5100 www.naaja.org.au @NAAJA_NT
‘The truth and Andrew Boe’ Late Night Live with Phillip Adams, ABC
Indigenous Incarceration and the NT 18/08/20: the Law Council of Australia presented a panel discussion via Zoom on the topic of Indigenous Incarceration and the Northern Territory: Progress since the Royal commission into the Detention and Protection of Children in the Northern Territory. Panelists included advocate Mick Gooda, Olga Havnen (Danila Dilba Health Service) and David Woodroffe (North Australian Aboriginal Justice Agency and President of the Aboriginal Lawyers’ Association of the NT). The discussion was moderated by Law Council President, Pauline Wright. Watch the discussion here: https://www.lawcouncil. asn.au/media/news/ indigenous-incarcerationand-the-northernterritory
Throughout a career spanning thirty years, criminal lawyer Andrew Boe as respresented high profile clients including One Nation’s Pauline Hanson, David Eastman and serial killer Ivan Milat.
Boe has published a book entitled An exposé of imperfect justice: The truth hurts and is a sobering account of the faults that lay within the justice system. It’s sure to be an interesting read.
Murderers and politicians aside, Boe as also represented many disadvantaged people — those with poor mental health, abused women, Indigenous and homeless people and has been exposed to more emotionally corrosive subjects than can be imagined, stumbling along the way.
Listen to the ABC talk here: https://www.abc.net.au/ radionational/programs/ latenightlive/the-truthabout-andrew-boe/12547558 Or, read more about An exposé of imperfect justice: The truth hurts here: https://www. hachette.com.au/andrewboe/the-truth-hurts
Calling for expressions of interest Legal assistance for people engaging with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability NT Legal Aid Commission is working in partnership with the Your Story Disability Legal Service to establish a local list of practitioners to assist people called by the Royal Commission to appear as a witness, attend an interview or provide information to it. When a person doesn’t have a preferred lawyer to represent them, Your Story will refer them to the Referral List. NT Legal Aid Commission is inviting practitioners to express interest in being included on this Referral List. EOI should be submitted by 7 September 2020. Further information can be found here: https://tinyurl.com/y2npp22y
INDEX CATEGORY
Julian R Murphy*
Before the High Court Police doorknocking in comparative and constitutional perspective: Roy v O’Neill This paper was first published in (2020) 42(3) Sydney Law Review, Advance Republished with permission of author Electronic copy available at: https://ssrn. com/abstract=3673695
Abstract Roy v O’Neill, currently before the High Court of Australia, raises the question of whether a police officer can knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so. In order to resolve that question, the High Court will need to develop, or at least refine, the common law relating to trespass and implied licences. This column explores two issues relevant to the development of the common law in this area, namely: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia.
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I Introduction The questions raised by Roy v O’Neill,1 currently before the High Court of Australia, are so fundamental that it is surprising they have not previously been definitively answered. Can a police officer knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so? In this situation, can the police officer claim the cover of the same implied licence extended to the door-to-door salesperson or the Jehovah’s Witness? Or is the police officer’s attendance so different that they are a trespasser? Unsurprisingly, the parties’ written submissions on these questions focus on the Australian case law of trespass and implied licences.2 The parties join issue on the principles to be extracted from the authorities relating to dual purposes for attendance and multiple occupancy residences. The authorities on these issues are not entirely in agreement,3 and
thus it appears likely that the Court will be required to develop the common law in order to resolve the dispute in Roy. This column raises two considerations — neither considered in detail by the parties — that ought to inform the Court’s development of the common law in this area: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia. Ultimately, it is suggested that the High Court should develop the common law cognisant of the scope for reasonable disagreement as to the balance to be struck between public safety, personal privacy and individual property rights. Such an approach has constitutional considerations to recommend it where, as in the present case, the universalising force of the single common law has the capacity to render obsolete the balances struck by different state and territory legislatures within the Federation.
II A knock at the door At lunchtime on a Friday in April 2018, three police officers attended the public housing compound in which Ms Roy lived with her partner, Mr Johnson, in Katherine in the Northern Territory.4 Ms Roy was subject to a domestic violence order which prohibited her from, among other things, remaining in Mr Johnson’s company when she was intoxicated. On the day police attended Ms Roy’s residence, they had no specific information to ground a suspicion that Ms Roy was breaching her domestic violence order. Rather, the police were conducting proactive domestic violence order checks as part of a wider domestic violence prevention operation. Ms Roy and Mr Johnson lived in a unit within a duplex building within the public housing compound. A perimeter fence surrounded the entire compound, albeit without a locked gate. Access to the unit’s front door, which was situated in an alcove, was via a concrete path. When police attended, one of the officers knocked on the flyscreen door and, seeing Ms Roy and Mr Johnson inside, called Ms Roy to the door for the purpose of a domestic violence order check. As Ms Roy approached the door, the officer noticed her to be lethargic and showing other indicia of intoxication. The officer asked Ms Roy to submit
to a handheld breath test, which returned a positive result. Ms Roy was then arrested and taken to the police watch house. There was no evidence that the police entered the unit or interacted with Mr Johnson at all. The entire interaction appears to have taken place on the doorstep, or in the alcove, of the unit’s front door. Ms Roy was charged with a single count of breaching a domestic violence order. In the Local Court of the Northern Territory, the charge was dismissed on the basis that the police were trespassers and thus that the Prosecution evidence was unlawfully or improperly obtained. The Supreme Court of the Northern Territory dismissed a Prosecution appeal, concluding that ‘[t]o hold otherwise would be an Orwellian intrusion into the fundamental rights of privacy that the common law has been at great pains to protect and would amount to a new exception to the common law.’5 The Court of Appeal of the Northern Territory allowed a further Prosecution appeal, holding that there was an implied invitation to these visitors (albeit police officers) to walk up the path leading to the entrance to the dwelling (the threshold of the home) in order to knock on the door and undertake lawful communication with someone within the dwelling.6 The High Court granted Ms Roy special leave to appeal, with Edelman J noting at the hearing: ‘there are courts across the world that are dealing with this issue and splitting as to the result and the manner in which it should be dealt with’.7
III Common law divergences abroad In the parties’ written submissions in the High Court appeal, the decisions of ‘courts across the world’ receive relatively brief treatment.8 This is not surprising. Each party has more to gain from attempting to frame the local case law as recommending a result in their favour. However, this column starts from the position that the Australian authorities do not determine the issue in Roy, and thus the High Court will have to develop the common law of Australia. If that is so, then there are good reasons9 to think that the Court might gain assistance from the way in which the apex courts of comparable jurisdictions have dealt with this same issue. Accordingly, this section of the column outlines
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the thrust of the case law from the United Kingdom (‘UK’), New Zealand (‘NZ’), Canada and the United States of America (‘US’). This outline reveals the scope for reasonable disagreement about the appropriate balance to be struck between public safety, personal privacy and individual property rights. Of the jurisdictions considered here, the UK is that which most readily implies a licence in favour of a police officer attending an unobstructed front door in order to investigate an occupier. This position was first clearly expressed in Robson v Hallett,10 where it was considered to be of no significance to the scope of the implied licence that the attendees were police officers investigating the occupier for the potential commission of a criminal offence. That such an attendance fell within the implied licence was said to be ‘so simple’ as to not require reference to authority.11 Subsequent cases have given the issue similarly summary treatment,12 although at least one UK court has acknowledged the ‘theoretical … force’ of an argument to the contrary.13 The upshot is that, while the point of principle appears to be deeply embedded in UK case law, it has not been the subject of elaborate justification.14 The course of the authorities in NZ is more interesting. A convenient starting point is the 1987 decision of Howden v Ministry of Transport,15 where, after consideration of Robson, it was held that there was no implied licence for a police officer to attend upon a person’s
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driveway in order to conduct a ‘random’ breath test. Acutely aware of the matters of ‘private property’ and ‘privacy’ at stake, Cooke P refused to recognise an implied licence because it could not be clearly maintained that ‘[m] ost New Zealand householders’ would have consented to police attendance in the circumstances.16 Cooke P’s framing of the question — essentially holding that the attendee bears the onus of persuading the Court that most householders would consent to police attendance in the circumstances — was also influenced by the limited ability of courts, as compared to legislatures, to estimate the majority views of the public.17 Around the turn of the 21st century, implied licence arguments rose to prominence in a number of NZ judgments,18 some of them difficult to reconcile with the reasoning of Cooke P in Howden. The burden of the NZ authorities appears to be, however, that a licence will be implied for police to attend at a person’s unobstructed front (or back) door where they have dual purposes, one being investigatory and the other being communicative.19 Thus, in 2010, the Supreme Court implied a licence in favour of an undercover police officer attending the front door of a residence to ask to purchase drugs, notwithstanding that the officer was also covertly recording the interaction.20 Just a year later, however, the Supreme Court explained that such a licence will only be implied where there is a ‘genuine’ ‘purpose of communicating
with the owner or occupier’.21 What is especially interesting about the recent NZ authorities is the willingness to engage with explicit considerations of ‘common convenience’,22 ‘welfare of society’23 and ‘matter[s] of social and legal policy’.24 Direct resort to policy is apparently justified in NZ because the implied licence is now considered a legal ‘fiction’25 and ‘an invention of the common law to reflect the balance between respect for an individual’s right to privacy, and the public interest in enforcement of the criminal law’.26 That being so, NZ courts no longer consider themselves bound, as Cooke P did in Howden, by objective inquiries as to what ‘[m]ost New Zealand householders’ would have consented.27 This has led to results which would probably be at odds with the expectations of most NZ householders, including implied licences extending to highly orchestrated police operations.28 In Canada, where implied licences often arise in litigation concerning the right to be free from unreasonable searches and seizures, the position is very different. There, as recently as 2019, a majority of the Supreme Court of Canada has refused to recognise an implied licence for police to attend on a person’s property for the purpose of ‘communication’ where police also have a ‘subsidiary purpose’ of securing evidence against the person.29 Such a subsidiary purpose would amount to ‘speculative criminal investigation, or a “fishing expedition”’.30 The majority in R v Le held that the ‘doctrine of implied licence was
never intended to protect this sort of intrusive police conduct’.31 The provincial courts have also been largely consistent in holding that an investigatory purpose will disqualify police from relying on an implied licence, even where the purpose can also be described as communicative.32 In the US, while the Supreme Court is not usually responsible for developing the common law of tort, some of its constitutional jurisprudence requires it to first ask whether a police officer’s action is a trespass.33 In this context, the Court has said that a ‘licence may be implied from the habits of the country’34 and ‘background social norms’.35 On this objective approach, the Court has recognised an implied licence for police to approach a front door to engage in investigatory questioning of an occupant,36 but not to engage in investigatory observations of an occupant.37 Thus, it would appear that approaching a person’s front door to request them to submit to a breath test would fall within the scope of an implied licence.38 The diversity of views among the jurisdictions surveyed above reveals the competing interests of privacy, property and public safety that are engaged by situations like those in Roy. It is unsurprising, then, that a similar diversity of opinion is reflected in the Australian state and territory legislative regimes governing police attendance on private property.
IV Legislative diversity at home Across Australia, a number of state and territory legislative regimes authorise police to attend upon a person’s unobstructed private property as far as the front door. These legislative regimes are not uniform: they authorise attendance in different circumstances, for different purposes and are subject to different preconditions. In the Northern Territory, the Housing Act 1982 (NT) provides that a police officer may ‘enter a yard, garden or other area associated with public housing premises (but not the residence)’39 to ask a person their name, address and, if relevant, age.40 However, the officer may only do so if they reasonably believe the person has engaged in proscribed conduct or may be able to help with the investigation of proscribed conduct.41 In Victoria, the Family Violence Protection Act 2008 (Vic) appears to address circumstances, like those in Roy, where multiple people occupy a residence. That statute permits police to enter premises (including a front yard) if police have the ‘implied consent of an occupier of the premises to do so’.42 That provision would appear to empower police to approach a person’s front door where one occupant would consent to that attendance but another would not. In Queensland, the Police Powers and Responsibilities Act 2000 (Qld) provides that a police officer may, without the consent of the
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occupier, enter onto the land surrounding a suburban dwelling house ‘to inquire into or investigate a matter’.43 That provision ‘dispenses with the need to rely on the common law implied licence or consent to enter private property for likely welcome purposes, such as approaching and knocking on the front door’.44 While that authorisation may be subject to some qualification,45 it appears far broader than statutory authorisations in other states or territories. The existence of the Northern Territory, Victoria and Queensland legislation raises the question of whether and how the Court should account for these legislative regimes in the development of an adjacent common law doctrine. One important, if preliminary, comment is that legislative activity in a particular area of regulation is often considered to be a reason for courts to be cautious in their development of the common law.46 For example, in a NZ decision denying the existence of an implied licence for police to breath test a person at their front door, the NZ High Court’s conclusion was ‘reinforced’ by the existence of a ‘special statutory power … in limited form’.47
LawCare:
Caring for the legal profession in the NT The Law Society NT funds a professional, confidential and free counselling service for our members and their immediate family, provided through Employee Assistance Service Australia (EASA). If you are experiencing workplace, personal or emotional issues which are affecting your work or personal life, please call LawCare via the EASA Program 24-hour support line on 1800 193 123 or visit their website at www.easa.org.au. When booking an appointment, please inform the operator that you are a Law Society NT member. This service is completely confidential. The Society will only receive statistical information on the numbers accessing the service.
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Similarly, for Brennan J in Halliday v Nevill, the fact that Parliament had ‘carefully defined the rights of the police to enter’ was a matter cautioning against ‘too ready an implication of a licence’, especially in light of the sensitive ‘balance between individual privacy and the power of public officials’.48 Finally, in Canada, it was said that ‘Parliament is in a better position’ than the courts ‘to obtain evidence’ and ‘to assess’ the competing policy considerations engaged by police attendance on private property.49 Outside the Northern Territory, Victoria and Queensland, however, Australian legislatures have largely left the lawfulness of police doorknocking to be governed by the common law.50 Should this ‘legislative inertia’51 be relevant to the development of the common law? If characterised as mere inattention, legislative inertia might be of little relevance. If, however, legislative inertia is characterised as a ‘choice to be silent’52 — that is, the product of political compromise or deliberation53 — it might warrant judicial modesty in development of the common law for the reasons expressed in the preceding paragraph. Finally, if legislative inertia is based on a particular state or territory legislature’s view of the common law, that ought not to be given much weight by a court looking to develop the single common law of Australia.54 This final observation points to a further reason for judicial caution in developing the common law of implied licences, a reason rooted in Australia’s federal structure and the respect for policy diversity entailed in that structure.
V State and Territory policy diversity and the universalising force of the single common law Australia’s federal structure was designed, and continues to operate, to accommodate state and territory policy diversity in areas (like policing) that are not the subject of Commonwealth legislative power.55 In fact, it has been persuasively argued that one benefit of Australia’s federal structure is that it facilitates policy experimentation in such areas.56 Against this feature of Australian federalism, however, is the fact that Australia has a single common law.57 The doctrine of the single common law has been acknowledged to exert a universalising force over
what might otherwise have been diverse and locallygrounded bodies of common law unique to each state or territory.58 For present purposes, however, what is important is that the single common law can also render obsolete differences in the statutory law of the states and territories.59 This universalising potential of the single common law looms large in Roy. If the High Court were to recognise an implied licence for police officers to attend a person’s front door for investigative inquiries, that would afford police a much wider authorisation than that provided by, for example, the Northern Territory legislature. In fact, the effect would be to essentially bring all states and territories into line with the Queensland legislation.60 That result might appear to be insufficiently respectful not just of the Northern Territory legislature — which has positively authorised only certain police attendances — but also of the other state and territory legislatures that were presumably aware of the Queensland legislative model (enacted in 2000) and chose not to follow it. Of course, if the Court were to develop the common law in this manner, state and territory legislatures would be free to reverse or modify the position by legislation.61 However, the theoretical possibility of legislative override in this direction should not be overstated, especially given the sociopolitical realities that weigh against legislative action to limit the powers of police.62
the common law of Australia, it should be mindful of the approaches taken in other jurisdictions and the diversity of Australian state and territory legislative positions. It is important to appreciate the federalism values at stake in circumstances where an extension of the common law would answer a question uniformly, and nationally, that might otherwise have been answered differently, and locally, by each state and territory legislature. Such circumstances warrant caution in the development of the common law, particularly where, as here,64 development of the common law depends on an estimation of what ordinary members of the public would think. As has been said in a different context, ‘we have sophisticated electoral and parliamentary systems which are meant to reflect what [ordinary people] think’.65 Where the High Court is in doubt about whether ordinary people would consent to a particular entry onto private property, it is suggested that the safer course is to leave any further qualification of individual property rights to the better equipped, and more accountable, state and territory legislatures. * JULIAN R MURPHY: PhD candidate, University of Melbourne, School of Law. Email: julian.murphy@student.unimelb.edu.au. Thanks to Jeffrey Gordon, Adrienne Stone and Julia Wang for helpful comments and constructive criticisms. Note: the author was previously a solicitor
The suggestion that the High Court in Roy should proceed cognisant of Australia’s federal structure, and the diversity of state and territory legislation, should not be controversial. The Court has shown the same sensitivity to federal diversity when it has refused to develop the common law in a particular direction in the absence of a ‘consistent pattern of State legislation’.63
at the North Australian Aboriginal Justice Agency, where he represented the appellant at earlier stages of these proceedings. The views expressed here are the author’s own and do not necessarily reflect those of his past employer.
Endnotes: Pages 79-81.
VI Conclusion Can a police officer knock on a person’s unobstructed front door in order to investigate them? This column has not proposed an answer to the question at the heart of Roy. It may be that any answer depends on matters not explored in this column, such as the principles relating to dual purposes for attendance and multiple occupancy residences. However, insofar as the Court in Roy must develop or refine
This paper was first published in (2020) 42(3) Sydney Law Review, Advance Republished with permission of author Electronic copy available at: https://ssrn.com/abstract=3673695
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CAREERS
JASON ELIAS BA LLB FRCSA CHIEF EXECUTIVE OFFICER ELIAS RECRUITMENT
Six ways to ace a video interview Written by Jason Elias BA LLB FRCSA - Australian Recruitment Leader of the Year 2020.
As the pandemic continues, it’s wise to be prepared for interviewing via videoconferencing. COVID-19 has fundamentally changed the way the legal recruitment process operates. Video interviews have become the norm and require a different technique from conventional face to face interviews. Use these tips to ace your next video interview.
Appearance Presenting a professional appearance is interviewing 101, but video interviews present some challenges to looking your best. For starters, you should familiarise yourself ahead of time with where exactly your webcam is going to be hitting you — knowing which parts of you will be visible will help you
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plan an outfit that is professional without being distracting. As tempting as it might be, resist the urge to wear pyjamas below the view of the webcam. During a video interview of my own, there was a moment when I had to get up from my kitchen table mid‑interview and I was happy I’d put on appropriate pants.
Surroundings If you’re being interviewed remotely, odds are you’re doing the interview from your home. Before your interview begins (preferably long before), stake out the perfect spot to set up your laptop or tablet for the interview, being conscious of what the recruiter will see in the background. Also be conscious of lighting. Having bright light behind you can leave you as a silhouette. Depending on the culture of the company you’re interviewing for, you might use this opportunity to demonstrate a little personality — a carefully placed memento from your university or picture of your pet can add a little colour without
being distracting. Otherwise, keep things clean and safe. You should be the star of the show on video, not a messy kitchen or barking dogs.
the decision to progress your application. Make sure you are authentic and leave an impression that you are willing and able to do the job.
Videoconference tools
Ask good questions
Almost every Zoom meeting starts with “can you hear me?” Tech issues are a great way to distract from your interview. Even though you are not being recruited for an IT role, make sure you have all the tech set up properly and even dial in a few minutes early if possible to test the sound. If you are competing with others for bandwidth (have you met my kids?), arrange for them not to be online during your interview.
It is a good idea to prepare a few questions to ask at the end of the interview when invited to do so. Try and avoid “me-me” questions about what you will get. Instead show you have listened to the interviewers and try to have them imagine you are joining them. For example:
Interviewers As with any job interview, your homework begins long before the video interview itself. You should thoroughly research the firm, its people, its strengths and its achievements so you’re prepared to discuss them during the interview. Additionally, the internet has made it simple to familiarise yourself with your interviewers before you meet them virtually. Partners and HR professionals are generally very active on LinkedIn and a quick Google search will shed some light on who you will be meeting.
