On 16 May 2025, The Law Commission of England and Wales published a detailed report arising from the first comprehensive review of the Wills Act of 1837 in almost 200 years.
The recommendations are noteworthy, and a draft Bill involving a complete rework of the Wills Act has been produced.
The content and course of the draft Bill through Parliament will be followed with interest in Australia.
The wills project of the Law Commission commenced in 2016.
The Law Commission concludes in its report that reform is needed in a number of respects, and notes that:
The principle of testamentary freedom is a valuable aspect of owning property, giving owners the right to give their property to others on their death;
Whilst the law governing wills is old, its age alone would not be a good reason to reform the law;
“[M]any of the rules governing wills achieve policies or safeguards that reflect human nature and commonly held beliefs that remains as true or necessary today as they were in previous centuries.”
The summary of the report includes:
“However, some things have changed. Most people will live longer than their ancestors did, and, as a consequence, more people will suffer from ill health and a decline in their mental capacity that are commonly associated with old age. The property that the average person owns may be more valuable than it was in the past. Not so long ago, documents would have been in paper form only; but documents in electronic form are now far more prevalent than paper documents. We therefore think that reform is necessary.”
The Law Commission stated the aims of the project were to make recommendations to reform the law so that it better:
Supports the exercise of testamentary freedom;
Protects testators, including from undue influence and fraud; and
Increases clarity and certainty in the law were possible.
Areas where recommendations were made for change include as follows.
Dispensing power
Giving the Court a dispensing power to order a will be valid despite not complying with formality requirements – such as provided for in s.18 of the Succession Act 1981 (Qld);
Age of testator
Reducing the age of a person being able to make a valid will from 18 to 16;
Rectification
The Court being able to rectify a will where it is satisfied that the will does not given effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will – as with that provided for in s.33 and s.33A of the Succession Act;
Statutory presumption of undue influence
Introduce a statutory presumption of undue influence, whereby “if the Court does infer that undue influence occurred, the evidential burden will shift to the person seeking to prove the will to satisfy the Court, on the balance of probabilities, that undue influence did not take place, and that the will did in fact reflect the testator’s own freely formed intentions”.
The proposed section 15 of the Bill to new Wills Act relating to testamentary undue influence states as follows:
15. Testamentary undue influence
(1) Subsection (2) applies if, in proceedings on a probate claim—
a party alleges in any particulars of claim, defence or other statement of case that a person exerted undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will, and
there is evidence which provides reasonable grounds to suspect that the undue influence was exerted.
(2) In deciding the claim, the court may find the undue influence to have been exerted unless the contrary is proved on the balance of probabilities.
(3) In determining whether there is evidence which satisfies subsection (1)(b), the court must (among other things) have regard to any evidence about—
the conduct, in relation to the making of the will or change, of the person alleged to have exerted undue influence over the testator;
any relationship of influence between the person and the testator;
the circumstances in which the will was made.
(4) For the purposes of this section a person exerts undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will if the will or change is made as result of the person overpowering the testator’s volition (without convincing the testator’s judgment).
(5) In this section “probate claim” means any claim relating to the business of obtaining probate and administration, other than non-contentious or common form probate business (within the meaning of Part 5 of the Senior Courts Act 1981 (see section 128 of that Act)).
(6) Nothing in this section prevents a court from finding undue influence to have been exerted as a result of an allegation in subsection (1) being proved on the balance of probabilities.
Invalidating a gift
The rule invalidating a gift in a will to a witness, or to their spouse or civil partner (of that witness) should also be extended to the cohabitant of a witness, the person who signed the will on behalf of the testator and the spouse, civil partner or cohabitant of a person who signed the will on behalf of the testator.
However, the Court can save such a gift if it considers it just and reasonable to do so having regard to the conduct of that person relating to executing the will or proving the will’s validity.
Effect of marriage or civil partnership
The rule that marriage or civil partnership revokes a will should be abolished.