Make a lasting impression The previous four tips are really all about one thing: putting your best foot forward. It can be easy when interviewing virtually to forget about the personal touches that can really make you stand out. Keeping that in mind, remember non-verbal communication can make up to 80 per cent of
be informed
●● What does a typical day in this role look like? ●● What would success look like in this job six months down the line?
@lawsocietynt
●● What do you like most about working in this organisation/team? ●● How would you describe the culture of the team?
JASON ELIAS is CEO of Elias Recruitment, specialist legal recruiters in Melbourne, Sydney, Brisbane and Perth. He is a former lawyer at Baker McKenzie and has been recruiting lawyers for more than 20 years. He was recently awarded Australian Recruitment Leader of the Year.
@lawsocietynt
lawsocietynt.asn.au
info@eliasrecruitment eliasrecruitment.com (02) 9555 5711
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HE ALTH & WELLBEING
Look after yourself during Mental Health Week October 2020
R U OK? Day 10 September https://www.ruok.org.au/
Mental Health Day 10 October
Mental Health Week 10–18 October
World Smile Day 2 October
Starting with World Mental Health Day on 10 October, National Mental Health Week is held each year to help raise awareness about mental health and wellbeing challenges. Think of yourself as a garden continuously growing and developing in response to different stimuli — from the sun showering us with warmth, to drops of rain, to the ever‑persistent bugs eating away leaves and our roots seeking nourishment from the damp earth — the garden goes through automatic and reactive motions each day and is a complex community of organisms that work together forming an ecosystem that sustains life. You are a complex multi-cellular organism and just like the garden, you also need maintenance (no offence intended!). It may sound silly to compare ourselves to the poor tomato plant out the back that’s not looking too happy now that the dreaded Troppo season is starting to take hold — but is it really?
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What does a garden do if it isn’t looked after? It can wither and become unmanageable, resulting in bigger problems that are harder to fix — very similar to our mental and physical health. It makes sense to take a little break to maintain our wellbeing from time‑to‑time. The most valuable gift we can give to ourselves is our health and wellbeing. So during Mental Health Week this October, please dedicate some time to unwind from the norm and look after yourself both mentally and physically.
Connect with others; Be active; Savor the moment; Try something new; Give back to others.
SOMETIMES WE JUST NEED SOME CLARITY. by Spike Milligan
Smiling is infectious You can catch it like the flu When someone smiled at me today I started smiling too I walked around the corner And someone saw me grin When he smiled I realised I had passed it on to him I thought about the smile And then realised its worth A single smile like mine Could travel round the earth So if you feel a smile begin Don’t leave it undetected Start an epidemic And get the world infected. Spread the message: World Smile Day Friday 2 October 2020
LawCare Caring for the legal profession in the Northern Territory The Law Society NT funds a professional, confidential and free counselling service for our members and their immediate family, provided through Employee Assistance Service Australia (EASA). If you are experiencing workplace, personal or emotional issues which are affecting your work or personal life, please call LawCare via the EASA Program 24-hour support line on 1800 193 123 or visit their website at www.easa.org.au.
NT toll free: 1800 193 123 Darwin: (08) 8941 1752 Katherine: (08) 8941 1752 Alice Springs: (08) 8953 4225 When booking an appointment, please inform the operator that you are a Law Society NT member. This service is completely confidential. The Society will only receive statistical information on the numbers accessing the service.
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INSUR ANCE
KERRIE LALICH CHIEF OPERATIONS OFFICER LAWCOVER
Do you know it all? When its unwise to advise
There can be an expectation as a legal practitioner that you are able to handle every legal problem that arises, even if the problem is outside of your usual area of practice. However, dabbling in unfamiliar waters without the appropriate knowledge and experience can be unfair to the client and increase the risk for the practitioner.
Creeping scope Taking on work outside your area of practice is not always a conscious decision. Often the situation arises from a complication to an existing matter or a piece of work flowing from another transaction. However, a simple drafting exercise or conveyancing matter can turn into a far more complex set of circumstances. Far from being risk free, dabblers lack the experience and knowledge in the area to accurately gauge if the matter is straight forward or requires expertise.
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In Laurens & Laurens [2017] FCCA 109 a practitioner acting in a family law matter for the wife, also acted on the sale of a property on behalf of both parties. The proceeds of the sale, held in trust, were distributed by the practitioner to the wife without the consent of the husband in an amount not provided for in the final orders. The court stated that the practitioner’s conduct ‘[s]hows lack of understanding as to the effect of interim and final orders, and of the obligation of a lawyer acting as a trustee.’ ‘[I]t shows a level of competency in this case that falls short of what is expected of reasonably experienced practitioners’ (at [59]). Subsequently a personal costs order was made against the practitioner.
Tip: When in unfamiliar waters, take the time to determine the depth of your involvement and your experience before proceeding. Family and friends Practitioners will sometimes take on complex matters out of a sense of ‘obligation’. This is particularly troublesome when the matter is outside of the practitioner’s usual area of practice and often leads to a professional negligence claim. Handling a legal matter for a family member or friend may seem like the ‘right thing to do’ but it can have very real consequences without adequate knowledge and experience.
Tip: Rather than taking on the matter, refer your friend or family member to someone else with expertise in the area.
Don’t be tempted to ‘value-add’ to an existing client to maintain the relationship.
Tip: Relinquish the work of existing clients to either someone else within the firm that has knowledge and experience in the area or to a practitioner in another firm. In general, accepting instructions in an unfamiliar area of practice enhances risk. It can lead to errors, disappointed clients and consequential claims. Be aware of your own limitations and assess the risk of taking on matters that may be outside your regular practice. It is not necessarily what you know; it’s what you don’t know that can lead to problems.
Switch: (02) 9264 8855 www.lawcover.com.au
Accommodating existing clients Taking on a ‘one off’ matter as an accommodation to existing clients can be tempting. You may take on a matter that you would otherwise not consider, to save the client money or because you have acted for the client in the past. In a Lawcover claim a specialised commercial practitioner took on the drafting of a will for a long standing commercial client. The client was about to take an overseas trip and needed a will drafted quickly. Although outside his area of expertise, (the practitioner had not drafted a will since his practical legal training days 25 years before) he saw no problem with accommodating this ‘one off’ request. The will contained numerous errors including the distribution of one property twice; to two different beneficiaries. Not surprisingly, the estate brought a claim against the practitioner for the costs of the rectification of the will.
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* All cover is subject to the full terms, conditions, limits and exclusions of the Lawyers Management Liability Policy Wording underwritten by Lawcover Insurance Pty Limited and available on our website, which you should read before deciding to purchase this insurance. This is not a mandatory insurance. You may wish to consider seeking independent advice from a professional adviser or broker to assist you in deciding whether this product is right for your law practice.
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TCA #6885
Level 13, 383 Kent Street, Sydney, NSW 2000 DX 13013 Sydney Market Street
FINANCE
ANDREW PROEBSTL CHIEF EXECUTIVE LEGALSUPER
Peer-to-peer mental health support
With many people working from home and physical distancing still necessary, the importance of peer‑to‑peer mental health support cannot be understated.
legalsuper has a long-standing and active commitment to supporting mental health and wellness in the legal community. Most recently, legalsuper has worked with Mental Health First Aid Australia (MHFA), Australian Legal Practice Management Association (ALPMA), Australian Legal Students Association (ALSA) and the College of Law, to support the delivery of MHFA Mental Health First Aid Training courses to the legal community. In this column, legalsuper’s Chief Executive Andrew Proebstl (AP) spoke with MHFA’s International Director of Research and Curriculum Dr Claire Kelly (CK) about the need for mental health training and a focus on peer‑to‑peer support. AP: Your organisation, Mental Health First Aid Australia (MHFA), puts an emphasis on how colleagues can help each other with mental health challenges in the workplace. Why do you place such an emphasis on peer-to-peer support? CK: People can initially be really uncomfortable disclosing information about their mental health to their employer. There can be a real fear about possible impacts on their employment, or their career, perhaps an assumption that they can’t handle their job. There’s a fear that it may become a permanent mark on their record, that they won’t be offered leadership positions or challenging tasks. Talking to a trusted colleague can be easier. Also, when it comes to physical first aid, we don’t usually mind too much who helps out. If you sprain your ankle in the office, you want someone competent at first aid to wrap it up for you, but you may not worry about knowing or trusting them. With mental health, it’s easier to talk to someone you have good rapport with. This is why it’s important to have several people in the workplace who can have mental health first
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aid conversations. You might be comfortable to have a supportive conversation with a colleague who has a similar role to yours but having a similar conversation with a junior employee could be misinterpreted as a performance management discussion. Having concerns about your own line manager could be even more complicated. Your employer has a clear and important role to play in helping staff with mental health problems, but often the first step involves seeking peerto-peer support so the more that your staff know how to handle these issues, the better it is for everyone. AP: During COVID-19, many people have worked from home. What mental health challenges has this presented? CK: To start with, people were juggling more roles than ever. On top of their own jobs and responding to new work demands, many parents were homeschooling children. The natural social supports we rely on were inaccessible, along with many services. There was also fear about the pandemic itself. People were worried about family and friends falling ill and hearing a lot of very frightening news from overseas. This all adds up to a huge number of stressors, with no end in sight. This sort of stress has a negative impact on both mental and physical health. Loneliness and isolation are harmful as well, and
negative coping strategies such as drinking more alcohol, poor sleep hygiene and working long hours may be easier to reach for, with fitness centres closed and social distancing making it hard to connect. AP: As people consider transitioning back to working from the office, what mental health challenges does this transition process present, what can employers do for staff, and what can colleagues do for each other? CK: A sudden shift back to the office will be harder for some than the transition to working from home. A gradual return to the office, working from home on set days, and encouraging people to avoid working very long hours can all be helpful. Consider options for employee well-being programs. There are great resources for workplaces – SuperFriend (https://www.superfriend.com. au/) and Smiling Mind (https:// www.smilingmind.com.au/) have excellent programs. Watch out for anyone who may be struggling. Mood changes, sleep difficulties, lack of self-care and withdrawal are all signs that there may be a mental health problem developing. People can go to a lot of effort to conceal their struggles, so make sure to spend some informal one-on-one time with colleagues you think might be having a tough time.
MHFA Mental Health First Aid courses tailored to legal professionals are available in a blended format, with eLearning and a component delivered via videoconference. MHFA courses equip participants to recognise signs that someone they care about may have a mental health problem, have a supportive conversation, and encourage the person to seek professional help. More serious situations such as responding to thoughts of suicide are also covered in the course. You can find a course at www.mhfa.com.au or MHFA can find an instructor to run a course for you. ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community.
% aproebstl@legalsuper.com.au ! (03) 9602 0101
DR CLAIRE KELLY is the Director of Research and Curriculum at Mental Health First Aid International, a not‑for-profit health promotion charity providing mental health education in Australia and beyond.
% mhfa@mhfa.com.au ! (03) 9097 0200
This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879.
LAW SOCIETY NT BALANCE EDITION 3|20
35
LOCAL NEWS
Snapshot of the NT legal profession PCs issued by region
Practitioner growth 400
364 247
200
611
NO DATA AVAILABLE
1982
2020
Practitioner gender
ATSI status i
3
7
40%
247 60%
10
611
364
Overview of PCs issued
i
ii
ATSI status: This data is gathered from an optional question on NT PC application forms. The data shown may be higher. Practitioners by sector, private: Includes barristers.
iii Practitioners by sector, other: Includes CLCs, legal aid, land council, statutory body and those practitioners that held a PC at 30/06/2020 but were not practicing.
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LAW SOCIETY NT BALANCE EDITION 3|20
Practitioners by sector
PCs issued in total
226
Private; 6.99% ii
35
PCs surrendered to the Society
135
Government; 22.09%
11
PCs issued with special conditions
13
PC renewals submitted late
644
19 231
Corporate; 3.11% Other; 37.81% iii
Principles of Dispute Resolution David Spencer, Third Edition, Lawbook Co, Thomson Reuters, 364 pages + tables ISBN 9-780455244167
The back cover proclaims that this is “(a) great authoritative text on the law and practice of dispute resolution in Australia … .” And that, in a nutshell, sums up what this book represents. The back cover further says that this third edition has been updated by the latest amended legislation and case law. In the 9 years since the 1st edition was published, the list of cases has grown by two whole pages. Moreover, the text has grown by over 40 pages. With this third edition, there is new material on the theory of conflict; the value of conflict and the state’s role in appropriating conflict for its own benefit; and on disruptive technologies. Overall, each chapter has been reviewed and updated where appropriate to include the latest developments in the theory, philosophy and practice of dispute resolution in Australia.
It is a complete treatise on dispute resolution. Furthermore, the book is written in simple English and throughout, the written text is supported by case notes explaining how the law has moulded dispute resolution. Overall, I found David Spencer’s authoritative text to be readable, a thorough coverage of the field of dispute resolution, as well as providing an insightful, and at times challenging, perspective of the practice of dispute resolution in Australia. He is to be congratulated.
A fellow wandered into the local pet store and noticed three identical looking parrots on a perch. The salesman, noting his interest, comments: “The parrot on the left costs $500’’. “Why does the parrot cost so much?’’ asks the customer. “Parrots are exotic birds but this parrot knows how to do legal research.” The fellow then asks about the next parrot, to be told that this one costs $1000. “Because it can do everything the other parrot can do plus it knows how to write a brief that will win any case.” The startled customer then asks about the third parrot, only to be told it costs $5000. “What can it do?” he asks.
It is highly recommended and a valuable guidebook for both teachers, students and practitioners of dispute resolution.
“To be honest,” replies the salesman, “I’ve never seen him do anything, but the other two call him the Senior Partner.”
Review by Geoff Charlton
LAW SOCIETY NT BALANCE EDITION 3|20
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CA SE NOTES - SUPREME COURT
CAMERON FORD BARRISTER, ARBITRATOR, ADJUDICATOR, MEDIATOR
www.cameron-ford.com
Supreme Court judgments ADMINISTRATIVE LAW – appeals from commercial visitor accommodation refusals
ADMINISTRATIVE LAW – leave to appeal “on a question of law”
In Reynolds v Chief Health Officer [2020] NTSC 44, Grant CJ doubted, without deciding, that the appeal provisions of s 106 of the Public and Environmental Health Act (NT) do not apply to a decision to refuse registration as a commercial visitor accommodation business under that Act. If the appeal provisions did not apply, it would remove provisions relating to registration and renewal, compliance, cancellation, notification of sale or disposal of a business, the declaration of standards and the maintenance of the register.
In Reynolds v Chief Health Officer [2020] NTSC 44 and HN v NTCAT & Ors [2020] NTSC 48, Grant CJ and Hiley J respectively repeated the views of Grant CJ in Booth v An Assessor [2019] NTSC 89 that an appeal from NTCAT to the Supreme Court “on a question of law” is narrower than an appeal that merely “involves” a question of law. The subject matter of the appeal must be the question of law itself, rather than some mixed question of fact and law or a matter which merely “involves” a question of law. The appeal is more in the nature of judicial review than an appeal in the conventional sense of a rehearing. The court must be satisfied of the existence of a question of law before leave is granted. Leave should be granted only if it is in the interests of justice. Considerations which will generally be decisive are whether there is sufficient doubt about the question of law to justify the grant of leave, the importance of the question of law raised, and whether a substantial injustice would result if the error of law was not corrected. A failure to afford a party procedural fairness may constitute an error of law and give rise to a competent ground of appeal.
ADMINISTRATIVE LAW – improper use of evidence is jurisdictional error In Sunbuild Pty Ltd v Local Court Judge Therese Austin & Anor [2020] NTSC 38, Barr J granted certiorari to quash a summary judgment of the Local Court that held an employer liable for a secondary mental injury (see WORKERS COMPENSATION – SUMMARY JUDGMENT FOR SECONDARY INJURY). To decide factual merits, the trial judge had, without warning the parties, taken into consideration affidavit evidence expressly tendered and relied on only for a notice issue. As the evidence was not properly before the judge, the decision was made without jurisdiction. There was also a denial of procedural fairness which, although not jurisdictional error, is a proper basis for the making of an order in the nature of certiorari.
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ADMINISTRATIVE LAW – questioning witnesses in NTCAT In HN v NTCAT & Ors [2020] NTSC 48, Hiley J held that in NTCAT there is no unfettered right for a party to question a witness; the NTCAT Act seems to
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contemplate that questions of a witness will normally be asked by a member of the Tribunal, and that another person can only question a witness if the Tribunal considers the question relevant. There is no express obligation upon the Tribunal to allow a person to ask questions of a witness or another person, accept evidence about a matter that is not in issue or which is not otherwise relevant, or attach particular weight to particular evidence or to a submission which it considers of little if any relevance to any issues in the proceeding.
ADMINISTRATIVE LAW – review on “merits of the decision” In Reynolds v Chief Health Officer [2020] NTSC 44, Grant CJ held that a review by the Local Court under s 84 of the Food Act (NT) of the merits of a decision was a species of original jurisdiction for the Local Court to make the decision afresh. The court has scope and discretion to determine what form of hearing the circumstances require. A review on the merits will usually, but not always, entail a hearing de novo, and requires the review body to conduct its own independent assessment and determination of the matters necessary to be addressed it is unnecessary for the review body to find error in the original decision, and the review is directed to the actual decision rather than the reasons for it. The review body must exercise its own judgment and reach its own conclusions. Additional evidence may be received where the review tribunal is required to exercise original jurisdiction and make its own decision.
ADMINISTRATIVE LAW – transfer from local Supreme Court
LAW – IMPROPER USE OF EVIDENCE IS JURISDICTIONAL ERROR.
In Goldsmith Pty Ltd v GPT RE Ltd & Ors [2020] NTSC 30, Grant CJ refused judicial review of an interlocutory decision of the Local Court not to transfer proceedings to the Supreme Court. He said inferior court decision are only amenable to judicial review for jurisdictional error and error on the face of the record. It was not jurisdictional error to refuse to transfer proceedings where it was only contingent and prospective that the monetary jurisdictional limit of the Local Court would be exceeded. The Local Court’s jurisdiction is not limited to making an order for transfer unless positively satisfied that the claim will not exceed the civil jurisdictional limit.
APPEAL – delay in judgment
WORKERS COMPENSATION – summary judgment for secondary injury
CHILDREN – underlying principles bind court
In Sunbuild Pty Ltd v Local Court Judge Therese Austin & Anor [2020] NTSC 38, Barr J held that a worker was not entitled to summary judgment for workers compensation for secondary mental injury simply because the employer had denied liability. The worker needed to give notice of the secondary injury and prove that it flowed from the physical injury for which the employer had accepted liability. The worker could not rely on the employer’s conduct as having accepted liability for the secondary injury unless the worker pleaded or relied on estoppel, which it did not do. Summary judgment was quashed – see ADMINISTRATIVE
In Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4, the Court of Appeal held that it is permissible for there to be an appreciable delay between judgment and reasons; that the delay itself is not a ground of appeal but the trial judge’s advantage is eroded and an appellate court must look at challenged facts with special care; that more comprehensive statement of the evidence should be provided and omitted evidence will not necessarily be assumed to be have been considered; and that an appellate court should consider the prospect that the judge was under great pressure to complete and publish the judgment.
In NB & Ors v SB & Ors [2020] NTCA 2, the Court of Appeal held the “underlying principles” in Part 1.3 of the Care and Protection of Children Act 2007 (NT) bind the court as well as the executive, and the Local Court is subject to the requirements set out in ss129 and 130. Tension among the achievement of different criteria and principles is to be resolved by according paramountcy to the best interests of the child.
CIVIL PROCEDURE – privilege eroded by particular discovery In Sunbuild Pty Ltd v Local Court Judge Therese Austin & Anor [2020] NTSC 38, Barr J granted certiorari to quash an order of the Work Health Court requiring an employer to identify the
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date and time of surveillance footage in its list of privileged documents. He said disclosure of the date and time eroded the employer’s privilege in that it would be partial disclosure and would enable the worker to know those details. To enumerate and list the relevant documents for which privilege is claimed, to enable the privilege claim to be assessed (and challenged), there can be no legitimate requirement for the documents to be listed in a manner which would result in the loss of the benefit of the privilege. The error was ‘directly jurisdictional’ in that the court exceeded its powers in making an order which impinged — albeit slightly — on the employer’s common law right.
CIVIL PROCEDURE – public interest immunity for cabinet documents In Wickham Point Development Pty Ltd v Commonwealth of Australia & Ors (No 5) [2020] NTSC 31, Luppino AsJ was minded to inspect Cabinet documents to determine a claim to public interest immunity. He said there is a three step process of determining that immunity, namely determining whether (a) production would harm the public interest; (b) there is a public interest in the requestor having them; and (c) the balance favours production. Cabinet documents (a broad term) prima facie are entitled to the immunity but may have to be produced if exceptional circumstances show the public interest in production outweighs that of non-production. Considerations will be the reasons given as to why the revelation of the documents would impact the
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proper functioning of government, whether the document is only historical and the subject matter of the document. The documents must not only be relevant by must contain material evidence before they will be required to be produced. To claim the immunity, there must be a real possibility as opposed to a probability that harm will arise from production.
CIVIL PROCEDURE – rules for declarations In LKAJ Two Pty Ltd v Squire Patton Boggs (AU) & Anor [2020] NTSC 45, Luppino AsJ held that superior courts have an inherent power to grant declaratory relief that is not modified by the statutory power in s18 of the Supreme Court Act. There must be more than a hypothetical case to obtain a declaration; the resolution of the question must be necessary to determine a legal controversy; the relief must have consequences for the parties and cannot relate to circumstances that have not occurred, nor may ever occur; the party seeking declaratory relief must have a real interest in the relief; there must be proper argument – a declaration will not be made in default of defence or on admissions or by consent.
CIVIL PROCEDURE – strike out vs summary judgment – “embarrassing” pleadings In LKAJ Two Pty Ltd v Squire Patton Boggs (AU) & Anor [2020] NTSC 45, Luppino AsJ held that “embarrassing” in the context of pleadings, in general terms means that the pleadings do not state material facts sufficiently clearly against the opposite party so that the opposite party is in doubt as to
what is alleged and gave examples at [14]. Summary judgment is a summary determination of the proceeding on the ground that the claim or defence is bad in law whereas in a strike out application, it is assumed that an arguable claim or defence exists but the pleading fails to properly express that claim or defence. Strike out is not a final determination of the proceedings unless the proceedings are also dismissed. Material facts are those necessary to formulate the complete cause of action, are not to be expressed in terms of great generality and should have sufficient particulars to enable the trial to be conducted fairly to all parties.
EVIDENCE – regard to non‑evidence In Hardy v Rigby [2020] NTSC 42, Hiley J rejected an argument that a sentencing judge should have had regard to a Bail Assessment Report and a Supervision Report not admitted into evidence. He said the judge is entitled to rely on counsel to clearly identify materials relied upon and what use is to be made of such materials and might be criticised for having regard to materials not in evidence and not referred to by counsel. Counsel, particularly experienced counsel, may have made a deliberate forensic decision not to tender or rely on particular material.
COSTS – differential order by time In Value Inn Pty Ltd v Proprietors of Unit Plan 2004/048 & Anor [2020] NTCA 8, the Court of Appeal restored the Local Court’s allocation of costs based on an
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approximation of the time spent on discrete and severable issues of fact and law, saying the trial judge was best placed to make that decision and that it should not be based on the number of issues. Successful defendants may not be penalised for the costs of unsuccessful defences to the same extent as plaintiffs who are unsuccessful on some claims.
COSTS – indemnity for hopeless application In Nilsen (NT) Pty Ltd v Delta Electrics NT Pty Ltd (No 2) [2020] NTCA 6, Mildren AJ sitting as the Court of Appeal ordered an unsuccessful applicant to pay indemnity costs of a hopeless application for leave to appeal from an interlocutory order striking out the applicant’s defence. Costs were payable forthwith as there is no rule deferring the payment of costs in an application for leave to appeal.
COSTS – indemnity lump sum for frivolous application In Booth v An Assessor under Section 24 of the Victims of Crime Assistance Act 2006 (NT) & Anor (No 2) [2020] NTCA 7, Graham AJ sitting as the Court of Appeal ordered an unsuccessful self-represented applicant to pay indemnity costs fixed at $4755 of a frivolous and incompetent application for leave to appeal. ’ If a litigant seeks to appeal a Supreme Court judgment that litigant bears an obligation to, at the very least, attempt to comply with the Rules of Court.’
COSTS – indemnity where plaintiff’s offer lower In TTG Nominees Pty Ltd v Aileron Pastoral Holdings Pty Ltd [2020]
NTSC 15, Mildren AJ granted a successful plaintiff indemnity costs from one month after it made an offer to accept $400 000 inclusive of interest and costs, because it recovered some $454 000 plus interest and costs.
COSTS – loser’s impecuniosity, futility – winner’s public character In Monck v Commonwealth of Australia (No 2) [2020] NTCA 1, the Court of Appeal ordered an unsuccessful selfrepresented applicant for leave to appeal to pay the costs of the Commonwealth, holding that the applicant’s impecuniosity (and the resultant futility of the order) and the Commonwealth’s character as a body politic were irrelevant to the exercise of the costs discretion, applying Northern Territory v Sangare [2019] HCA 25.
CRIME – application of proviso In Flash v The Queen [2020] NTCCA 5, the Court of Criminal Appeal overturned a murder conviction because the direction to the jury did not deal properly with intoxication and did not apply the proviso in s411(2) of the Criminal Code 1983 (NT). The court said the proviso will have no application where the irregularity constitutes such a departure from an essential requirement of the trial process that it goes to the root of the proceedings. The direction in relation to the requisite intention, including the bearing of intoxication on the formation of that intention, is of such fundamental importance that a failure to provide adequate directions on the issue will ordinarily cause the trial to miscarry.
CRIME – directions for distress COSTS – prosecutor’s failure to disclose In Hogan v Rigby (No 2) [2020] NTSC 28, Hiley J declined to award indemnity costs against the prosecution after allowing an appeal against conviction for the prosecutions failure to disclose a statement of the appellant: see CRIMINAL PROCEDURE – PROSECUTION’S DUTY OF DISCLOSURE. He said the failure was inadvertent rather than wilful, that the appellant could have informed his counsel that he had made a statement and that if defence counsel had been more alert, they could have requested the statement. He awarded costs to the appellant on the standard basis.
In Lynch v The Queen [2020] NTCCA 6, the Court of Criminal Appeal held that the essential elements of the direction to the jury will be that it must be satisfied that the complainant was in a distressed state; that her distress was genuine; and that her distress was as a result of being sexually assaulted by the accused rather than some other cause. The probative value of evidence of diminishes with time as there is greater risk the distress was caused by something else.
CRIME – duty of Appellate Court In Hogan v Rigby [2020] NTSC 25, Hiley J noted the High Court’s decision in Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16 to the effect that an appellate court is
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required to hear and determine each tenable ground raised which argues in support of a verdict of acquittal.
CRIME – intoxication directions In Flash v The Queen [2020] NTCCA 5, the Court of Criminal Appeal overturned a murder conviction because the direction to the jury did not deal properly with intoxication. The court said that, where intoxication is an issue, the summing up should: (a) refer to the evidence of intoxication and sobriety; (b) remind the jury that it is up to them to determine how intoxicated the offender was; and (c) explain that intoxication can cause a person to strike another person with more force than the person intended; or cause a person not to appreciate the degree or extent of the injury that their actions would likely bring about. In some cases, a direction may have to be given that an inference of intention may not be so readily drawn from the nature of the wounds where the offender is highly intoxicated.
CRIME – intoxication directions – one or two stage In Morton v The Queen [2020] NTCCA 2, the Court of Criminal Appeal held that it is appropriate for a trial judge to use the words ‘decide’ or ‘determine’ in directing the jury in relation to their consideration of the degree or level of an accused’s intoxication before considering whether he had the necessary intent.
CRIME – “serious sex offence” In The Attorney-General of the Northern Territory v SJE [2020] NTCA 10, the Court of Appeal
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held that an offence contrary to s 474.27A of the Criminal Code (Cth) is not a “serious sex offence” within the meaning of s 4 of the Serious Sex Offenders Act 2013 (NT) and that therefore the offender was not a “qualifying offender” under the latter Act and could not be the subject of a final continuing detention order or a final supervision order under s 23(1).
CRIME – sex offender detention orders In JD v The Attorney-General of the Northern Territory [2020] NTCA 11, the Court of Criminal Appeal held that the court must be satisfied to a high degree of probability that the person is a serious danger to the community rather than being satisfied on the balance of probabilities; that not any risk will be an unacceptable risk of danger to the community; that the court has no power to force the Executive to make facilities available for the detention of the offender if there are insufficient resources for this to occur; and that, in determining whether the offender is “still” a serious danger to the community, the court may consider whether there have been any changes since previous detention orders.
CRIME – unsafe and unsatisfactory verdict In PW v The Queen [2020] NTCCA 1, the Court of Criminal Appeal overturned a verdict of guilty of sexual intercourse with a child under 16 as being unsafe and unsatisfactory because of the extreme unlikelihood of anyone taking the risks alleged against the defendant, the shifting and improbable stories told by the
complainant, some of which must have been untrue, and her inconsistent conduct in contacting the defendant which she irrationally explained.
CRIMINAL PROCEDURE – correction of sentencing errors In Andreou v Woodward [2020] NTSC 34, Hiley J held that the sentencing judge had erred in not fixing a mandatory minimum, and remitted the matter to any judge in the Local Court for rehearing. He said it was not appropriate to dismiss the appeal and remit for reconsideration under s112 of the Sentencing Act 1979 (NT) (correction of errors) as there was doubt as to the Supreme Court’s power to do so and as there had been a substantial miscarriage of justice in terms of s177(2)(f) of the Local Court (Criminal Procedure) Act 1928 (NT) (dismissal if no substantial miscarriage of justice)
CRIMINAL PROCEDURE – prosecution’s duty of disclosure In Hogan v Rigby [2020] NTSC 25, Hiley J quashed a conviction and remitted a charge for rehearing where the prosecution had failed to disclose a statement of the accused referred to in a record of interview. He said the prosecution must disclose to the defence all material that is available to it that is relevant or possibly relevant to any issue the case and the statement contained important material that related to the alleged offence. A miscarriage of justice occurs where an accused person has lost a chance which was fairly open of being acquitted by reason of a failure to apply the rules of evidence, procedure
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or relevant substantive law. The statement provided a version of events that may have exculpated the appellant.
CRIMINAL PROCEDURE – service of summons abroad In Department of Environment and Natural Resources v Ocean Ship Management Limited & Department of Environment and Natural Resources v Gardon [2020] NTSC 40, Kelly J held that the Local Court does not have jurisdiction to make an order for service with extraterritorial effect, whether under the Marine Pollution Act 1999 (NT), the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Cth) or any other provisions. The general common law rule is that “the writ does not run beyond the limits of the State”. For actions in personam, the defendant must be amenable to the command of the writ and that amenability depends on his being present within the jurisdiction. Service outside the jurisdiction is not ordinarily available in criminal matters. Legislative provisions need to be clear and unambiguous before they should be treated as authorising the service of an originating process in a criminal matter outside the jurisdiction.
other identifying particular of a person about to be released from a custodial to a non-custodial supervision order. Such orders are made in “the interests of the administration of justice” which is primarily directed to ensuring cases and trials are not jeopardised. In any case, the person was already notorious for parricide and his name had been recently republished. The court is entitled to presume that any coverage will be fair and accurate rather than sensationalist or distorted. The importance of open justice was not outweighed by the possibility of prejudice to the person.
CRIMINAL PROCEDURE – victims’ compensation calculation In Wurramarra v An Assessor [2020] NTSC 36, Hiley J held that, in calculating the threshold of entitlement to compensation under the Victims of Crime Assistance Act 2006 (NT), an assessor simply adds the standard amount for each injury listed in Schedule 3 Part 2 of the Regulations without deductions for second and subsequent injuries. Deductions are only made when calculating the actual amount of compensation after entitlement is established.
CRIMINAL PROCEDURE – Suppression of identity of person unfit to stand trial
ENERGY & RESOURCES, TAXES & DUTIES – costs of abandoned projects
In R v Bradley [2020] NTSC 23, Grant CJ doubted there was power under s57 of the Evidence Act 1939 (NT) or in the stricter inherent jurisdiction to suppress the name, proposed residence, place of employment and any
In Newmont Tanami Pty Ltd v Secretary for Mineral Royalties (NT) [2020] NTSC 22, Kelly J held that some costs incurred in the development of an underground mining project that was abandoned were recoverable
as “operating costs” as “eligible research and development expenditure” under ss4 and 4B of the Mineral Royalty Act 1982 (NT). “Operating costs” under s 4 must relate to the operation of a production unit in producing the saleable mineral commodity produced by that production unit. This would not include expenditure in progressing a development which was abandoned and so was never used in the operation of the mine to produce a saleable mineral commodity. There is nothing in the scheme of the Act to suggest a legislative intention that all types of expenditure relating to a production unit should fall within one or another head of deduction. To be deductible, expenditure be used in relation to the operation of a production unit — not simply “used”.
EVIDENCE – reasonable belief of police or justice? In Arnott v Dowd [2020] NTSC 32, Hiley J held that evidence obtained on the execution of a search warrant was improperly excluded by the Local Court on the grounds the search warrant was obtained without a relevant reasonable belief of the police officer requesting the warrant. Hiley J held that it is the Justice of the Peace issuing the warrant to whom it must appear there are reasonable grounds for belief under s 120B of the Police Administration Act 1978 (NT), not the police officer requesting the warrant. No evidence was called of the state of belief of the Justice and therefore the warrant was valid, the onus being on the party impugning the warrant.
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INTERPRETATION – “may” and jurisdiction In Goldsmith Pty Ltd v GPT RE Ltd & Ors [2020] NTSC 30, Grant CJ held that although “may” is prima facie discretionary, when used in relation to the investment of power in a court it may oblige the exercise of the power when the conditions are satisfied, particularly where the provision vests or limits jurisdiction. The provisions in ss15(1) and 18(3) of the Local Court (Civil Procedure) Act (NT) empowering transfer for proceedings to the Supreme Court are facultative, even though it would be rare for them not to be exercised if the court positively formed the view that a claim exceeded its monetary jurisdictional limit.
MENTAL HEALTH – involuntary admissions for custodial inmates
44
In Norris v The Queen [2020] NTCCA 8, the Court of Criminal Appeal upheld a discounted sentence of five years and eight months with four years non-parole for possession of about 137 grams of methamphetamine. A mandatory minimum non-parole was required for head sentences of more than five years. The court said a sentencing court may, but is not required to, fix a head sentence at the lower end of the range having regard to the operation of a mandatory minimum non‑parole period, but cannot fix a head sentence which is outside range; and it is not permissible for a sentencing court to structure or otherwise fix a sentence in order to avoid the application of a mandatory minimum non‑parole period.
sentences for causing serious harm from three years to four years and six months suspended after 18 months, and for possession of MDMA from seven days to a period to be determined, to be served concurrently. The victim suffered catastrophic injuries including severe traumatic brain injury, extensive fractures to the base of the skull and neck bones, and lung inflammation from aspiration of fluid. The court said that where a defining feature of the offence is the harm to the victim, the seriousness of the harm caused must play a significant role in determining the objective seriousness of the offence. The minimum sentence for possession of MDMA is 28 days.
SENTENCING – concurrency considerations
In Hillen v The Queen [2020] NTCCA 4, the Court of Criminal Appeal held that where both intention and recklessness are sufficient to form the metal element of an offence, and the same maximum penalty applies, then both can be considered as equally blameworthy. The sentencing judge was not required to make a finding as to whether the conduct was intentional or reckless and, in any case, the evidence overwhelmingly indicated it was intentional.
In KMD v The Mental Health Review Tribunal & Anor [2020] NTSC 13, Barr J allowed an appeal from the Mental Health Review Tribunal which found the appellant “is likely to cause serious harm” despite her being subject to a custodial supervision order. “Is likely to” in s 14(b)(ii)(A) of the Mental Health and Related Services Act 1998 (NT) looks to the present or short term. It was highly improbable, if not impossible, for the appellant to be released early to the community from her indefinite incarceration, of which the Supreme Court was the gatekeeper. Her likelihood of causing harm was to be determined in her present custodial environment.
In Bianamu v Rigby [2020] NTSC 43, Grant CJ repeated principles stated in Thomas v The Queen [2017] NTCCA 4 that sentences for multiple offences should be made concurrent where there is a single episode of criminality reflected by the sentence for one offence rather than two or more discernible courses of criminal conduct constituting “separate invasions of the community’s right to peace and order”. Temporal proximity is not conclusive, particularly in offences of violence involving separate attacks and/or separate victims.
SENTENCING – avoiding mandatory minimums
In R v Simpson [2020] NTCCA 9, the Court of Criminal Appeal increased
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SENTENCING – crown appeal – serious harm and MDMA possession
SENTENCING – culpability of intentional or reckless
SENTENCING – home detention order after imprisonment In R v Bennett [2020] NTSC 49, Hiley J held that a court does have the power to impose a home detention order suspending a sentence which has already been, or is to be, partly served by actual
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imprisonment under s 7(h) of the Sentencing Act 1995 (NT).
SENTENCING – incompetence of counsel In Bianamu v Rigby [2020] NTSC 43, Grant CJ dismissed an appeal based on the incompetence of counsel, holding that it is available as a ground of appeal against “sentence” under s163(1)(a) of the Local Court (Criminal Procedure) Act (NT). The inquiry is an objective one and it must be shown that the alleged incompetence resulted in a miscarriage of justice, not whether it was the result of significant fault, flagrant incompetence or egregious error. It is not an examination of what counsel did not know or think about; but of what did or did not happen during the course of the proceedings and whether a miscarriage of justice was occasioned. A miscarriage will be rare simply because of a defect in submissions made by defence counsel, but it may occur where material relevant to the sentence is not produced, or where the judge has failed to give any consideration at all to the available sentencing options. It is the responsibility of defence counsel to ensure all necessary submissions and evidence in mitigation are placed before the court; and a “firm application” for an adjournment should be made where defence counsel considers it is necessary to obtain some form of pre-sentence report.
HIGH RISK OFFENDERS – rape sentence – unfit to stand trial In R v KG [2020] NTSC 24, Grant CJ sentenced a 16 year old boy with significant intellectual disability
and severe functional impairment secondary and a history of sexually dysfunctional behaviours, who had been declared unfit to stand trial, to 2 years and 10 months custodial supervision under s 43ZA(1)(a)(i) of the Criminal Code 1983 (NT) for momentary digital penetration through clothing. The average head sentence for rape in the Territory was 6 years and 5 months where punishment and deterrence were the principal sentencing purposes but here protection of the community was more important. His previous dysfunctional behaviours were not treated as prior criminal history but bore on his character, his prospects of rehabilitation and the need for community protection. A discount was given to his participation in the special hearing.
SENTENCING – recording conviction for domestic assault In Hardy v Rigby [2020] NTSC 42, Hiley J upheld the recording of a conviction for a man’s aggravated assault of his wife, adding to the principles stated in Rigby v Benfell [2020] NTCA 9 below that a conviction is a statement by the court about the offending behaviour which the court on behalf of the community denounces as being incompatible with the values of contemporary society and that sometimes the seriousness of the offending will require a conviction notwithstanding that the offender might be of otherwise unblemished character. Domestic violence in the form of strangulation of a wife is one of those offences.
SENTENCING – recording conviction for DUI In Rigby v Benfell [2020] NTCA 9, the Court of Appeal said the Local Court was right to record a conviction for DUI the morning after drinking resulting in an accident and that (a) the court does not have to find good character, triviality and extenuating circumstances under s8(1) of the Sentencing Act before making a “non-conviction” order but must consider all three issues; (b) the provision is inclusive rather than exhaustive of the matters properly taken into account; (c) the threshold is that there is some satisfaction that one of the prescribed considerations and other circumstances would make a reasonable person consider it expedient to be lenient; (d) the existence of a prescribed state of affairs is not a “mere peg” on which to hang leniency; (e) a conviction may be necessary where the offender is mature and deterrence is being given weight, especially for breaches of regulatory or social legislation; (f) the sentencing exercise is always undertaken with regard to the impact recording a conviction may have on the offender’s economic and social well-being in a general sense.