The Law Commission reason for this includes:
“most people do not know about this automatic revocation rule. The result is that testators’ wills are being revoked without their knowledge, and without testators necessarily wanting their will to be revoked”;
Further, “we are concerned that the rule that marriage revokes a will is possibly being exploited for the purpose of enabling “predatory marriage” ”;
“we therefore believe that abolishing this rule will add a layer of protection for vulnerable people at risk of this insidious form of financial abuse”.
In Queensland, a will is revoked by the marriage of a testator pursuant to s.14(1) of the Succession Act.
Testamentary capacity
The test for whether a person has the mental capacity necessary to make a will is currently that as set out in the English case Banks v Goodfellow (1870).
The Law Commission notes that the Mental Capacity Act 2005 (MCA) provides the current test for whether a person has mental capacity to make a decision in many areas of their life, covering a broad range of financial and warfare decisions that may need to be taken on behalf of a person who lacks capacity.
The Law Commission states:
“The MCA creates a presumption that a person has capacity unless it is shown that they do not. It sets out a two-stage test. First, the MCA sets out the circumstances in which the person is taken to be unable to make a decision for themselves, because they are unable to understand the information relevant to the decision; retain that information; use or weigh that information as part of the process of making the decision; or communicate the decision. Second, the person’s inability to make decision as defined, must be caused by an impairment of the mind or brain, or a disturbance in their functioning. Where parts of the tests are satisfied, the person lacks capacity in relation to the specific decision. This lack of capacity can be temporary or permanent….”
The Law Commission continues further:
“There are wider benefits of including will-making within the scheme of the MCA as a whole. The MCA test provides a clear test of capacity. Adopting the MCA test will ensure that developments in the law on capacity generally will apply equally to the law governing testamentary capacity. It will also make the law more clearer for those who assess capacity as part of their roles – such a medical practitioners – in relation to a wide range of types of decisions”.
The Law Commission therefore recommended that the tests set out in the Mental Capacity Act 2005 should apply to all assessments of testamentary capacity.
The Law Commission however recognises that there is a long history of case law with regards to testamentary capacity over the last 200 years and that this case law will remain relevant to the operation of the MCA test when it is being used to assess someone’s capacity to make a will, and “in particular, it will continue to inform the information relevant to the specific decision of making a will.”
In this regard, the Law Commission recommends that the MCA Code of Practice which provides guidance to those assessing capacity under the MCA, should refer to and explain the elements of the Banks v Goodfellow test.
The Mental Capacity Act 2005 test presumes that a person has capacity unless it is shown that they do not. The Law Commission recommends that this presumption of capacity should apply in the context of making a will – as it presently does.
The Law Commission further recommends “that there should be a code of practice on testamentary capacity issued in the Mental Capacity Act 2005 on assessing capacity, and that anyone preparing a will or assessing capacity in their role as a professional or for payment should be required to have regard to it”.
Electronic Wills
The Law Commission notes that the formal requirements for a valid will remain nearly exactly the same as they were when the Wills Act 1837 was enacted.
The Law Commission recommends that provision should be made for electronic wills, on the basis that electronic wills must be secure. The Law Commission states:
“They must provide the same level of security against fraud and undue influence and provide the same level of certainty and evidence about the testator’s intentions as paper wills. Our review has led us to conclude that they can: that electronic wills can be made in a way that will provide strong evidence that the will was executed by the testator; cause the testator to think carefully about what they want to achieve with their will; direct the testator into complying with standard, clearly defined requirements; and provide sufficient protection for testator’s against fraud and undue influence when making their will.”
Further with respect to electronic wills, the Law Commission says that it should be possible for the requirement for witnesses – or a person signing on the testator’s behalf – to be in the testator’s presence to be met by remote presence by way or a visual transmission (for example by video call).
Draft Bill
The Law Commission has produced a draft Bill of an entirely new Wills Act, in order to provide “a single, modern Act that contains all the legislation governing wills in one place”.