SENTENCING – second category R v Roe Supply In Chin v The Queen [2020] NTCCA 7, the Court of Criminal Appeal reduced a sentence for supplying about 224 grams of methamphetamine from 10 years with five years non-parole to eight years and six months with four years and three months non‑parole for a second category
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R v Roe offender. The quantities were not as large as in more serious supply cases, there was no cross-border transportation, and the offender did not make any great profit and he was only one level above users and street dealers.
SENTENCING – violent offences – residual discretion In v Irwin [2020] NTCCA 3, the Court of Criminal Appeal held that a sentence of at least five years should have been imposed on a violent offender instead of 40 months but exercised the residual discretion to dismiss the Crown appeal because the offender was young, had been released from prison for about six weeks and was participating well in a rehabilitation program which he would not receive if returned to prison.
SUCCESSION – spouse disclaiming in intestacy In The Estate of Gibbs [2020] NTSC 41, Barr J granted letters of administration under s22 (1) of the Administration and Probate Act 1969 (NT) to the daughter of an intestate deceased despite the estate being less than $350 000 (in which case the spouse was entitled to the estate) because the spouse did not appear and pray for administration and the daughter was a fit and proper person. The spouse disclaimed an interest in the intestacy, and the law recognises that a beneficiary may disclaim at any time, at least up until the issue of the grant of administration, and the disclaimed entitlement devolves on the next person or class of persons who may establish an entitlement.
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SUCCESSION – beneficiary a “person under a disability” In The Estate of Gibbs [2020] NTSC 41, Barr J said that a beneficiary under an intestacy who was a “person under a disability” under the Family Provision Act 1970 (NT) might make an application for provision out of the estate if adequate provision were not available to her under the intestacy provisions contained in the Administration and Probate Act 1969 (NT).
SUCCESSION – invalid deed of family arrangement In The Estate of Wilson [2020] NTSC 29, Kelly J declined to grant letters of administration to an applicant who was proposing to administer the intestate estate in accordance with the terms of a deed of family arrangement among spouse, children and stepchildren who were or might be entitled to make an application Family Provision Act 1970 (NT). It is no possible to contract out of the terms of that Act and any agreed apportionment must have the court’s approval. Administration would be granted if the applicant undertook to administer the estate in accordance with the intestacy provisions of the Administration and Probate Act 1969 (NT), after which it was a matter for the beneficiaries to make gifts if they wished.
SUCCESSION – construing wills In the Estate of Williams [2020] NTSC 26, Hiley J held that a court is generally required to give effect to the testator’s intentions as expressed a will and is not permitted to remake a will. The question is not what the testator
meant to do when making the will, but what the written words used mean in their context. The testator’s intention is gathered from the language of the will which is given its usual or ordinary grammatical meaning even if the result is harsh, eccentric or capricious. Extrinsic evidence may be used where language is meaningless or ambiguous but a court is not “entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said. Even where the will does not truly reflect the testator’s intention (as espoused from extrinsic evidence), courts are hesitant to alter clear and unambiguous words used in the will.
ROBERT GLADE-WRIGHT FOUNDER, AUTHOR, SENIOR EDITOR THE FAMILY LAW BOOK
www.thefamilylawbook.com.au
Family law judgments SUMMARY DISMISSAL – denial of procedural fairness and natural justice – matter decided on issues not raised in hearing – husband not provided the opportunity to be heard on issues relevant to trial judge’s conclusion In Ritter & Ritter and Anor [2020] FamCAFC 86 (20 April 2020) the Full Court (Ainslie-Wallace, Aldridge & Rees JJ) considered a husband’s appeal from Judge Obradovic’s decision to summarily dismiss his application to set aside a final consent property order made on 16 July 2012 (“the 2012 order”). The second respondent was the parties’ adult daughter. The 2012 order provided for the wife to retain her share of a property jointly owned by the husband and the wife (“Property C”) and for the husband’s share to be transferred to the daughter. The parties married in 1988, separated in 2009 and divorced in 2012. The husband served a term of imprisonment in 2007 and was required to pay the NSW Crime Commission $100 000. He commenced a second term of imprisonment on 28 March 2012 and was released on 27 December 2013. The husband alleged that in June 2012 his daughter visited him in prison and said the Crime Commission were seeking further funds as they were aware that he had an interest in Property C. He signed a document saying he’d sell his interest in the Property C to the daughter for $1. She told him she’d sell Property C and buy another property in his name.
After selling Property C for $540 000 in July 2013, the wife and daughter purchased two other properties, Properties A and B. After his release from prison the husband moved into Property B as the daughter told him he owned it and she had taken out a $50 000 mortgage to purchase the property. The husband paid the daughter rent. The property was registered in the name of the daughter and she evicted him from Property B. He issued proceedings seeking the 2012 order be set aside on the basis that the daughter materially misled him. The wife and the daughter sought summary dismissal of the application. The crux of the husband’s appeal was that Judge Obradovic failed to afford him procedural fairness, broadly in relation to two issues: (1) the illegality of the husband’s motives in transferring Property C to the daughter; and (2) whether the husband’s application had reasonable prospects of success. The Full Court said (from [38]): “The first matter to be observed here is that this issue, the husband’s motive in transferring his interest to his daughter or, put another way, whether the husband had “clean hands” so as to entitle him to the exercise of the discretion of the Court, was not raised in the hearing before the primary judge either by counsel for wife, solicitor for the daughter or her Honour. The first time that this issue emerged was in the judgment.
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[39] …[H]ad her Honour raised this issue with the parties, her Honour may have had the benefit of argument on the point and of course the husband would then have been on notice of her Honour’s concerns and been able to respond. [40] … [H]er Honour’s characterisation and application of the principle is wrong as a matter of law. It would be hoped that had her Honour raised this issue with the parties the correct legal principles could have been considered. [41] The law on the equitable principle of “unclean hands” is quite well known. The Full Court in Andrews & Andrews [2007] FamCA 562 adopted the following principle: ‘56. The maxim “he who comes into equity must come with clean hands” is discussed in Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: Butterworths, 4th ed, 2002) at [3-110] as follows: “It means that when a plaintiff whose conduct has been improper in a transaction seeks relief in equity that relief will be refused. … [i]t is an historical reflection of the fact that courts of equity began with courts of conscience”. (See Cory & Gertcken (1816) 2 Madd 40; 56 ER 250; Cawthorn & Cawthorn (1998) FamCA 37). [42] … [T]he maxim is not of universal application and only applies where the improper
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conduct of the plaintiff has “an immediate and necessary relation to the equity sued for” (see Meyers & Casey [1913] HCA 50; Dewhirst & Edwards [1983] 1 NSWLR 34 at 51). (…) [47] … [H]aving found that the husband had an arguable case under s79A of the Act, her Honour then continued and concluded that a court would not exercise its discretion in the husband’s favour because of his attempt to “pervert the course of justice when he had no reason to do so” (at [69]). [48] Her Honour’s own reasoning shows that she considered the husband’s case to be arguable, albeit weak. That a case is said to be weak is insufficient to justify its summary dismissal (see Coe & The Commonwealth [1979] HCA 68; Wickstead & Browne (1992) NSWCA 272). … [B]ut for her Honour’s consideration of the husband’s conduct, the application for summary dismissal should not have been dismissed.” The Full Court continued (from [51]): “Natural justice requires that anything relied upon by a court in reaching its decision be made known to the parties to the proceedings prior to the making of the decision, so that parties may oppose reliance upon it, produce evidence in relation to it and/or make submissions about it. Reliance upon material which does not emerge in that manner amounts to appealable error.
[52] Of course, not every denial of procedural fairness will be sufficient to establish appellate error, critical consideration needs to be given to the consequence of the denial and whether it is material (see Stead & State Government Insurance Commission [1986] HCA 54; Taylor & Taylor (1979) HCA 38). (…) [53] … [H]er Honour’s conclusion that the husband was attempting to, in effect, profit by his own fraud was significant to her ultimate decision and we are of the view that by failing to raise the issue with the husband, or at all during the proceedings, her Honour denied him procedural fairness. [54] This failure of itself is sufficient to cause the appeal to be allowed. This is because a denial of procedural fairness in relation to a material matter strikes at the validity and acceptability of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred the orders must be remedied (see Concrete Pty Ltd & Parramatta Design & Developments Pty Ltd [2006] HCA 55).” The second ground for the argument as to lack of procedural fairness was the conclusions reached by Her Honour in relation to the sufficiency of the husband’s evidence in support of his application and that this misapplied the principles of summary dismissal.
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The Full Court said (from [63]): “… [T]he husband having no notice of her Honour’s intention to traverse the evidence before her to see whether he could make good his claim to orders pursuant to s79A, failed to afford him procedural fairness in circumstances where the failure had a material effect on her Honour’s orders.” the Full Court continued (from [66]): “The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable … [67] It is plain that her Honour did not take the husband’s evidence at its highest and in the context of these principles. Her Honour did not find that the husband’s account of the circumstances in which he came to sign over his interest in Property C was inherently incredible or unreliable and thus there was no basis for not accepting it for these purposes.” The appeal was allowed. The Full Court re-exercised the court’s discretion, refusing the application for summary dismissal and ordering the respondents to pay the husband’s costs equally.
PROCEDURE – interim application – litigation funding sought from second respondent (not a party to the marriage) In Edson & Whitney and Anor [2020] FamCA 184 (25 March 2020), Rees J considered an application by a husband in property proceedings for litigation funding from three sources: the second respondent (the wife’s mother); the wife by way of lump sum paid by the wife obtaining a mortgage over her real property; and the wife by way of “dollar for dollar order”. To enable the wife to obtain a mortgage, the husband sought that the second respondent waive her security over the wife’s property. The husband and wife were married in 2001 and separated in 2018. The two children of the marriage, aged 17 and 15 years lived with the wife. The wife’s case was that pursuant to two Deed of Loans, she owed her mother $3 616 000 and almost $350 000. The loans most likely exceeded the value of the assets of the marriage and were secured over real property registered solely in the wife’s name. The wife’s application was that the husband retain his superannuation of approximately $429 000 and there be no adjustment of property between the parties. The court said (from [6]): “There is no doubt that there is power to make an order for costs against a third party, in this case the 2nd respondent.
[7] In Knight & FP Special Assets Ltd [1992] HCA 28, Mason CJ and Dean J stated: ‘For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.’ [8] The Full Court of the Family Court in McAlpin & McAlpin [1993] FamCA 71, having considered those and other authorities stated: ‘We do not think that we should conclude our discussion of the matter, however, without saying that we think that the approach taken by his Honour in this case, is one that should be taken with great caution. It is one thing for a family or organisation to stand behind a party in proceedings under the Family Law Act, either by paying their costs or supporting them in the course of the litigation, but it is quite another matter, in most cases, to make orders against an impecunious
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party in the expectation that such other person or persons will discharge the orders on their behalf.’
PROPERTY – interim hearing – forum non conveniens – stay – anti-suit injunction – enforceability of overseas order
The wife’s evidence was that she had a loan from her brother for legal fees in the sum of $110 000.
In Scarffe & Obannon [2020] FamCA 77 (18 Feb 2020) Wilson J considered the husband’s application for an anti-suit injunction against the wife pursuing an application for property settlement in the Family Justice Courts in Singapore, and the wife’s application for a dismissal or stay of the proceedings in the Family Court of Australia.
Except for the superannuation, the husband had no other substantial assets. The court declined to make the order that the second respondent waive her security to allow the wife to borrow $180 000 and advance that sum to the husband for legal fees. The court continued (from [37]): “[T]here is no possibility that, if the 2nd respondent were required to waive her security to allow the wife to borrow $180 000, thus diminishing the security for her asserted loan, and if the husband’s challenge is not successful, the 2nd respondent can ever be compensated by the husband for her loss. (…) [39] It would not be just and equitable to interfere with the security where the beneficiary of the security could not be compensated for any loss occasioned.” The husband’s application for litigation funding was dismissed.
The wife issued proceedings in Singapore in 2019. The husband’s application in Singapore to restrain the court in Singapore from hearing the matter and to stay those proceedings was dismissed. On 21 March 2019 the husband filed an initiating application in the Family Court of Australia. The wife filed her response on 18 September 2019 seeking the proceedings in Australia be dismissed, stayed, that the husband be restrained from taking any steps in the proceedings and for costs. The husband’s position was that the majority of assets were in Australia and that the Singaporean litigation wouldn’t fully determine all property issues between the parties. The husband and wife met in 19951996, commenced cohabitation in Australia in 1997 and married in 2014. There were three children of the marriage aged 15, 13 and 10
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years. Save for six months in the UK, from 1997 – 2014 the family lived in Australia then moved to Singapore in 2014 before the parties separated in 2016. At separation the husband left the family home and in 2018 he relocated to Australia. The wife and the children remained living in Singapore. The Australian asset pool was at least $3.4m but likely more due to assets which were not valued including the wife’s inheritance in Australia of approximately $5m. The Singaporean assets consisted of the wife’s funds in a bank account and her company. After considering the applicable law in Singapore, His Honour considered the wife’s position that Australia was the clearly inappropriate forum. The court said (from [52]): “In Hillam & Barret [2019] FamCA 193,between [40] to [64] I undertook an extensive examination of the authorities relevant to the principles that apply to the grant of an anti-suit injunction. While lengthy, it is utile to re-state those principles here. There I said the following: ‘[40]The legislative power to make an order in the nature of an anti suit injunction has been said to be reposed in s 34 of the Family Law Act or in the inherent jurisdiction of this court conferring upon it power to make necessary and appropriate orders to avoid injustice. That view was espoused in Hunt & Hunt [2005] FamCA 849. In CSR Ltd & Cigna Insurance
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Australia Ltd (1997) 189 CLR 345 the High Court of Australia held (eight years earlier) that the power to grant an anti suit injunction is not restricted to confined or closed categories and is to be exercised when the administration of justice requires or where such an order is necessary for the protection of the court’s own proceedings or process. [42] It seemed to me that two main issues fell for consideration in my determination of the husband’s application for an anti suit injunction. The first related to this court’s power to make such an order. The second was whether the jurisdiction should be exercised in the circumstances of this case. [43] …[A]n abundance of authority exists to the effect that it is within power for this court to restrain a party to a proceeding in this court from conducting a proceeding raising similar issues in another court. … [44] In 1997 the High Court of Australia pronounced upon aspects of the anti-suit injunction in CSR Ltd & Cigna Insurance Australia Ltd (1997) 189 CLR 345. … After determination by a single judge then by the Court of Appeal of the Supreme Court of New South Wales, the High Court made a collection of observations about the anti suit injunction. Those may be synthesised in the following manner: a) an order enjoining a party from commencing or pursuing a proceeding in a foreign court which has jurisdiction to determine the same
controversy can only be exercised where an equity arises entitling one party as against the other to an injunction to restrain the other from proceeding in the foreign court; b) it is not possible determine in advance the circumstances that give rise to such an equity…; c) such an equity arises when it would be unconscionable for the party enjoined to proceed in the foreign tribunal; d) as was held in Castanho & Brown & Root (UK) Ltd [1981] AC 557 the jurisdiction to issue an anti-suit injunction is not directed against the foreign court but against the party who would invoke that court’s jurisdiction and the order is made “where it is appropriate to avoid injustice”; e) the making of an order restraining a person within the jurisdiction from pursuing a remedy in a foreign court where that person has a cause of action must be approached with caution because such an order is an interference with the process of justice in that foreign court, as was held in British Airways Board; British Caledonian Airways Ltd & Laker Airways Ltd [1985] AC 58; f) the power to grant an anti suit injunction should not be exercised without the court concerned first considering whether its own proceeding should be stayed and, in
determining whether its own proceeding should be stayed, the test is as stated in Voth & Manildra Flour Mills Pty Ltd [1990] HCA 55 and in Oceanic Sun Line Special Shipping Co Inc & Fay [1988] HCA 32, namely, a stay will only be granted if the Australian court is a clearly inappropriate forum; g) the counterpart of the court’s power to prevent its process from being abused is its power to protect the integrity of those processes once set in motion … ; h) the inherent power to grant an anti suit injunction is not restricted to defined or closed categories … ; i) the power to grant an anti suit injunction is to be exercised when the administration of justice so demands or where necessary for the protection of the court’s own proceedings or processes; and j) if the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement in the occasion for considering whether to grant an anti suit injunction or other relief or, if the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceeding or to grant an anti suit injunction.
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(…) The court continued (from [64]): “Self-evidently, it is undesirable for a proceeding to be on foot in Singapore in which the precise subject matter is being addressed as is being addressed in this court. The financial cost, personal toll to the litigants and inconvenience, to say nothing of the risk of inconsistent decisions of the two courts is manifest. …” The court concluded (at [66]): “[66] In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.” The court dismissed the wife’s application and granted the husband’s anti suit injunction.
PARENTING – contravention – COVID-19 – reasonable excuse – variation of primary order In Kardos & Harmon [2020] FamCA 328 (7 May 2020) McClelland DCJ considered a contravention application by a father in relation to a parenting order made in 2018 (“the 2018 order”).
The 2018 order provided for the three year old child (“X”) to spend four days per month with the father. The mother was to deliver X to the father at Darwin Airport or, provided 90 days written notice is given to the mother, Brisbane Airport. The father was too return the child to the mother at Adelaide Airport at the end of his time. The mother and child lived in Adelaide. The father lived in the Northern Territory and relocated to Brisbane in January 2020. At that time he notified the mother of his relocation and the parties agreed that in March and April 2020, the child would spend time with him in Brisbane. The child had not spent time with the father in March or April 2020 due to the mother’s concerns associated with the COVID-19 pandemic. The father argued that the mother had no reasonable excuse for failing to deliver the child to Brisbane. The mother said that due to the mother’s concern for the child’s health and the effect of border restrictions which, according to the mother would require the mother and child to remain in self isolation for 14 days after their return to South Australia, she had a reasonable excuse. The court held that the father had not discharged his onus of proof to establish that he had provided 90 days’ written notice that he required the mother to deliver the child to Brisbane and therefore that he was unable to establish the contravention of the 2018 order. The court continued on to examine whether the mother
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had a reasonable excuse for contravening the 2018 order. The court took judicial notice of a number of publicly available documents in relation to COVID-19. McClelland DCJ said (at [66]): “I … accept that the restrictions imposed by the Queensland Government to restrict crossborder movements of persons into that State, during the period of the COVID -19 pandemic, do not restrict the mother from travelling with the child from Adelaide to Brisbane in order for the child to spend time with the father. However, that finding does not displace the mother’s concerns that clearly relate to the health of the child. (…) [76] Having regard to that publicly available information, I am satisfied that the mother believes “on reasonable grounds” that not allowing the child to spend time with the father, on the dates which are the subject of the Contravention Application, was necessary to protect the health of the child and the mother. This is because the mother would not have been able to maintain safe social distancing during the period of the aircraft travel and there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel. …
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(…) [77] In terms of the broader operation of s 70NAE(5)(b) of the Family Law Act, it was also contended, by the mother, that the border restrictions imposed by the South Australian Government would require both the mother and the child to self-quarantine for a period of 14 days after their return from Brisbane to Adelaide. (…) [81] …[I]t has been unnecessary for me to determine this issue in light of the finding that I have made that the mother has a reasonable excuse for not having delivered the child to the father in the months of March and April 2020 as result of the reasonable concerns she has for the child’s health. However, had it been necessary to determine this issue, I would have determined it in favour of the mother …” The mother sought the variation of the 2018 order to enable the child to spend time with the father in Adelaide and for make up time to occur in Adelaide. The father sought that the 2018 order be varied to enable the child to spend a longer period each month with him in Brisbane to make up for any time lost. The court continued (from [113]): “A useful discussion of risk in the context of the Court balancing the two primary considerations of the child having a meaningful relationship with both parents as against risks associated with the current COVID-19 pandemic is set
out in the Canadian Family Court of the Superior Court of Justice in the matter of Ribeiro & Wright 2020 ONSC 1829; [2020] CarswellOnt 4090. In that decision, Pazaratz J noted, at [6] that, as is the case in Australia, “the health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19”. [114] His Honour further noted, at [8], that, as in Australia, “directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible”. [115] His Honour stated, at [10], that, while many aspects of our social interactions will be placed on hold as a result of the directives from government, “children’s lives — and vitally important family relationships — cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset”. His Honour observed that, unless circumstances dictated otherwise, in these “troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever” and that “a blanket policy that children should never leave their primary residence — even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child”. [116] His Honour, at [17], noted that each family will have its own unique issues and complications,
and, at [21], each case will have to be determined on a case-by-case basis. In considering concerns raised in respect to the impact of the current COVID-19 pandemic, Pazaratz J, at [21], held that: ‘The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to — including social distancing; use of disinfectants; compliance with public safety directives; etc.’ [117] That approach is one that is of assistance in this case. …[D]espite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.” The contravention application was dismissed and the 2018 order was varied to facilitate the father spending the ordered time with the child in Adelaide and if that was not possible, for the child to spend make up time in Adelaide with the father.
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PROCEDURE – interlocutory application – restraint on solicitor acting – breach of confidence – duty of loyalty – solicitor potential witness in proceedings – effect of delay in bringing application In Harlen & Hellyar [2020] FamCA 21 (28 January 2020), McEvoy J considered an interlocutory application by a wife to restrain the husband’s solicitors from acting on the basis that the wife had imparted confidential information to the husband’s solicitor (“Mr Da Gama”) about her affairs when they acted for her. The substantive proceedings involved the wife’s application to have a s 90UC financial agreement declared void or set aside, and the husband’s application to enforce the financial agreement. The wife immigrated to Australia in 2008 with her then husband Mr A. The husband and wife met in 2011. They commenced a relationship in January 2012 whilst they were both married to other people, and in February 2012 and March 2012 ended their pre‑existing marriages. The husband and wife commenced living together in a de facto relationship in 2012 and separated in 2017. In August 2012 the husband and wife went to see Mr Da Gama for advice in relation to her separation from Mr A and visa issues. The wife alleged that at the time of the meeting with Mr Da Gama, the husband had discussions with Mr Da Gama about the preparation of a document which would set out what the husband and
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wife would each receive if their relationship was to end. The wife said that on 14 October 2012, the husband and wife attended upon Mr Da Gama’s offices and signed such a document. An interpreter was present and a Mr F (another solicitor) also attended and explained the main paragraphs to the wife with the assistance of an interpreter. The husband allegedly told the wife that Mr F was a good friend of Mr Da Gama. The wife alleged that Mr Da Gama continued to act for her in relation to her marriage to Mr A, and she and the husband attended Mr Da Gama’s office many times in relation to her issues with Mr A. Mr Da Gama acted for the wife in her application for an intervention order against Mr A. The husband denies that the parties entered into a financial agreement in 2012. The wife says she was provided with a copy on the day of signing but the husband subsequently took it from her and she no longer had a copy. The wife alleged that a second financial agreement was signed in 2014 at the offices of Mr Da Gama and that it was only Mr Da Gama and the husband present when she signed, but she was told that other people would sign later. The husband alleges that the wife was represented by Mr F in relation to this agreement and that there was an interpreter present. The wife says she did not understand the agreement and signed where she was told. The court said (from [28]):
“Much of the written and oral submissions made by senior counsel for the applicant focused upon the alleged confidentiality of information imparted by the applicant to VDG. The applicant submits that the fact that VDG had information of hers which she asserts is confidential provides a sufficient basis for the Court to enjoin VDG from continuing to act … [29] Although at one level this submission is not without force, the difficulty lies in identifying the information said to be confidential, whether it is in fact confidential by reason of the fact that it appears to be common ground that any information disclosed by the applicant to VDG was disclosed in the presence of the respondent, and whether any information disclosed is actually relevant to the subject matter of the current proceeding… (…) [31] It may be accepted that the applicant’s contention that VDG is in possession of confidential information of hers which is of significance for the purposes of this proceeding is attended by, at least, problems of definition. Were this to be the only basis of the present application difficult questions in relation to the confidentiality of the relevant information, its relevance, and whether any confidentiality had been waived, would require determination. On the existing state of the evidence an application on this basis alone may be difficult to sustain.
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(Footnotes Omitted) [32] … [T]he applicant also contends that in all the circumstances there is no question but that Mr Da Gama would need to be called as a witness in relation to the circumstances in which she signed the 2014 Agreement. It is submitted that it is difficult to conceive of a case where a solicitor could be more involved in the subject matter of the litigation, and his conduct the subject of greater criticism and attack, than that of Mr Da Gama in this case. The applicant submits that a primary issue in the proceeding is how many financial agreements there were — the applicant says two; the respondent (and, it may be presumed, Mr Da Gama) say there was one. Senior counsel for the applicant contended at the hearing of this application that Mr Da Gama drew the 2014 agreement and on the applicant’s case witnessed the applicant sign it and arranged for Mr F and the interpreter to provide the necessary certifications after the fact. (…) [35] In circumstances where there is highly contradictory evidence, involving issues as to the credibility and the professional conduct of Mr Da Gama and the propriety of the respondent’s conduct, the applicant invokes the Court’s inherent jurisdiction to restrain a solicitor from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of
justice: Kallinicos & Hunt [2005] NSWSC 1181; Grimwade & Meagher [1995] 1 VR 446, 452; Osferatu [2015] FamCAFC 177. The applicant says that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that VDG should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. [36] … [T]he respondent says that it would be oppressive to remove his solicitor and that the applicant has waited too long to seek to do so. ( … ) The respondent refers to Miller & Martin [2019] VSCA 86, at [60] on the significance of a delay in bringing an application such as the present one, and to a decision in Davey & Silverstein [2019] VSC 302 where an Associate Justice of the Supreme Court of Victoria also considered the late stage at which a removal application had been made. (…) [38] …[T]he respondent refers to the recent decision of the Full Court in Sellers & Burns and Anor [2019] FamCAFC 113, where the Full Court reversed a decision of a trial judge that a solicitor should be restrained from acting because there was a “real possibility of the solicitor being required to give evidence”. In Sellers & Burns the Full Court took the view that while it might be that evidence from the solicitor could cast light on particular facts, that evidence would not be determinative. In
this sense the solicitor was not regarded as a material witness. The Full Court allowed the appeal in circumstances (unlike the present) where the husband had indicated that he would not call his solicitor. (…) [42] …[I]n my view, a fair-minded, reasonably informed member of the public would conclude that the independent objectivity of Mr Da Gama as a solicitor in the case and/ or a witness could be compromised by conflicts between his obligation of loyalty to his client, his role and knowledge as a witness of material facts, and his potential personal interest. Thus, the proper administration of justice requires that Mr Da Gama should be prevented from acting, in the interests of the protection of the integrity of the trial process and the due administration of justice, including the appearance of justice. (Footnotes omitted) [43]… I do not accept that the fact that there has been some delay in the bringing of the application is a factor which, in the exercise of my discretion, should prevent Mr Da Gama from being restrained from acting…” The court ordered that the respondent’s solicitors be restrained from acting.
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PROCEDURE – application to discharge referral to arbitration – family violence – withdrawal of consent to arbitration – non-arbitrable disputes In Palgrove [2020] FCCA 846 (27 March 2020) Judge Harman considered an application by a wife to discharge a referral to arbitration, largely for reasons related to the wife’s ability to be present in the same location as the husband. The financial dispute between the parties was referred to arbitration pursuant to s 13E of the Family Law Act 1975 (Cth) (“the Act”) on 18 June 2019 with the consent of the parties.
prosecuted as a criminal offence or otherwise; d) Cases involving significant allegations of family violence.” (Footnotes omitted). The court indicated it would make orders requiring the arbitration to be conducting by video conferencing facilities and in response to the withdrawal of consent to the arbitration, the court continued (from [30]): “It would seem that the parties are relatively agreed in their position that the referral to arbitration should be discharged and the parties, instead, referred to a conciliation conference…
The court said (from [15]): “In the absence of any settled precedent, at least in the field of family arbitration within Australia, (and noting the current limitations of arbitration to financial proceedings), it could be argued that disputes are not arbitrable if the dispute relates to or will involve a finding of fact relating to a matter in which there is a public interests such as: a) The perpetration of fraud by a party (whether upon the other party or a third party such as the Office of State Revenue of ATO); b) Relief that will impact third parties; c) Allegations of criminal conduct. This may include allegations of family violence, whether
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[31] I do not intend to take that path, even though both parties consent. [32] As discussed in Loomis & Pattison [2020] FCCA 345 and the authorities referred to therein, the Court should be loath to interfere in the arbitration process, other than its facilitation and support once it is ordered. That is not to suggest that there are not circumstances where it is impossible or inappropriate for the Court to interfere. I am not, however, satisfied that this is such a case. [34] The outcome the parties desire to achieve can be achieved through the prescriptive order I have referred to. It was possible for it to be achieved, subject to the consent of the parties, as part of negotiation of the arbitration agreement.
(…) [36] Whilst consent is purported to be withdrawn, I am not satisfied that I should simply accept that position and return the matter to the Court’s jurisdiction. There are a number of reasons for that. Firstly, the arbitrator is clearly seized of the matter. The arbitration has commenced. There was a contested application for adjournment of the arbitration, both parties and their counsel having presented for the purpose of the arbitration proceeding. The parties have already expended time, effort and funds in procuring that process and have commenced it. [37] It would be more cost effective for the arbitration to proceed on the basis proposed, by video, subject to the dispute remaining arbitrable and both parties being sufficiently supported in the process to feel safe. [38] Secondly, the delay that these parties will face, if the matter returns before the Court, is extreme. … That disadvantage to the parties, when it can be cured through a prescriptive order as to how the arbitral process should proceed and thus that disadvantage avoided, should play some significant role in determining the issue. (…) [40] There is certainly a public interest in ensuring that aberrant behaviour such as family violence is addressed and appropriately addressed through judicial
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process. Arbitration is private and results in a confidential determination and thus “privacy” as to findings of fact. Judicial process, on the other hand, is open, transparent and published (albeit in anonymised form using non-identifying pseudonyms). [41] In the context of this individual case, the evidence not yet tested and the arbitration ready to proceed, I am satisfied that the matter can be safely arbitrated with prescription as to process. That is particularly so as there is no suggestion that the Kennon claim was not crystallised and apparent before the parties each provided their consent for referral to arbitration. (Footnote omitted) Each party was legally represented and advised at the time the referral to arbitration was made. I am not satisfied that mutual consent to a discharge of the referral should dictate the outcome.” The court made prescriptive orders in relation to the conduct of the arbitration and dismissed the application in a case.
CHILDREN – child abduction – Hague Convention – requesting parent with significant criminal history permanently banned from Australia – unmanageable grave risk of family violence and an intolerable situation if return ordered In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) the Full Court (Ryan, Aldridge & Watts JJ) heard a mother’s appeal from a decision of Ainslie-Wallace J under the Hague Convention on
the Civil Aspects of International Child Abduction requiring her to return to New Zealand with her two children. The proceedings at first instance were brought by the Secretary of the Department of Communities and Justice (NSW) as the central authority and the mother the respondent. The mother was born in Australia in 1987 and the father was born in 1973 in New Zealand. The father was convicted in New Zealand of a number of offences, including multiple assaults, drink driving, possession of cannabis and resisting arrest between March 1991 and February 1997. After arriving in Australia in 1999/2000 the father was convicted of assault, damaging property and other offences between 2001 – 2003. In 2006 father was convicted of further offences the result of which was that he was sentenced to eight months’ imprisonment. In 2010 the father was convicted of assault and sentenced to further imprisonment and in 2012 he was convicted of contravening an ADVO and was again sentenced to imprisonment. The parties met in 2004, commenced a relationship in 2007 and commenced cohabitation a few years later. The father had six children to previous relationships and the mother one (born in 2005). The parties separated in 2019. The first child of the relationship ‘X’ was born in 2016 in Australia. There was a history of domestic violence incidents between the
parents and the records revealed that there was a history of the mother refusing to co-operate with police in having the father charged and securing domestic violence orders. The father was deported to New Zealand in 2017. The mother subsequently moved to New Zealand with the father and ‘Y’ was born in New Zealand in August 2017. There were further reports of family violence in New Zealand. On 10 May 2019 the mother obtained orders for the children to live with her and she and the children departed New Zealand the same day. Accepting the mother’s evidence that she had permanently separated from the father, Ainslie-Wallace J found that the children were not at grave risk if they return to New Zealand. The mother argued that if they were returned to New Zealand, that the children would be exposed to a grave risk of physical or psychological harm. Focusing on the “grave risk” and “intolerable situation” defence to a return application, the Full Court said (from [59]): “The leading authority on these issues is DP v Commonwealth Central Authority (2001) HCA 39. There, Gaudron, Gummow and Hayne JJ explained at [40] that: ‘So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her]
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return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.’ [59] … The predicted risk must have reached such a level of seriousness as to be characterised as grave. Although the word ‘grave’ characterises the risk rather than the harm, ‘there is in ordinary language a link between the two’ (Wolford at [57] and [62] citing In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 …). [60] The mother carries the onus of proof in establishing the defence. [61] As we consider this issue, it needs to be remembered that the focus must be on the children
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(Harris v Harris (2010) FamCAFC (“Harris”)). But the children’s primary carer’s circumstances are highly relevant. In Harris the Full Court adopted remarks by Hale LJ … in her dissenting judgment in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515, who explained the situation thus: 43. It is important to remember that the risks in question are those faced by the children, not by the parent. But those risks may be quite different depending upon whether they are returning to the home country where the primary carer is the ‘left behind’ parent or whether they are returning to a home country where their primary carer will herself face severe difficulties in providing properly for their needs. Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children. We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it…
psychological and economic pressures, which creates the risk. A protection order, were it to be readily available, would not solve all their problems… … 58. … It would require more than a simple protection order in New Zealand to guard the children against the risks involved here …” The return order was set aside. Watts J agreed with the conclusion of Aldridge and Ryan JJ but provided his own reasons.
OTHER ROUTINE PROCEDURES – appeal – denial of procedural fairness – unwarranted judicial interventions – judge expressing a preliminary view – counsel unable to properly conduct cross-examination In Finch [2020] FamCAFC 60 (20 March 2020) the Full Court (Ryan, Aldridge & Tree JJ) heard a wife’s appeal of a decision of Willis J dividing the net property pool of the husband and the wife equally between them.
… 56. But it cannot be the policy of the Convention that children should be returned to a country where, for whatever reason, they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. But in this particular case, it is the totality of the situation in which the children found themselves, a combination of serious
The wife and husband were aged 56 and 58 years respectively. They commenced cohabitation in 1987, married in 1991 and separated in 2013 (a relation of 26 years). There was one adult child of the relationship. The trial took place over three days in 2018. The wife appealed on the basis of procedural unfairness, specifically claiming five matters the primary one being alleged excessive judicial intervention during the hearing. The wife alleged that the
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number, frequency and duration of Willis J’s interventions, together with the nature of the exchanges and the tone of voice from time to time demonstrated that the interventions were excessive. The Full Court summarised the legal principles, saying (at [14]): “In Galea v Galea (1990) 19 NSWLR 263 at 281–282 … , Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles in relation to excessive judicial interference, as follows: ‘1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA). (…) 3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion” (…) 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the
interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: (citations omitted) 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. (…) [16] Further, the following principles may be distilled from the previous authorities in relation to excessive judicial intervention: (a) … [E]xcessive judicial intervention leading to a lack of procedural fairness is a separate basis of appealable challenge (RPS v The Queen (2000) HCA 3; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 (‘Royal Guardian’) at [35]–[39] and Jorgensen [2019] FCAFC 113 at [95]); (b) A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal (Royal Guardian at [30]–[33] and [255]);
(c) The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness (Royal Guardian at [18]; Royal Guardian … and Jorgensen at [102]); (d) Inept representation may justify greater judicial intervention, in order to ensure the proper use of court resources, and avoid delay or unnecessary prolongation of the hearing (Royal Guardian at [38]); (e)Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views” (Royal Guardian at [220] … ; and (f) The number, frequency and duration of the judicial interventions will be relevant, as will their nature and context (including the stage of the trial), content and manner of delivery (including tone of voice) (Royal Guardian at [164] citing Galea). Upon a review of the transcript of the cross examination of the husband, the Full Court identified that the cross examination of the husband occupied one hour and 59 minutes and Willis J’s interventions occupied in excess of 35 minutes of that cross examination. The Full Court commented (from [23]):
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“Factoring those sorts of matters into account, we are confident that in fact, counsel was precluded from undertaking cross-examination for at least an hour of the nearly two hours it notionally occupied. [24] It is informative that, if one deducts the 35 minutes which the impugned interventions took from the length of the crossexamination of one hour and 59 minutes, there was a total of no more than 84 minutes of cross-examination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. Given there were many benign interventions, the reality is that the interval was, on average, much less. This frequency of intervention is borne out by a review of the transcript; the longest period counsel was able to proceed without interruption saw him ask 15 questions; often, the number of questions was much less. [25] The number, frequency and duration of the primary judge’s interventions during the husband’s evidence are of serious concern. Counsel for the wife was significantly impeded in conducting his cross-examination, even, as we have noted, from his very first question.” The Full Court further said (from [59]): “ … [W]e conclude that frequent hallmarks of the impugned interventions were, as the wife contended, wholly
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unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a “preliminary view” by the primary judge. [60] It is no exaggeration to say that, during his crossexamination of the husband, virtually every time counsel for the wife commenced questioning on an issue, the primary judge’s response was to either berate him by questioning the length of time it might take, the competence of the structure of his questions, or their relevance, or sought to impugn his integrity. [61] During the wife’s evidence, it was largely the same, albeit the primary judge’s interventions often took an even more personalised form and were exclusively directed to the wife herself. (…) [65] The primary judge’s nigh incessant interruption of the wife’s counsel’s cross examination of the husband, and to a lesser extent, the wife herself during her evidence, by interventions which were often unwarranted, wrong, unduly personalised, and which evidenced intermittent entry into the arena, compel the conclusion that they were excessive. The tone of voice in which they were sometimes undertaken only serves to reinforce that conclusion. (…)
[66] Of themselves, the excessive interventions created not merely the appearance of procedural unfairness, but also the actuality of it. We are well satisfied that counsel for the wife was unable to properly conduct crossexamination of the husband in the face of the barrage of unwarranted interventions; we are less confident, but nonetheless persuaded, that the wife was precluded from properly giving her evidence under crossexamination by virtue of them also. There is a real danger that the trial was therefore unfair, and hence miscarried.” The orders of Willis J were set aside and the matter remitted for hearing before a different judge.
Property – summary dismissal refused – security for costs refused due to applicant’s parlous circumstances In Gregg & Gregg and Ors [2019] FamCA 927 (5 December 2019) Tree J heard an interim application brought by the husband and eight other respondents (being the husband’s family members and a corporate trustee of a family trust) for the wife’s application for property settlement to be summarily dismissed and for a security for costs order. The wife brought an application for property settlement asserting that she and the husband had an equitable interest in a crop farming business conducted by the husband’s business. In a complex fact scenario, she asserted that in addition to properties owned by the husband, other properties owned by the husband’s parents
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and other members of the family were held on trust for the members of the family involved in the farming business. The husband and wife met in 1997 when the husband was 19 years of age and the wife 16. The husband had already started working in the farming business at age 17 and continued to do so. The parties married in 2000 and separated on 4 September 2017. The parties had six children, three of whom at the time of the hearing lived with the husband and had no relationship with the wife. The wife’s evidence was that the farming business provided accommodation, electricity, telephone and petrol for the working family members, with no salary for the first two years of employment and then a very low wage, such that the family members qualified for Centrelink benefits. The wife further claimed that properties were purchased in names of family members after they had been working in the business for two years, without the registered proprietor making any financial contribution to the acquisition of the property and that the proprietor didn’t necessarily live in the property. The husband and wife lived in “Q Street” for most of the relationship, which was registered in the name of one of the husband’s brothers (who did not live in the property). The husband and the respondents sought the summary dismissal of the wife’s application under r10.12 Family Law Rules 2004 (Cth).
Reviewing the authorities, Tree J said (from [37]):
Court will ordinarily allow that party to reframe its pleadings.”