The Law Commission concludes in its summary:
“Therefore, our draft Bill for a new Wills Act does a number of things. If enacted, it would amend the law to bring into effect our recommendations. Where we are not recommending that the law should be changed, the draft Bill converts existing provisions of the Wills Act 1837 into modern provisions and brings into one place some of the other provisions that are about wills, in other legislation, so that they can be found in one place. The draft Bill dispenses with provisions of the 1837 Act where we have concluded that they no longer serve any function.
The draft Bill has been written in a modern and accessible way, using updated and simplified language.”
These recommendations and the draft Bill will no doubt be closely considered by Australian state law reform commissions and their legislatures.
The Law Commission’s summary of its key recommendations is here.
The NSW Court of Appeal considered this issue in the recent decision in Tok v Rashazar [2025] NSWCA 94 (7 May 2025).
Such an assessment will normally be assessed as at the date of breach, but that rule may yield in certain circumstances, as discussed by Stern JA (with whom Payne and Kirk JJA agreed).
The topic of using wasted expenditure in such an assessment was also considered.
Stern JA said:
Date of assessment of damages for breach of contract
An important predicate of the primary judge’s reasoning at [102] (set out at [31] above) was that the value and profitability of Rashazar on the counterfactual that it had become a 30% shareholder of Fresh Cut were relevant to the assessment of damages for breach of contract. Implicit in this was a finding that events after the date when the obligation of Mr Tok to transfer the shares crystallised would be relevant to the assessment of damages. The correctness of this finding was implicitly raised in ground one, as the appellants contended that they could have put evidence before the Court as to the value of the 30 shares in Fresh Cut as at the date of breach.
In considering this contention, the starting point is necessarily “[t]he rule of the common law … that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed”: Robinson v Harman[1848] EngR 135; (1848) 1 Exch 850 at 855 (Parke B); Tabcorp Holdings Ltd v Bowen investments Pty Ltd(2009) 236 CLR 272; [2009] HCA 8 (“Tabcorp”) at [13] (French CJ, Gummow, Heydon, Crennan and Kiefel JJ). As to when damages are assessed, ordinarily, as was held in Johnson v Perez[1988] HCA 64; (1988) 166 CLR 351 at 367; [1988] HCA 64, damages for breach of contract are assessed as at the date of the breach, however:
Wenham v Ella(1972) 127 CLR 454; [1972] HCA 43 (“Wenham”), cited in the extract set out above, involved a breach of contractual obligation of the appellant to transfer shares which would have given the respondent a 6/20 undivided share in a profit-making property. The High Court, upholding the trial judge’s award, held that the respondent’s compensable loss included the loss of “the product of the interest in the land” from the date of the failure to transfer to the date of judgment: at 461 (Barwick CJ; see also Menzies J at 463, Walsh J at 464-465; Gibbs J at 472-4; Stephen J at 474). Menzies J observed that the “rules which operate satisfactorily in cases where purchasers have not paid money, cannot be applied automatically to cases where purchasers have paid money for what has not been delivered to them”: at 464 (see also Barwick CJ at 463 and Gibbs J at 473). Walsh J at 466 (cited with approval by Steward J in Elisha v Vision Australia Ltd[2024] HCA 50; (2024) 99 ALJR 171 at [82]) described an error in the appellant’s contention as:
“treating rules which constitute useful guidance in the ascertainment of damages as rigid rules of universal application, instead of treating them as prima facie rules which may be displaced or modified whenever it is necessary to do so in order to achieve a result which provides reasonable compensation for a breach of contract without imposing a liability upon the other party exceeding that which he could fairly be regarded as having contemplated and been willing to accept.”