“In Pelerman v Pelerman (2000) FamCA 881 at [46], the Full Court said in relation to the test for summary dismissal as follows:
(Citations omitted)
‘The gravamen of the appeal is that the trial judge erred in the exercise of the discretionary power to summarily dismiss the application. It is well established that the following principles apply as were recently reviewed and stated in Bigg v Suzi:
“The starting point must be that, insofar as the application for summary dismissal is brought pursuant to the Family Law Rules 2004 (Cth) (“the Rules”), the language of the applicable rule will determine the relevant test. Under Rule 10.12, the test is that there is “no reasonable likelihood of success.” (I leave to one side whether there is any residual inherent jurisdiction to dismiss, notwithstanding there being a rule).
(a) The power for summary dismissal is a discretionary one. (b) Relief “is rarely and sparingly provided”. (c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”. (d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”. (e) “If there is a serious legal question to be determined, it should ordinarily be determined at a trial.” (f) “If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a
After reviewing the authorities, Tree J said (at [41]):
(…) [43] I have formed the view that, although the other articulations help to provide sounding boards as to whether the test under Rule 10.12 has been met, ultimately the standard that must be demonstrated is that there is ‘no reasonable likelihood of success.’ That is the test which I will apply here.” Tree J dismissed the applications for summary dismissal saying (at [54]): “The question then is whether I am presently persuaded that there is no reasonable likelihood of success on the part of the wife, including in relation to any cause of action presently not articulated by her in proper form (for example, equitable compensation). Upon balance, I am not so satisfied,
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at least at this point in time, particularly given the infancy of the proceedings, the lack of clarity as to whether Mr B and Ms C concede that the husband has any equitable interest in the farm properties in his sole or joint name, and the wife’s late made concession that she would not eschew equitable relief other than a remedial constructive trust. It therefore follows that both applications for summary dismissal fail.” Turning to the application for security for costs, wherein a total of $240 000 was sought by the husband and the respondents, Tree J said (from [56]): “During the course of the oral submissions, I raised with all counsel whether or not s 117 of the Family Law Act 1975 (Cth) (“the Act”) governed costs in these proceedings, insofar as they involve the parties to the wife’s equitable claim. Ultimately, helpful written submissions were provided by the wife and the respondents other than the husband, which conceded that s117 of the Act did govern the application, albeit they correctly identified that there is a lack of uniformity among the authorities as to the exact reason why that is so. … [C]ounsel for the respondents other than the husband, noted the lack of cohesion in the jurisprudence relating to this issue, and suggested that ‘this application provides the Court with the opportunity to provide clarity and a principled approach to the operation of s117 of the Act where third parties are joined to litigation between parties to
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a marriage. … I am disinclined to seize the alleged opportunity, which more properly seems to raise an issue requiring the attention of the Full Court, rather than yet another single judge sitting in the General Division adding potentially even further discordant reasoning to the present jurisprudential melee. (…) [59] In Luadaka & Luadaka (1998) FamCA 1520 (“Luadaka”) at [62] the Full Court (Ellis, Finn and O’Ryan JJ) said: ‘The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s117(2A), matters which may be relevant include the following…’
or not trivial, vexatious or a sham.” (4) Whether an order for costs would be “oppressive or stifle the litigation” (5) Whether or not the litigation may involve a matter of public importance. (6) Whether or not there has been delay in bringing the application, causing prejudice to the respondent to the application (7) The amount of costs likely to be incurred (8) Any difficulties likely enforcing an order for costs. (…) Reviewing the wife’s financial circumstances, Tree J said (from [69]):
[60] Their Honours then set out a number of matters, which were later helpfully summarised by Mullane J in Richards, Duff, Patient & DoCS [2002] FamCA 223 … at [19] as follows:
“… I observe as follows:
(1) The means of the respondent to the application to satisfy an order for costs if he or she is unsuccessful
3. It is too early to make any definitive assessment of the wife’s overall prospects of success, but I have already identified that her claim for a remedial constructive trust faces many obstacles, although they are not necessarily insurmountable, and any claim by her for lesser equitable relief faces less difficulties;
(2) The prospects of the respondent to the application succeeding in the proceedings (3) Whether the claim in the proceedings of the respondent to the application “is made bona fide, whether is genuine
2. The wife will not be able to satisfy an order for costs if she does not significantly succeed in the principal litigation;
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4. There is no suggestion that the wife, in asserting her claim, is not acting bone fide; 5. It is conceded that, if an order for security for costs were made, it would stifle the litigation; 6. The litigation does not involve any question of public importance; 7. There has been no delay in the bringing of the applications for security; 8. The amount of costs claimed are significant, in the total sum of $240 000. There is no reason to doubt that estimate is accurate, and indeed, perhaps conservative; and 9. The only difficulty in enforcing any order for costs that might ultimately be made against the wife, is that there are at present virtually no assets, and very little income, against which any order might be enforced. [70] (…) I should make it plain that, if it later transpires that the wife’s prospects of success in relation to any equitable claim can be definitively assessed as weak, then different considerations, or at least the weight given to them, might apply. The applications for security for cost were dismissed.
CHILDREN – contravention – several contraventions proven – costs order against applicant who had been at least substantially unsuccessful – contravention application petty and unwarranted In Adam & Tan [2019] FamCA 964 (13 December 2019), Carew J heard a contravention application by a father against a mother alleging a number of contraventions of final consent parenting orders made on 20 March 2019. The mother and the 11-year-old child lived overseas. The father (who lived in Australia) and the child communicated via an App each Sunday. The father alleged that the mother contravened the final orders by failing to facilitate the required telephone contact with the father without reasonable excuse and failing to provide the father 60 days’ notice of the child’s proposed international travel from Country B (where the child lived) to Country D for a weekend. The mother provided email notification two hours prior to the departure, despite obtaining a visa for the travel two weeks earlier. The court found that the mother contravened the order in relation to the 60 days’ notice of international travel without a reasonable excuse and that on a number of occasions, the mother contravened the orders by not ensuring the child was available for telephone contact as required on several Sunday evenings. Despite finding a number of contraventions occurred without reasonable excuse, the court did not accede to the father’s request
for a costs order against the mother, a fine, or variations of the existing orders. Carew J said (at [40]): “I have found that the mother contravened paragraph 34(b) of the primary order without reasonable excuse by failing to provide the required notice prior to travel. However, I do not intend to impose any sanction … The application by the father was, in my view, petty and unwarranted. [41] I have found that the mother contravened paragraph 25 of the primary order without reasonable excuse on 2 June 2019 by failing to ensure the child was made available for the father’s communication. However, I do not intend to impose any sanction. The mother was told by the child that the father had not called her (although she was mistaken) and, upon becoming aware of the father’s difficulties with contacting the child, the mother has taken steps since 16 June 2019 to remedy the situation. The child now calls the father on Sundays … In my view this application was also petty and unwarranted. (…) [43] The father has been substantially unsuccessful. While two counts of contravention have been found in his favour I have not imposed any sanction or made any order. (…) [44] The father also opposed the mother giving her evidence by
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electronic means, which required a separate hearing and the father’s objection was dismissed. (…) [47] I consider that an order for costs against the father is warranted in the circumstances of this case. … [T]he father has been at least substantially and arguably wholly unsuccessful in that not only were most of the alleged contraventions dismissed, the two that were established did not attract any sanction against the mother nor variation to the March 2019 order. I have found the father’s conduct in relation to the proceedings to have been petty and unwarranted. The court ordered the father pay $2750 towards the mother’s costs.
PROPERTY – expert evidence – interim issue – Family Law Rule 15.49 appointing another expert – disagreement with the expert evidence insufficient to support appointment of another expert In Salmon & Salmon and Ors (No. 2) [2019] FamCA 910, Carew J heard an interim application by a husband under r15.49 Family Law Rules 2004 for the appointment of another expert in circumstances where a single expert had already been appointed and had undertaken a valuation of the subject property. The proceedings were between the wife’s estate (the wife had died during the proceedings), the husband and a number of entities in which the parties and the husband’s family have interests is.
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A single expert (“Mr F”) was appointed earlier in the proceedings to value the parties’ interests in a number of entities and trusts including a selfmanaged superannuation fund. At the time of the interim hearing Mr F had prepared three reports, the most recent of which was dated 18 July 2019. The husband had engaged another expert, “Mr W” who had prepared a report dated 22 August 2019. The husband sought to tender the report prepared by Mr W on the basis that there existed in the report a substantial body of opinion contrary to the opinion given by the single expert witness, that the contrary opinion is necessary for determining several issues relevant to the matter and that there was another special reason for adducing evidence from another expert witness under r15.49(2)(c). Questions had not been provided to the single expert in accordance with r 15.65 and there had been no joint conference with the single expert pursuant to r15.64B. Carew J said (at [18]): “While the rules place restrictions on the use of another expert’s report in proceedings, a party is not precluded from obtaining a report from another expert per se and in order to better inform themselves in the conduct of their litigation. As Murphy J in Simonsen & Simonsen [2009] FamCA 698 observed: ‘12. The general thrust of the Rules has been referred to by the Full Court in Bass & Bass [2008] FamCAFC 67; … As the court in
that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word “special” as used in rule 15.49 has real meaning. 13. It is important to understand that Part 15.5 of the Rules does not preclude a party from obtaining on their own behalf expert evidence, nor does it preclude a party from obtaining such expert evidence, (including from more than one expert, should they so choose), in respect of all matters relevant to the proceedings before a court, and all matters relevant to a report and/or evidence produced by a single expert. 14. Thus, expert evidence obtained by a party on their own account can be used, for example, to significantly inform the crossexamination of a single expert witness at a trial. The restriction inherent in the rules is a restriction related to the adducing of evidence from the expert or experts retained by a party.’ [19] The appointment of a single expert places restrictions on all parties in the manner in which they can communicate and inform the single expert. While the interests of justice must ultimately be the overarching consideration, if one party is permitted to reply upon another expert it necessarily leaves open the very real prospect of yet a third expert being involved; all of which defeats the purpose of the single expert rules. As Kent J
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in Royce & Donovan [2012] FamCA 168 observed: 82. In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, whilst the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the Rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance.’ After reviewing the husband’s complaints in relation to Mr F’s report, and noting that the husband had not exercised the options provided under the Family Law Rules 2004 to ask questions of or have a conference with the single expert, the Court said (at [27]): “Whilst it is certainly apparent that Mr W disagrees with Mr F on a number of issues, that is not a sufficient basis to support the appointment of another expert.” The husband’s application was dismissed and the court extended the time limits contained in r15.65 to enable the parties to attend a conference with Mr F or enable the husband to submit a list of questions to Mr F.
PROPERTY – application to set aside consent orders – fraud perpetrated by the parties – referral to the DPP (Cth)
In [2019] FamCA 942 Gill J heard an application by a husband to set aside consent orders entered into between he and the wife. The parties married in 1986 and separated under the one roof in June 2014. There were three children of the relationship aged 22, 20 and 14 at the time of final hearing. The consent orders provided for an equal division of the property pool and that each party retained their own superannuation. The wife was to retain the family home subject to the mortgage plus interests in companies. The husband was to be liable for a debt to U Bank in his name. The husband was to pay the wife $5000 per month spousal maintenance, which was purportedly also in lieu of child support. The husband proposed two alternatives for dealing with his application: (1) a review of the consent orders under r18.08 of the Family Law Rules 2004 (Cth); or (2) that the orders be set aside under s79A(1)(a) of the Family Law Act 1975 (Cth). The husband’s application centred around an alleged “fraud” committed by he and the wife when entering into the orders, ostensibly to minimise their exposure to the debt in the husband’s name to U Bank of $503 000. The husband asserted that their intention was to revisit the arrangement set out in the orders following the debt being compromised (“the collateral agreement”). The husband also alleged that the parties misrepresented their assets and
liabilities in the application for consent orders. The wife denied the alleged collateral agreement. The husband sought the net proceeds of sale of the family home be applied to the U Bank debt, plus other payments amounting to $170 000, with the balance of the proceeds of sale going to the wife. The wife sought that the husband’s application be dismissed, but that if it was successful, she receive the net proceeds from the sale of the family home, along with spousal maintenance of $500 per week, adult child maintenance of $400 per adult child per week and a child support departure order of $415 per week. As to the husband’s application to seek relief from the court where he was one of the perpetrators of the fraud, Gill J said (from [147]): “The Wife therefore points to these circumstances having come about by virtue of the Husband’s admitted fraud upon the court process. She asserts that this is a reason to refuse relief to the Husband, on the basis that he does not come with clean hands in seeking relief. [148] The Husband is seeking relief where he has perpetrated the fraud that he complains of. He falls within the description given in Meyers v Casey [1913] HCA 50 in which Isaacs J said: ‘It is altogether different from the cases where the right relied on, and which the Court of equity is asked to protect or assist, is itself to some extent brought
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into existence or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection for his own wrong. No Court of equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim.’ [149] Here, the husband is reliant on his deception of the Court to found the relief that he seeks. In that respect it is an unattractive claim for relief. [150] However, the circumstances here are somewhat different to those in Meyers, particularly given the role of the wife in the procuring of the orders. [151] It was wrong of the parties to represent to the Court that the orders they sought were intended by them to finalise their financial matters, when they did not so intend. It was wrong of the parties to provide false information to the Registrar in support of those orders. It is a further wrong of the wife to permanently retain the benefits of the orders where, central to the entry into those orders was the representation and intention that they would be no more that temporary. [152] The circumstances are then that neither party comes with clean hands to the court, and yet the wife seeks to retain benefits that were never intended to remain solely hers. Those benefits were only procured on the basis that they would be temporary, yet she seeks to hold them permanently. Denying the husband
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relief under those circumstances adds a further wrong. [153] Despite not coming with clean hands, the husband should not be refused relief on that basis. [154] To deny the husband relief on the basis that it is his wrongdoing is to protect for the wife the fruit of her wrongdoing.” The husband’s application for a review and an extension of time was successful. The court said in relation to the husband’s alternate ground (from [164]): “The Husband stated that should his application for review of the Registrar’s decision be unsuccessful, the consent terms should be set aside pursuant to s79A(1)(a). It should be immediately observed that s79A is directed to orders made under s79, not spousal maintenance orders made under s74 of the Act. (…) [167] Badawi & Badawi (2017) FamCAFC 129 emphasised that s79A(1) ‘is particularly directed to the integrity of the judicial process.’ [168] Section 79A is designed to overcome miscarriages of justice. It is to be construed liberally to give effect to its intended purpose (see In the Marriage of Gilbert v Estate of Gilbert (decd) (1989) FamCA 95). [169] While dealing particularly with fresh evidence, the more
general significance of fraud upon the judicial process was dealt with by Barwick CJ J in McDonald v McDonald [1965] HCA 45. ‘The Court’s conclusion upon the fresh evidence before it that the verdict was obtained by fraud, by surprise, or that witnesses were suborned, is sufficient to justify setting aside the verdict and ordering a new trial. Whether or not the Court does so must finally depend on the Court’s view as to whether or not the interests of justice, either particularly in relation to the parties or generally in relation to the administration of justice, require such a course.’ (…) [171] McDonald emphasises the strong effects of a fraud that goes to the root of a trial which in turn indicates the significance of such a fraud in determining the exercise of the discretion under s79A. Such a fraud itself, even without demonstration that it affected the outcome of the trial, because of its impact on the integrity of the trial, is indicative of a miscarriage of justice. [172] While there is reason to think that the focus in Gallo v Dawson is on the justice as it stands between the parties, miscarriage of justice, as referred to in s79A and McDonald incorporates considerations that relate to the administration of justice more generally. [173] In this case the fraud went to the heart of the orders being made. Even if it did not result in property orders that were
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manifestly unjust, the fraud upon the court processes is indicative of a miscarriage of justice. [174] Again the issue arises of the Husband seeking relief where he has perpetrated the fraud that he complains of. I adopt what I said in relation to this aspect in respect of the application for an extension of time for review of the Registrar’s decision. [175] If it were necessary to resort to s79A, then I would have granted relied under that provision. The Court ordered that the judgement, consent order material and the trial material be forwarded to the Director of Public Prosecutions (Cth) for consideration.
CHILDREN – interim unilateral relocation of infant reversed – unacceptable risk not established – courts power to make coercive orders In Tandy & Eastman [2020] FCCA 541 (19 February 2020) Young J heard an application by a father for the return of a 20 month old (“X”) who was removed from Darwin to City B by the mother. In the event the mother and the child returned to Darwin, the father sought live with orders on a 2 or 3 day rotation. If the mother did not relocate, the father sought orders for the child to live with him. The mother sought to remain in City B with the child and the child spend time with the father over four nights every two months in blocks of two nights each, separated by one night, plus time if the father travelled to City B.
The father was 38 years old and the mother 33. The parties commenced a long distance relationship in May 2014 and the mother relocated to Darwin to live with the father in 2015. The parties married in 2017 and X was born in 2018. The parties separated in August or September 2019. The father was in business with another health care worker. Save for a period of not working when the child was born the mother was employed in an executive role. The mother was working 4 days per week. The mother was the primary caregiver of the child post separation, however the child spent substantial time in the father’s care. The mother claimed there was family violence both during the relationship and post separation. As to the mother’s allegations, Young J said (from [23]): “…[T]he mother has also annexed parts of SMS conversations between her and the father and in those SMS conversations some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown. However, the language was not threatening. [24] … I consider that the mother’s family violence claims are not particularly forceful or compelling. Most of her evidence rests on interpretations of events and attaching meanings to events which might be seen as ambiguous or statements which might appear to be ambiguous. It may be that she has interpreted what has
happened in that way. It may be her interpretation is wrong. I do not know. I do not propose to make any findings about that. As I say, many of her claims relate to the father’s language, which I have made some remarks about. [25] I am not suggesting that language cannot be coercive or controlling and cannot constitute family violence but every case involving words and conversations involves some assessment or some interpretation. While I accept that there have been unpleasant and distressing exchanges and verbal exchanges between the parties I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.” As to the court’s power to make coercive orders for a parent to move their residence, Young J said (from [30]): “I was referred to Adamson & Adamson (2014) FamCAFC 232 where this question was discussed by the Full Court. At paragraph [35] the Court indicated that there was a power to make such a coercive order requiring a parent to move. That case did not concern interim orders, as is the case here. It was said in another case I was referred to, Oswald & Karrington (2016) FamCAFC 152 … that such a coercive order is at the extreme of the Court’s discretionary power and is ‘rare’ and ‘extreme. I accept that is the case. [31] Oswald & Karrington made it clear that there must be a consideration of alternatives before making a coercive order of
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the kind sought here. In my view, the only alternative offered is the one I have described, that is, that the mother and child travel to Darwin every two months and the child would spend four days with the father over a period of five days in blocks of two nights. I do not consider that that alternative is likely to be one in the best interests of this very young child at a sensitive developmental stage, as I have already mentioned.” The court ordered the return of the mother and child to Darwin and otherwise did not make orders for time, concluding that the parties should discuss the time arrangements themselves. …
DE FACTO RELATIONSHIP – section 4AA(2) of the Family Law Act 1975 – mutual commitment to a shared life – duration of relationship In Meyvans & Kempton [2019] FCCA 1845 (9 July 2019), Judge Howard considered competing applications for declarations as to the duration of a de facto relationship. The applicant sought a declaration the parties had been in a de facto relationship for three years and one month. The respondent argued that the parties had been in a de facto relationship for approximately nine months. The parties met via an online dating forum in 2014. They met in person in 2014 and commenced a sexual relationship that evening, with the applicant being
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introduced to the respondent’s friend and her husband the next evening. The applicant asserted that after the first meeting of the parties, he spent approximately six nights per week living at her property and that a de facto relationship commenced at that point. The respondent’s evidence was that the parties were spending three to four nights per fortnight together from when they met and asserted that a de facto relationship existed for the period the parties were living together in a property at A Street from November 2016 until 10 August 2017. The court reviewed the evidence, including that from the 2014 date, the respondent gave the applicant his own set of keys for her property, that the applicant commenced transporting the respondent’s children to and from school and kindergarten, the parties started holidaying together (both with and without the respondent’s children), the inclusion of the respondent and her children on the applicant’s health insurance from 31 October 2014, the respondent changing her postal address to the same P.O. Box as the applicant from October 2014. The applicant also stopped leasing an apartment and commenced leasing a threebedroom townhouse (“the C Street property”) in anticipation of the respondent and her two sons moving in with him, which they did in November 2014.