In a passage recently cited with approval by Ward P (Meagher JA and Griffiths AJA agreeing) in Khattar v Khattar[2023] NSWCA 133 at [215], Gibbs J observed at 473-4 that:
“The general principle that damages are normally measured by reference to the circumstances at the date of the breach of contract does not mean that events that have occurred after that date may never be considered. The appellants’ contention on this point, if correct, would mean that evidence could never be given of the amount of profits lost as the result of a breach and that the every-day practice of receiving evidence as to the damage that had in fact flowed from a breach and as to steps that were or could have been taken to mitigate a loss is erroneous. However, the evidence as to the income in fact lost by the breach was in my opinion plainly admissible. As to the contention that it was wrong that the amount of damages should have depended on the time that elapsed until judgment, the answer simply is that until that time the respondent was kept out of his profits as well as deprived of his asset and its value.”
To similar effect, the link between the date at which damages for breach of contract are assessed and the duty to mitigate was explained by Oliver J, in Radford v de Froberville [1977] 1 WLR 1262 at [1285] (referred to by the High Court in Tabcorp and cited with approval in Renown Corporation Pty Ltd v SEMF Pty Ltd(2022) 110 NSWLR 246; [2022] NSWCA 233 at [11] (Brereton JA, Meagher and Mitchelmore JJA agreeing)):
“It is sometimes said that the ordinary rule is that damages for breach of contract fall to be assessed at the date of the breach. That, however, is not a universal principle and the rationale behind it appears to me to lie in the inquiry — at what date could the plaintiff reasonably have been expected to mitigate the damages by seeking an alternative to performance of the contractual obligation?”
(See also H G Beale, Chitty on Contracts (35th ed, 2023, Sweet & Maxwell) at [30-107] and E Peel, Treitel, The Law of Contract (15th ed, 2020, Thomson Reuters) at p 1162.)
Consistent with this, Wenham was distinguished in CH Leahman Investments Pty Ltd v Tuesday Enterprises Pty Ltd[2024] WASCA 142 (“CH Leahman”) at [274] (Buss P, Vaughan JA, Lundberg J) on the basis that in Wenham the purchaser had paid the full purchase consideration whereas in CH Leahman “[a]t all times the appellant continued to be in a position to deploy the resources that it would otherwise have had to commit to the completion of the purchase of the Rexwells’ share”.
Further, in the passage set out at [53] above, Gibbs J recognised that events after the date of breach may be relevant to the assessment of damages even when assessed as at the date of breach. To similar effect, in Hungerfords v Walker[1989] HCA 8; (1989) 171 CLR 125 at 163; [1989] HCA 8, Dawson J held:
“That is not to say, however, that when damages are assessed as at the time of the wrong, foreseeable future losses which flow from the wrong, and not merely from delay in compensating for the wrong, may not be included in any award. … Moreover, the quantification of future losses may be made by reference to events which have occurred between the time when the cause of action arose and judgment upon the basis that actual facts are preferable to speculation: Willis v. The Commonwealth. Damages so assessed nevertheless form part of the loss flowing from the breach and are not damages for delay in the payment of damages.” (footnotes omitted)
Having regard to this authority, the primary judge did not err in finding events after the breach of contract were relevant to the assessment of damages for breach given that Rashazar paid in full for the 30 shares in Fresh Cut in 2016 and none of the respondents were aware of the breach of contract until some years after it occurred.
Using wasted expenditure as the basis for assessing damages for breach of contract
A second critical premise of the primary judge’s conclusion at J[102] is that this was an appropriate case in which to assess damages for breach of contract by reference to wasted expenditure. The primary judge’s key finding in this regard was predicated both upon the lack of information available to the respondents and the Court and upon her Honour’s finding that the question of what might have happened to Fresh Cut if Rashazar had been a 30% shareholder was imponderable.
The plurality judgment of Edelman, Steward, Gleeson and Beech-Jones JJ in Cessnock at [61] explained when it is that damages for breach of contract can properly be calculated by reference to wasted expenditure:
“The legal onus to prove loss arising from a breach of contract rests on the plaintiff as the party seeking to recover damages. However, where a breach of contract has resulted in (namely, caused or increased) uncertainty about the position that the plaintiff would have been in if the contract had been performed, then the discharge of the plaintiff’s legal burden of proof will be facilitated by assuming (or inferring) in their favour that, had the contract been performed, then the plaintiff would have recovered the expenditure they reasonably incurred in anticipation of, or reliance on, the performance of the contract. The strength of this assumption or inference, and thus the weight of the burden placed on the party in breach to adduce evidence to rebut the inference in whole or in part, will depend on the extent of the uncertainty that results from the breach. Expressed in this way, this facilitation principle is tied to its rationale, namely the uncertainty in proof of loss occasioned to the plaintiff by the defendant’s breach.”