The respondent asserted that cohabiting with the applicant in 2014 was because of her straitened financial circumstances. This evidence was not accepted by the court. The court said (from [26]): “At no point in time during the course of the proceedings did the respondent concede that she was in a de facto relationship with the applicant during the period of time that she and her two sons lived with the applicant at the C Street property. The respondent’s position in this regard was approaching the absurd. The overwhelming weight of the evidence and the consideration of the circumstances listed in s4AA(2) of the Act leave the Court in no doubt that the parties were indeed living in a de facto relationship from the time that the respondent and her two children moved into the C Street property at the beginning of November 2014. The applicant has argued that the de facto relationship in fact began in July 2014. In examining the evidence and weighing the various considerations in s4AA(2) I have come to the conclusion that the step taken by the respondent in moving herself and her two young children into the C Street property at the beginning of November 2014 amounted to unequivocal evidence of a mutual commitment (between the parties) to a shared life. It is at that point in time, I find, that the de facto relationship between the parties commenced (i.e. the beginning of November 2014).
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[27] There is no doubt that the parties had a volatile relationship. At times their relationship was tense, strained, and uneasy. There were instances of family violence. On more than one occasion, the respondent bit the applicant.
another property (“the Suburb B property”). From November 2016 until August 2017, the parties lived in the Suburb B property together with the respondent’s children.
(…)
“In Dahl & Hamblin [2011] FamCAFC 202 the Full Court of the Family Court of Australia confirmed that Part VIII AB of the Act (“Financial Matters Relating To De Facto Relationships”) “certainly envisages that two or more periods can be aggregated for the purpose of determining the required two year period of a de facto relationship.” …
[28] Notwithstanding their arguments and disagreements — the parties maintained a de facto relationship from the beginning of November 2014.” The respondent and her children moved from the C Street property to another property (“Suburb E property”) in August 2015. The respondent conceded that during this time, the applicant was sleeping at the Suburb E property three or more nights per week. The court heard evidence from the parties’ counsellor (“Ms Q”) that the parties advised her they were temporary separated from 22 September 2015. The court inferred from the evidence that the temporary separation lasted one week. Despite the applicant continuing to lease the C Street property, working from those premises and sleeping there sometimes, the court said [at 42] that it was possible to maintain two residences and for parties to still be in a de facto relationship. The parties became engaged in April 2016 whilst the Respondent was living in the Suburb E property.
The court continued (from [58]):
[59] Even though I have come to the conclusion that there was a temporary separation between these parties in September 2015 it will be apparent from these reasons for judgment that an aggregation of the periods of the de facto relationship in this case well and truly exceeds the required two years (s90SB (a) of the Act).” The court declared that a de facto relationship existed between the parties from 1 November 2016 until 22 September 2015 and then from 29 September 2015 until 10 August 2017.
DE FACTO RELATIONSHIP – s4AA(2) of the Family Law Act 1975 – mutual commitment to a shared life – duration of relationship In Meyvans & Kempton [2019] FCCA 1845 (9 July 2019), Judge Howard considered competing applications for declarations as to the duration of a de facto relationship. The applicant sought a declaration the parties had been in a de facto relationship for three years and one month. The respondent argued that the parties had been in a de facto relationship for approximately nine months. The parties met via an online dating forum in 2014. They met in person in 2014 and commenced a sexual relationship that evening, with the applicant being introduced to the respondent’s friend and her husband the next evening. The applicant asserted that after the first meeting of the parties, he spent approximately six nights per week living at her property and that a de facto relationship commenced at that point. The respondent’s evidence was that the parties were spending three to four nights per fortnight together from when they met and asserted that a de facto relationship existed for the period the parties were living together in a property at A Street from November 2016 until 10 August 2017.
In June 2016 the respondent and her children moved into
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The court reviewed the evidence, including that from the 2014 date, the respondent gave the applicant his own set of keys for her property, that the applicant commenced transporting the respondent’s children to and from school and kindergarten, the parties started holidaying together (both with and without the respondent’s children), the inclusion of the respondent and her children on the applicant’s health insurance from 31 October 2014, the respondent changing her postal address to the same P.O. Box as the applicant from October 2014. The applicant also stopped leasing an apartment and commenced leasing a threebedroom townhouse (“the C Street property”) in anticipation of the respondent and her two sons moving in with him, which they did in November 2014.
Court in no doubt that the parties were indeed living in a de facto relationship from the time that the respondent and her two children moved into the C Street property at the beginning of November 2014. The applicant has argued that the de facto relationship in fact began in July 2014. In examining the evidence and weighing the various considerations in s4AA(2) I have come to the conclusion that the step taken by the respondent in moving herself and her two young children into the C Street property at the beginning of November 2014 amounted to unequivocal evidence of a mutual commitment (between the parties) to a shared life. It is at that point in time, I find, that the de facto relationship between the parties commenced (i.e. the beginning of November 2014).
The respondent and her children moved from the C Street property to another property (“Suburb E property”) in August 2015. The respondent conceded that during this time, the applicant was sleeping at the Suburb E property three or more nights per week. The court heard evidence from the parties’ counsellor (“Ms Q”) that the parties advised her they were temporary separated from 22 September 2015. The court inferred from the evidence that the temporary separation lasted one week.
The respondent asserted that cohabiting with the applicant in 2014 was because of her straitened financial circumstances. This evidence was not accepted by the court.
[27] There is no doubt that the parties had a volatile relationship. At times their relationship was tense, strained, and uneasy. There were instances of family violence. On more than one occasion, the respondent bit the applicant.
The parties became engaged in April 2016 whilst the Respondent was living in the Suburb E property.
The court said (from [26]): (…) “At no point in time during the course of the proceedings did the respondent concede that she was in a de facto relationship with the applicant during the period of time that she and her two sons lived with the applicant at the C Street property. The respondent’s position in this regard was approaching the absurd. The overwhelming weight of the evidence and the consideration of the circumstances listed in s4AA(2) of the Act leave the
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[28] Notwithstanding their arguments and disagreements — the parties maintained a de facto relationship from the beginning of November 2014.”
Despite the applicant continuing to lease the C Street property, working from those premises and sleeping there sometimes, the court said [at 42] that it was possible to maintain two residences and for parties to still be in a de facto relationship.
In June 2016 the respondent and her children moved into another property (“the Suburb B property”). From November 2016 until August 2017, the parties lived in the Suburb B property together with the respondent’s children.
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The court continued (from [58]): “In Dahl & Hamblin [2011] FamCAFC 202 the Full Court of the Family Court of Australia confirmed that Part VIII AB of the Act (“Financial Matters Relating To De Facto Relationships”) “certainly envisages that two or more periods can be aggregated for the purpose of determining the required two year period of a de facto relationship.” …
reasons for judgment that an aggregation of the periods of the de facto relationship in this case well and truly exceeds the required two years (s90SB (a) of the Act).” The court declared that a de facto relationship existed between the parties from 1 November 2016 until 22 September 2015 and then from 29 September 2015 until 10 August 2017.
[59] Even though I have come to the conclusion that there was a temporary separation between these parties in September 2015 it will be apparent from these
COMMEMORATING THE 50 TH ANNIVERSARY OF THE L AW SOCIET Y NORTHERN TERRITORY
Mandatory Reading Lawyers and Life in the Northern Territory $66 incl GST + postage & handling Order forms are available from the Society’s website: www.lawsocietynt.asn.au
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DAVID KELSEY-SUGG BARRISTER VICTORIAN BAR
(02) 9225 6286 dkelseysugg@vicbar.com.au The full version of these judgments can be found at www.austlii.edu.au
High Court judgments This edition of Balance includes David Kelsey‑Sugg’s last High Court judgments column. We thank him for his valuable contributions.
EVIDENCE – criminal trial – mixed statements The question for consideration by the High Court in Nguyen v The Queen [2020] HCA 23 (30 June 2020) was: what are the legal consequences, for a trial governed by the Evidence (National Uniform Legislation) Act 2011 (NT), of the refusal of a prosecutor to tender into evidence a “mixed” video record of interview between the police and an accused person — that is, a record containing both inculpatory and exculpatory statements. The appellant, Nguyen, was charged on indictment with offences against the Criminal Code (NT) and stood trial before a jury in the Supreme Court of the Northern Territory. He had been interviewed by the police about the offences in question prior to being charged. The interview was recorded electronically. The recorded interview contained statements by the appellant in the nature of admissions together with exculpatory statements.
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The recorded interview was relevant and admissible, but the prosecution did not tender it as part of the Crown case, although it was not suggested that the statements made by the appellant in the recorded interview were demonstrably untrue or unreliable. The essential reason for the refusal to tender the statements into evidence was that they would not assist the Crown case. In the High Court, the appellant contended that the prosecution’s obligation of fairness in the conduct of a trial would require the recorded interview containing the mixed statements to be tendered unless there were good reasons not to do so. The High Court accepted this, and said that the decision not to adduce it did not accord with the prosecutorial obligation respecting the presentation of the Crown case and had disadvantaged the appellant. Kiefel CJ, Bell, Gageler, Keane and Gordon JJ jointly. Nettle J and Edelman J each separately concurring. Appeal from the Full Court of the Supreme Court of the Northern Territory allowed.
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IMMIGRATION – refugees – application for protection visa – immigration assessment authority In Minister for Immigration and Border Protection v CED16 [2020] HCA 24 (30 June 2020) the question for consideration by the High Court concerned the meaning of the words, “new information” in Pt 7AA of the Migration Act 1958 (Cth). In the Federal Court of Australia, the primary judge had concluded that the Immigration Assessment Authority made a jurisdictional error. This conclusion was dependent on his Honour having found that a “certificate” was new information within the meaning given by s473DC(1). The Minister appealed, arguing that it was wrong to characterise the certificate as “new information”. The High Court agreed and allowed the appeal by application of principles established in prior decisions of the High Court. Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring. Appeal from the Federal Court of Australia allowed.
FINDING IT HARD TO KEEP IT TOGETHER? LawCare: Caring for the legal profession in the Northern Territory The Law Society NT funds a professional, confidential and free counselling service for our members and their immediate family, provided through Employee Assistance Service Australia (EASA). If you are experiencing workplace, personal or emotional issues which are affecting your work or personal life, please call LawCare via the EASA Program 24-hour support line on 1800 193 123 or visit their website at www.easa.org.au.
NT toll free: 1800 193 123 Darwin: (08) 8941 1752 Katherine: (08) 8941 1752 Alice Springs: (08) 8953 4225 When booking an appointment, please inform the operator that you are a Law Society NT member. This service is completely confidential. The Society will only receive statistical information on the numbers accessing the service.
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DR MICHELLE SHARPE BARRISTER – GENERAL COMMERCIAL, DISCIPLINARY AND REGULATORY LAW VICTORIAN BAR
(02) 9225 8722 msharpe@vicbar.com.au The full version of these judgments can be found at www.austlii.edu.au
High Court judgments TRADE PRACTICES – assessing damages for misleading and deceptive conduct In Berry v CCL Secure Pty Ltd [2020] HCA 27 (5 August 2020) the High Court considered how or when the evidentiary burden of proving loss or damage, under s82 of the Trade Practices Act 1974 (TPA), now s236 of the Australian Consumer Law (ACL), shifts from the claimant to the defendant. The facts in Benvoy centre on an agency agreement between the parties. The respondent, formerly known as Securency Pty Ltd (Securency), carried on a business printing polymer bank notes. Relevantly, the Securency’s production of polymer bank notes involved a number of processes. One of those processes, known as “opacification”, involved the conversion of polymer film sheets into opacified polymer. Securency marketed its polymer bank notes to a number of countries, including the Federal Republic of Nigeria. Securency’s marketing efforts were initially unsuccessful in Nigeria until the first appellant, Dr Berry, offered his assistance. Dr Berry was an entrepreneur who held some influence with senior officials within the Nigerian government. Dr Berry promoted Securency’s polymer bank notes because he wanted to be commercially involved in the construction and operation of an opacification plant in Nigeria. Between 2004 and 2006 Dr Berry persuaded Nigerian government officials to adopt polymer notes on the condition that an opacification plant be built in Nigeria in which Dr Berry, among
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others, would have an interest. In early June 2006 Nigeria placed an order for opacified polymer for the Nigerian Mint. At about this time Securency, Dr Berry and the second appellant, GSC (a company controlled by Dr Berry), executed a written agency agreement, backdated to February 2006. Under the agency agreement Dr Berry and GSC would act as the sole agent of Securency in Nigeria and would be paid a commission of 15% on the net invoiced sale value of opacified polymer sold to the Nigeria. The agency agreement further provided that its two‑year term would be automatically renewed unless terminated. Under the agency agreement Securency could terminate the agreement in one of two ways: by giving Dr Berry and GSC 30 days written notice (30 days before or after the expiry date of the agency agreement) or by 60 days written notice (at any time). In January 2008 Nigeria placed further orders with Securency for opacified polymer. Securency did not inform Dr Berry about these orders. Instead, Securency devised a covert plan to deprive Dr Berry and GSC of the large commissions to which they would have been entitled under the agency agreement. In a meeting in February 2008, Securency’s director, Mr Chapman, falsely told Dr Berry that the agency agreement had to be terminated before a partnership agreement, for the development of an opacification plant, could be put into place. Mr Chapman also falsely told Dr Berry that, until the partnership agreement was executed, the parties would adhere
CA SE NOTES - HIGH COURT
to the financial terms of the agency agreement. Dr Berry was presented with, and signed, a letter terminating the agency agreement as of 31 December 2017. No partnership agreement was ever produced and Dr Berry discovered Securency’s duplicity months later. Dr Berry and GSC brought a claim seeking compensation for Securency’s misleading and deceptive conduct in breach of the then s52 of the TPA (now s18 of the ACL). Uncontroversially, Dr Berry argued that compensation should be calculated on the basis of the commissions that would have been payable by Securency under the agency agreement and the loss of opportunity to earn further commissions under the agreement. The agency agreement, Dr Berry contended, would have continued, pursuant to the automatic renewal provision, until at least June 2010 when Securency terminated all of its agency agreements. But Securency countered that it could have terminated the agency agreement, pursuant to the termination clause, by, at the latest, 30 June 2008. Before the High Court, Dr Berry and GSC submitted that the correct approach to determining damages, where the wrongdoer alleges that it could have lawfully achieved the same end, is governed by the following principles: ●● damages are assessed in a “robust manner” by resolving “doubtful questions” against the wrongdoer who has made
an accurate assessment so difficult (this principle was said to have been recognised in Pitcher Partners Consulting Pty Ltd v Neville’s Bus Service Pty Ltd (2019) 271 FCR 392 at [109]) ●● the wrongdoer is not permitted to argue a lawful alternative as a means to escape or reduce damages and, in so doing, retain the benefit of its wrong unless the alternative is wholly independent of its wrongdoing (this principle was said to be evident in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 114 among others) or, alternatively ●● a wrongdoer must at least prove, on the balance of probabilities, that there was a “substantial prospect” or “prospect of value” that it would have so acted (this principle is said to be supported by the decisions in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 and Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355). The High Court unanimously determined the appeal in favour of Dr Berry and GSC by applying the last of these three principles. The High Court held that the legal onus fell on the claimant to prove, on a balance of probabilities, that the wrongdoer’s breach of the TPA caused the claimant’s loss and the amount of that loss. Where the loss is a loss of opportunity, the value of the loss is to be determined on the likelihood of the opportunity to yield the gains claimed. The High Court held that because Securency had terminated the agency agreement by means of a calculated deceit,
the natural inference was that it would not have been prepared to terminate the agreement lawfully. The High Court had rejected the contention that it was not open to a wrongdoer to argue a lawful alternative as a means to escape damages. So, the evidentiary onus then shifted to Securency to prove that it would have been prepared to terminate the agreement lawfully in June 2018. Ultimately, the High Court was not persuaded by Securency that it would have lawfully terminated the agreement any time before it terminated all of its agency agreements in June 2010. Having reached this conclusion the High Court did not consider it necessary to determine whether the “robust manner”, enunciated in Pitcher Partners, was a principle that governed the calculation of damages.
TORT OF FALSE IMPRISONMENT – assessment of damages In Lewis v Australian Capital Territory [2020] HCA 26 (5 August 2020) the High Court considered whether the appellant (Lewis) was entitled to substantial, rather than merely nominal, damages to: ●● vindicate his rights irrespective of whether he had suffered any loss or ●● compensate him in circumstances where he would have been held in custody in any event.
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Lewis had been sentenced under the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) to 12 months’ imprisonment for recklessly or intentionally inflicting actual bodily harm on another by smashing a glass into a man’s face. The sentence was to be served by way of periodic detention on weekends. After Lewis failed to attend for periodic detention on four occasions, the Sentence Advisory Board (Board) notified Lewis of a Board inquiry into his non-attendance as required under the Sentencing Act. Lewis also failed to attend the Board inquiry and, in his absence, the Board cancelled Lewis’ periodic detention. Relevantly, the Sentencing Act required the Board to, as soon as practicable, cancel an offender’s periodic detention, and place the offender in full-time custody, if the Board found that the offender had failed to perform periodic detention on two or more occasions. Lewis went on to successfully challenge the cancellation on the basis that the Board had denied him procedural fairness. Lewis was granted bail pending the challenge and, ultimately, was not required to serve his initial sentence of periodic detention. Lewis subsequently sued the Australian Capital Territory for damages for false imprisonment for the 82 days he served in custody before being granted bail. At first instance Lewis was awarded only nominal damages. The trial judge considered that Lewis had not suffered any loss because, by virtue of the provisions of the Sentencing Act, his periodic detention would have been cancelled in any event. The trial judge also refused an award for “vindicatory damages” finding no entitlement to such a remedy. Lewis unsuccessfully appealed to the Court of Appeal. On appeal to the High Court, Lewis did not fare much better. The High Court unanimously dismissed Lewis’ appeal on both fronts. As Gordon J points out, Lewis, in his claim, had essentially conflated liability for the tort of false imprisonment with compensation. Gordon J notes that the tort is actionable per se. And a person who is falsely imprisoned is entitled to a declaration and nominal damages to mark an infraction of his or her legal right. But no substantial compensatory damages can be awarded where there is no actual loss to compensate. And the High Court unanimously found that substantial “vindicatory damages” was not supported by authority or principle.
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DAN STAR QC BARRISTER – SENIOR COUNSEL VICTORIAN BAR
(02) 9225 8757 danstar@vicbar.com.au The full version of these judgments can be found at www.austlii.edu.au
Federal Court judgments ADMINISTRATIVE LAW – Judicial review of decision granting exemption from prohibition of live animal export – procedural fairness – legal unreasonableness In Animals Australia Federation v Secretary, Department of Agriculture, Water and the Environment [2020] FCA 905 (26 June 2020) the Court determined an application for judicial review of the decision to grant an exemption under s12(1) of the Australian Meat and Live-Stock Industry (Prohibition of Export of Sheep by Sea to Middle East – Northern Summer) Order 2020 (Cth) (Northern Summer Order) to permit the export of sheep in the Northern Hemisphere summer. For animal welfare reasons, s8 of the Northern Summer Order prohibits the export of live sheep from Australia by a sea-going vessel to certain parts of the Middle East between 1 June and 14 September. Section 12 of the Northern Summer Order provides the Secretary with a discretion to grant an exemption from the prohibition. On or about 2 June 2020, a delegate of the Secretary decided not to grant the second respondent (the exporter) an exemption under s12(1) of the Northern Summer Order (the first decision). The Department of Agriculture, Water and the Environment (the Department) did not provide a copy of the exporter’s exemption application to Animals Australia or formally invite it to make submissions concerning the first decision. However, Animals Australia provided
submissions against the granting of the exemption. The reasons for the first decision acknowledged that the decision-maker considered submissions received from (inter alia) Animals Australia. The first decision was effectively reversed a little more than ten days later when another delegate of the Secretary decided to grant an exemption to the exporter (the second decision). Animals Australia was not aware of the Secretary’s consideration of a second application for exemption made by the exporter until after the second decision had been made. The reasons for the second decision noted that the decision-maker gave some weight to the submissions from Animals Australia in relation to the first decision. The applicant challenged the second decision in urgent circumstances on the grounds of a denial of procedural fairness and legal unreasonableness (at [40]). Animals Australia was not given an opportunity to provide information or submissions regarding the making of the second decision to the decision-maker. The critical question was whether the Secretary was required to afford it any such opportunity. No party challenged the standing of Animals Australia to challenge the second decision (at [41]). The Court considered the relationship between standing and
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the entitlement to procedural fairness (at [67]-[69]). The Court also considered how the concept of legitimate expectation does not engage the principles of procedural fairness (at [70]-[71]). Justice Kenny held that Animals Australia did not have a sufficient interest to be entitled to procedural fairness (at [73] and [76]). Further, the course of dealings between Animals Australia and the Department could not of itself give rise to an interest sufficient to attract an obligation to afford Animals Australia a right to be heard in connection with the making of the second decision (at [81]). Finally, the ground of legal unreasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 was not made out (at [87]-[93]).
ENVIRONMENTAL LAW – EPBC Act – forestry operations – whether exemption in s38 lost – if exemption lost, whether action is likely to have a significant impact on listed threatened species Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 (27 May 2020) is the Court’s final judgment in a proceeding brought by an environment group (the applicant) seeking relief against VicForests, a Victorian statutory agency responsible for the management and sale of timber resources in Victorian state forests. The proceeding concerned forestry operations in 66 native forest coupes in the Central Highlands region of Victoria
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and the effect of those forestry operations on two native fauna species, the Greater Glider and the Leadbeater’s Possum. Both are listed as threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Greater Glider is listed as “vulnerable” and the Leadbeater’s Possum is listed as “critically endangered”. Under s38 of the EPBC Act, forestry operations that are conducted “in accordance with” a Regional Forestry Agreement (RFA) are exempt from provisions in the EPBC Act that otherwise control actions that have, or are likely to have, a significant impact on matters of national environmental significance (including listed threatened species). One such provision is s18 of the EPBC Act, which provides that a person must not take an action that has, will have or is likely to have a significant impact on a listed threatened species. In summary, there were two key issues in the case. The first main issue was whether the exemption in s38(1) of the EPBC Act was lost for certain of VicForest’s forestry operation. The second key issue was, if the s38 exemption was lost, whether the forestry operations were an action that was likely to have had or is likely to have a significant impact on the Greater Glider or Leadbeater’s Possum (or both) under s18 of the EPBC Act. Following a contested trial, Mortimer J upheld the applicant’s key claims. On the first key issue, the Court held that VicForests lost the exemption in s38(1)
of the EPBC Act because its forestry operations were not or are not likely to be undertaken in compliance with the Central Highlands RFA. This issue was determined in relation to certain coupes that were scheduled to be logged (the Scheduled Coupes) and also other coupes that already had been logged (the Logged Coupes). As to how the exemption conferred by s38 of the EPBC Act is lost, Mortimer J expressly adopted and applied her reasoning from her earlier judgment determining a separate question in the proceeding (see (2018) 260 FCR 1). In relation to future forestry operations, the Court held that VicForests is not likely to comply with cl 2.2.2.2 of the Code of Practice for Timber Production 2014 (Vic) (the Code) in the Scheduled Coupes. Accordingly, for any forestry operations proposed to be undertaken by VicForests in the Scheduled Coupes, its conduct will not be covered by the s38(1) exemption (at [6(d)] and [1178]). In relation to past forestry operations, the Court held there were a range of miscellaneous breaches of the Code by VicForests in its forestry operations in the Logged Coupes. This included breaches of cl 2.2.2.2 and other clauses of the Code, sometimes in conjunction with parts of the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests. In relation to those forestry operations, VicForests’ conduct was not covered by the s38(1) exemption in the coupes in which the breaches occurred (at [6(b)-(c)] and [1287]‑[1290]).
Non-compliance with cl 2.2.2.2 of the Code was central to the Court’s findings. Clause 2.2.2.2 of the Code required VicForests, in planning and conducting its forestry operations, to apply the precautionary principle to the conservation of biodiversity values. Accordingly the Court’s judgment contains consideration of the precautionary principle (at [800]-[859]).
Endnotes Before the High Court Police doorknocking in comparitive and constitutional perspective: Roy v O’Neill (pages 20-25) 1. High Court of Australia, Case No D2/2020 (‘Roy’). 2. Aileen Roy, ‘Appellant’s Submissions’, Submission in Roy v O’Neill, Case No D2/2020, 8 May 2020, 5–16 [18]–[43] (‘Appellant’s Submissions’); Julie O’Neill, ‘Respondent’s Submissions’, Submission in Roy v O’Neill, Case No D2/2020, 5 June 2020, 5–17 [23]–[78] (‘Respondent’s Submissions’); Aileen Roy, ‘Appellant’s Reply’, Submission in Roy v O’Neill, Case No D2/2020, 29 June 2020, 2–5 [4]–[13]
Turning to the second key issue, the Court held that VicForests’ conduct of forestry operations is likely to have had, or is likely to have, a significant impact on the Greater Glider as a species and/ or the Leadbeater’s Possum as a species. Therefore, s18 of the EPBC Act was contravened and/or is engaged, depending on whether the action has been undertaken, or is proposed to be undertaken [at [6(h)] and [1455]). For the purposes of s18 of the EPBC Act, the Court held that each forestry operation in each of the 66 impugned coupes is an action; each series of forestry operations in each coupe group is an action; the forestry operations undertaken in the Logged Coupes are, collectively, an action; the forestry operations proposed to be undertaken in the Scheduled Coupes are, collectively, an action; and the forestry operations in all of the 66 coupes are, collectively, an action (at [6(g)] and [1339]).
(‘Appellant’s Reply’). 3. TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, 342 [32], 343 [37] (Spigelman CJ; Mason P and Grove J agreeing). 4. Unless otherwise indicated, this section draws upon O’Neill v Roy (2019) 345 FLR 8, 10–11 [2]–[7]. 5. Ibid 26 [44]. 6. O’Neill v Roy (2019) 345 FLR 29, 39 [38]. 7. Roy v O’Neill [2020] HCATrans 43, 2. 8. Appellant’s Submissions (n 2) 7 [25], 19 [49] n 115; Respondent’s Submissions (n 2) 17–19 [79]–[86]; Appellant’s Reply (n 2) 5 [14]. 9. The High Court has regularly referred to foreign authority in developing the law of trespass and implied licences. See, eg, Barker v The Queen (1983) 153 CLR 338, 343 (Mason J); Kuru v The Queen (2008) 236 CLR 1, 15 [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 10. Robson v Hallett [1967] 2 QB 939, 951 (Lord Parker CJ; Diplock LJ and Ashworth J agreeing) (‘Robson’). 11. Ibid 953 (Diplock LJ; Ashworth J agreeing). 12. Lambert v Roberts [1981] 2 All ER 15, 19 (Donaldson LJ; Kilner Brown J agreeing); Pamplin v Fraser [1981] RTR 494, 499–500 (Ackner LJ; McNeill J agreeing); Fullard v Woking Magistrates’ Court [2005] EWHC 2922 (Admin, QBD), [18]. The issue was given slightly more consideration in Wiltshire v Crown Prosecution Service [2014] EWHC 4659 (Admin), [7]–[16] (Simon J; Beatson LJ agreeing). 13. Snook v Mannion [1982] RTR 321, 325 (Ormrod LJ; Forbes J agreeing). 14. Indeed, a search of BAILII and AustLII reveals that Robson (n 10) has been cited much more often in Australia than it has in the UK: see British and Irish Legal Information Institute (‘BAILII’) <https://www.bailii.org/>; Australasian Legal Information Institute (‘AustLII’) <http://www.austlii. edu.au/>. 15. Howden v Ministry of Transport [1987] 2 NZLR 747 (Court of Appeal) (‘Howden’).
The Court gave the parties an opportunity to make submissions on declaratory and injunctive relief.
See also Transport Ministry v Payn [1977] 2 NZLR 50 (Court of Appeal). 16. Howden (n 15) 751 (Cooke P). 17. Ibid. 18. See TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 (High Court); R v Bradley (1997) 15 CRNZ 363 (Court of Appeal); R v Ratima (1999) 17 CRNZ 227 (Court of Appeal); Attorney-General v Hewitt [2000] 2 NZLR 110 (High Court); R v Pou [2002] 3 NZLR 637 (Court of Appeal); R v Soma (2004) 21 CRNZ 23 (Court of Appeal); R v Meyer and Woods [2010] NZAR 41 (Court of
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Appeal); King v Police [2010] NZAR 45 (High Court); O’Connor v Police [2010] NZAR 50 (High Court) (‘O’Connor’); Police v McDonald [2010] NZAR 59 (High Court) (‘McDonald’); Hunt v The Queen [2011] 2 NZLR 499 (Court of Appeal) (‘Hunt’); R v Balsley [2013] NZCA 258. 19. Gerrard-Smith v New Zealand Police [2016] NZHC 2543, [17].
with approval in Florida v Jardines, 569 US 1 (2013) 8 (Scalia J; Thomas, Ginsburg, Sotomayor and Kagan JJ agreeing). 35. Florida v Jardines (n 34) 9 (Scalia J; Thomas, Ginsburg, Sotomayor and Kagan JJ agreeing). 36. Kentucky v King, 563 US 452 (2011) 469–70 (Alito J; Roberts
See also Warren v Attorney- General [2019] NZHC 1690, [79]–
CJ, Scalia, Kennedy, Thomas, Breyer, Sotomayor and Kagan
[84].
JJ agreeing); Florida v Jardines (n 34) 9 n 4 (Scalia J; Thomas,
20. Tararo v The Queen [2012] 1 NZLR 145, 172 [15] (Blanchard, Tipping, McGrath and William Young JJ) (‘Tararo’). 21. Hamed v The Queen [2012] 2 NZLR 305, 355 [157] (Blanchard
Ginsburg, Sotomayor and Kagan JJ agreeing). Police attendance for the purpose of investigatory questioning has come to be known as a ‘knock and talk’: see, eg, United States v Carloss,
J; Elias CJ and Gault J agreeing). See also 370 [219] (Tipping J),
818 F 3d 988 (10th Cir, 2016); United States v Lundin, 817 F 3d
380–1 [263] (McGrath J agreeing with the conclusion reached
1151 (9th Cir, 2016).
by Blanchard J).
37. Florida v Jardines (n 34) 9 n 3 (Scalia J; Thomas, Ginsburg,
22. Tararo (n 20) 168 [1] (Elias CJ).
Sotomayor and Kagan JJ agreeing), 12 (Kagan J; Ginsburg and
23. Ibid 172 [16] (Blanchard, Tipping, McGrath and William Young
Sotomayor JJ agreeing).
JJ) quoting Toogood v Spyring (1834) 1 CM & R 181, 193. 24. Ibid 172 [15] (Blanchard, Tipping, McGrath and William Young JJ). 25. Hunt (n 18) 513 [51] quoting Pannett v P McGuinness & Co Ltd [1972] 2 QB 599, 606 (Lord Denning MR). 26. McDonald (n 18) 67 [35]. 27. Howden (n 15) 751 (Cooke P). For the most explicit rejection of
38. Brennan v Dawson, 752 Fed Appx 276 (6th Cir, 2018). 39. Housing Act 1982 (NT) s 28W(2)(a). 40. Ibid s 28D(2), read with s 5 definition of ‘public housing safety officer’ and s 28W(2)(a). 41. Ibid s 28D(1). 42. Family Violence Protection Act 2008 (Vic) s 157(1)(d) (emphasis added).
Cooke P’s approach see McDonald (n 18) 67 [34], approved
43. Police Powers and Responsibilities Act 2000 (Qld) ss 19(3), (5).
in Tararo (n 20) 171 [12] n 19 (Blanchard, Tipping, McGrath and
44. R v Hammond (2016) 258 A Crim R 323, 332 [49].
William Young JJ). See also Maisey v Police [2014] NZHC 629,
45. R v Yatta [2015] QDC 58, [90]–[92].
[22]–[23].
46. Paul Finn, ‘Statutes and the Common Law’ (1992) 22(1)
28. See, eg, Hall v The Queen [2019] 2 NZLR 325. 29. R v Le [2019] SCC 34, [126]–[127] (Karakatsanis, Brown
University of Western Australia Law Review 7, 22. 47. O’Connor (n 18) 56 [19].
and Martin JJ). See also R v Evans [1996] 1 SCR 8, 18–19
48. Halliday v Nevill (1984) 155 CLR 1, 20 (Brennan J).
[16] (Sopinka, Cory and Iacobucci JJ; La Forest J agreeing in
49. Evans (n 29) 13 [4] (La Forest J).
the result) (‘Evans’); R v Côté [2011] 3 SCR 215, 225–6 [12]
50. Note, however, that South Australia has made doorknocking an
(McLachlin CJ, Binnie, LeBel, Fish, Abella, Charron, Rothstein
offence in certain circumstances: Summary Offences Act 1953
and Cromwell JJ), reciting with apparent approval the trial
(SA) s 50.
judge’s finding that the police were trespassers in that case. 30. R v Le (n 29) [127] (Karakatsanis, Brown and Martin JJ), quoting R v Le [2018] 402 CRR (2d) 309, [107] (Lauwers JA). 31. R v Le (n 29) [127] (Karakatsanis, Brown and Martin JJ). 32. See, eg, R v Mulligan [2000] 128 OAC 224, [24], [31] (ONCA) (Sharpe JA; Laskin and Feldman JJA agreeing); R v Fowler [2006] NBR (2d) 106, [31] (NBCA) (Richard JA; Drapeau CJ
51. Justice Mark Leeming, ‘Theories and Principles Underlying the Development of the Common Law — The Statutory Elephant in the Room’ (2013) 36(3) University of New South Wales (UNSW) Law Journal 1002, 1022–3. 52. Stephen McLeish, ‘Challenges to the Survival of the Common Law’ (2014) 38(2) Melbourne University Law Review 818, 827. 53. See, eg, Howden, where Cooke P was sensitive to the fact that
and Turnbull JA agreeing); R v Rogers (2016) 4 DLR (4th) 347,
the legislature had not statutorily empowered police to attend
[51], [54] (SKCA) (Jackson JA; Whitmore and Ryan-Froslie JJA
upon private property to conduct breath tests, apparently
agreeing); R v Parr (2016) 27 CR (7th) 131, [3], [44], [55], [60]
because the legislature considered the topic ‘too difficult or
(BCCA) (Fitch J; Saunders and Smith JJ agreeing). Cf R v Lotozky
sensitive to tackle’: Howden (n 15) 750.
(2006) 81 OR (3d) 335 (ONCA), [32], [35]–[36]. 33. See David P Miraldi, ‘The Relationship between Trespass and Fourth Amendment Protection After Katz v. United States’ (1977) 38(3) Ohio State Law Journal 709.
80
34. McKee v Gratz, 260 US 127 (1922) 136 (Holmes J), quoted
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54. See, by analogy, Brodie v Singleton Shire Council (2001) 206 CLR 512, 571 [132] (Gaudron, McHugh and Gummow JJ). 55. Even in areas that are subject of non-exclusive Commonwealth legislative power, ss 107–109 of the Australian Constitution
are capable of accommodating policy
62. See, generally, William J Stuntz, ‘The
LAW SOCIETY NORTHERN TERRITORY
diversity as between the states and
Pathological Politics of Criminal Law’
8.30 am – 5.00 pm, Monday – Friday excluding public holidays
territories, and a measure of policy
(2001) 100(3) Michigan Law Review
3/6 Lindsay Street Darwin NT 0800
diversity (but not inconsistency) as
505.
between the states and territories and the Commonwealth. 56. Gabrielle Appleby and Brendan
63. Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 303
GPO Box 2388 Darwin NT 0801 T
(08) 8981 5104
E lawsoc@lawsocietynt.asn.au www.lawsocietynt.asn.au
[94] (Gummow and Kirby JJ; Hayne J
www.facebook.com/lawsocietynt
Lim, ‘Democratic Experimentalism’
agreeing at 306 [105]). See also Esso
www.twitter.com/lawsocietynt
in Rosalind Dixon (ed), Australian
Australia Resources Ltd v Federal
Constitutional Values (Hart Publishing,
Commissioner of Taxation (1999) 201
ABN 62 208 314 893
2018) 221, 230–3.
CLR 49, 63 [27] (Gleeson CJ, Gaudron
COUNCIL
and Gummow JJ); Baker v The Queen
Maria Savvas, President
57. Kable v Director of Public Prosecutions
Carly Ingles, Vice-President
(NSW) (1996) 189 CLR 51, 112–13
(2012) 245 CLR 632, 666–7 [113]–[114]
(McHugh J); Lipohar v The Queen
(Heydon J); Justice Michelle Gordon,
(1999) 200 CLR 485, 505–7 [43]–[50]
‘Analogical Reasoning by Reference to
Glen Dooley, Councillor
(Gaudron, Gummow and Hayne JJ),
Statute: What is the Judicial Function?’
Anna Gill, Councillor
551–2 [167] (Kirby J) (‘Lipohar’).
(2019) 42(1) University of New South
58. Paul Finn, ‘Statutes and the Common
Wales (UNSW) Law Journal 4, 16–22. Cf
Law: The Continuing Story’ in
Binsaris v Northern Territory (2020) 94
Suzanne Corcoran and Stephen
ALJR 664, 673–4 [44] (Gageler J).
Bottomley (eds), Interpreting Statutes
64. The law of implied licences depends
(Federation Press, 2005) 52, 59. See
on the Court’s estimation, based on
also Justice L J Priestley, ‘A Federal
‘the common behaviour of citizens of
Common Law in Australia?’ (1995) 6(3)
our community’ (Munnings v Barrett
Public Law Review 221, 232–3; James
[1987] Tas R 80, 87), of whether ‘most
Stellios, ‘The Centralisation of Judicial
… householders’ would consent to
Power within the Australian Federal
a particular attendance on private
System’ (2014) 42(2) Federal Law
property (Howden (n 15) 751 (Cooke
Review 357, 376, 378.
P)).
59. This is not a topic that has received
65. Robert Orr, ‘Kable v DPP: Taking
much academic or judicial attention.
Judicial Protection Too Far?’ (1996) 11
For analogous consideration of how
AIAL Forum 11, 15.
Emma Farnell, Treasurer Victoria Bell, Secretary
Richard Henschke, Councillor Dr Guzyal Hill, Councillor Matthew Littlejohn, Councillor Ruth Morley, Councillor Lisa O’Donoghue, Councillor Bernadette Raumteen, Councillor Sarah Strzelecki, Councillor Leonique Swart, Councillor Josine Wynberg, Councillor SECRETARIAT Kelvin Strange, Chief Executive Officer Julie Davis, Corporate Services Manager Fiona Kepert, Manager Regulatory Services Kieren Ko, Regulatory Services Solicitor
judicial developments in constitutional
Patrick Berends, Complaints Investigator
law have a homogenising effect, see
Des Crowe, Complaints Investigator
Gabrielle Appleby, ‘The High Court
Marian Wilson, Senior Policy Lawyer & Pro Bono Coordinator
and Kable: A Study in Federalism
Chantal May, Executive Assistant
and Rights Protection’ (2014) 40(3)
Evie Buffon, Publications & Communications Officer
Monash University Law Review 673, 674, 681, 686–90; Stephen McLeish SC,
Carolyn Zombolas, Events & CPD Coordinator
‘Nationalisation of the State Court
Leonie Stokes, Licensing Officer
System’ (2013) 24(4) Public Law
Afaisa Hicks, Reception & Administration Assistant
Review 252, 253–60. Cf Brendan Lim, ‘Laboratory Federalism and the Kable Principle’ (2014) 42(3) Federal Law Review 519, 527–37. 60. See above nn 43–5 and accompanying text. 61. Lipohar (n 57) 509 [57] (Gaudron, Gummow and Hayne JJ).
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Restrictions might be easing but that doesn’t mean the threat is over... not by a long shot. Coronavirus is still out there and it only takes one person to undo all of the hard work that has be done so far to limit the spread of this invisible killer. ●● maintain physical distancing, ●● wash your hands frequently,
and ●● be kind to those around you... please stay at home if you feel unwell.
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