At [139], the plurality further explained:
“In summary, the facilitation of the plaintiff’s proof arises in cases where the defendant’s breach of an obligation results in uncertainty and difficulty of proof of loss for the plaintiff, who has incurred expenditure in anticipation of, or reliance on, the performance of the obligation that was breached. The facilitation of proof that reasonably incurred expenditure would have been recovered has been described by Leggatt J as an example of courts doing the ‘best they can not to allow difficulty of estimation to deprive the claimant of a remedy, particularly where that difficulty is itself the result of the defendant’s wrongdoing’. In applying the principle ‘reasonably … according to the circumstances of each case’, the plaintiff is given an evidential ‘benefit of any relevant doubt’ that expenditure would be recouped to the extent that it was reasonable, with the practical effect of giving the plaintiff ‘a fair wind’ to establish loss. The strength of the wind will depend upon the extent of the uncertainty resulting from the breach by the defendant. And all of the circumstances, including any evidence led by the defendant, must be considered. The plaintiff is given a ‘fair wind’ but not a ‘free ride’.” (footnotes omitted)
Having regard to these principles, the appellants’ contention that the primary judge erred in assessing damages for breach of the share sale agreement by reference to wasted expenditure should be rejected. The primary judge correctly identified that integers relevant to the assessment of damages premised upon Mr Tok’s compliance with the share sale agreement were “imponderable”. As I explain below, that plainly flowed from Mr Tok’s breach. That, together with the obvious difficulty in obtaining reliable financial information about the financial performance of Fresh Cut, justified the primary judge facilitating the respondents’ burden of proof by assuming (or inferring) in their favour that, had the contract been performed, they would have recovered the expenditure they reasonably incurred in anticipation of, or reliance on, the performance of the contract.
BPM released their debut album in 2011 – Happiness And Surrounding Suburbs – which includes It’s Nice to be Alive. Such song is featured in the link below.
BPM have released a further six albums and five have debuted in the ARIA top five albums.
It was recently announced that BPM will be supporting the stadium tour of Oasis in Australia kicking off in October 2025 – what a gig.
As to the video, I live in the neighbourhood of the seriously steep street that the skateboarder is riding down, and
I would not recommend doing the same; and
I would like to see how he goes on the lower section, including navigating the perpendicular road at the bottom.
The Law Society Gazette (UK) recently reported on an English High Court judicial review case where the Judge referred lawyers to the regulatory authorities that had made submissions containing five fake cases.
In an article titled ‘Judge flags lawyers to regulators after five fake cases cited’ by John Hyde dated 7 May 2025, it was reported that the lawyers in question initially responded to the Court that the false case citations were ‘cosmetic errors’ but later recanted – accepting that they were serious errors.
The Judge said because the Barrister in question had not been cross-examined a finding could not be made that the fake cases had been generated by artificial intelligence.
The Judge further said he had ‘substantial difficulty with members of the bar who put fake cases in statements of facts and grounds’.
A finding was made that the lawyers’ conduct was ‘improper, unreasonable and negligent’.
The transcript of the hearing was ordered to be sent to the Bar Standards Board and the Solicitors Regulation Authority.
The Australian Commonwealth Parliament first opened in Melbourne on 9 May 1901, just over 124 years ago.
Thousands of people watched the royal procession as it made its way through the streets of Melbourne to the Exhibition Building
The then new King of England, Edward VII, sent his son and heir, The Duke of Cornwall and York (later King George V) as his representative at the Opening where the ceremony was witnessed by 12,000 invited guests.
“Big Picture” by Tom Roberts
The online document by the Parliament of Australia titled ‘Exhibitions’’ says further as to the Opening of the first Parliament:
The senators-elect assembled on a low platform in front of a dais in the Main Hall of the Exhibition Building at 11.30am. The Duke and the Governor-General, Lord Hopetoun, and their parties entered at 12 noon and ascended the dais. The elected members of the House of Representatives, waiting in the western nave, were then called by the Usher of the Black Rod, and took their places to the senators.
The clerk of the parliament read the Letters Patent …
The Duke declared the parliament open and the new members of parliament then made their way to Victoria’s Parliament House in Spring Street, where the senate met to elect a president and the House of Representatives. Detailed parliamentary business was left until 21 April 1901.
The members of the Barton Ministry after the first election were as follows:
An historical memento was published to record the Opening, known as “the Swan Souvenir”.
That complete document as provided by the National Library of Australia is here.
The booklet is titled Swan Souvenir – The Royal Visit to Australia
I became aware of this document as I discovered an original of it in family records earlier this year. That set me off to make enquiries, and the National Archives of Australia verified what the document was. The booklet is 25 x 15cm and has a soft fabric like cover with a knotted piece of string acting as the binder.
The Swan Souvenir includes the following photographs of note:
The Duke and Duchess of Cornwell and York
The Barton Ministry
The Royal procession on Princes Bridge
The Opening Ceremony inside the Exhibition Building
The Governor General, Lord Hopetoun and Countess Hopetoun.
As obtained from the National Archives of Australia, the following is the itinerary for the Governor-General and the Duke for Thursday, 9 May 1901:
His Excellency The Governor General will leave Government House at 11 o’c, and Their Royal Highnesses will follow him a few minutes later, to attend the Opening of Parliament. The Procession will proceed over the appointed route to the Exhibition Buildings.
The Ceremony will occupy about an hour, after which Their Royal Highnesses will return to Government House, followed by His Excellency’s carriage.
In the Evening, Their Royal Highnesses will leave Government Houe at 5 minutes to 9, and proceed via Princes Bridge, Flinders St, and Spring St to the Exhibition Building, to witness the State Concert given in their honour by the Commonwealth Government. They are due to arrive there at 9:15, and will remain there about 1.5 hours, leaving the Buildings at about 10:30 and returning by the same route to Government House.
Written by Nick Cave and released in their 10th studio album ‘the boatman’s call” in 1997.
The single was released on 7 January 1997.
Wikipedia says that in Cave’s lecture “The Secret Life of the Love Song” to the Academy of Fine Arts Vienna, he counts the song among those he is most proud of having written.
Cave said he wrote the song in rehab: “I was actually walking back from church through the fields, and the tune came into my head, and when I got back to the facility I sat down at the cranky old piano and wrote the melody and chords, then went up to the dormitory, sat on my bed and wrote those lyrics.” [Nick Cave and Sean O’Hagan (2022). Faith, Hope and Carnage. Farrar, Straus and Giroux. p. 51. ISBN 9780374607371.
A master gifting us some of his finest work.
From the album of the same name – this sublime song was written by David Gilmour and Roger Waters in 1974 when in Pink Floyd.
Wikipedia says:
Both Gilmour and Waters have praised the song as one of Pink Floyd’s finest. Waters has noted that the collaboration between himself and Gilmour on the song was “really good. All bits of it are really, really good. I’m very happy about it.” Gilmour has playfully called “Wish You Were Here” “a very simple country song” and stated that “because of its resonance and the emotional weight it carries, it is one of our best songs.”
“Wish You Were Here” was recorded at Abbey Road Studios, as part of the sessions for the entire album.
The following is a performance by David Gilmour on vocals and guitar at the Royal Festival Hall, London in January 2002 as part of the Meltdown Concert.
Also performing were Neill MacColl: Guitars, backing vocals Michael Kamen: Piano, English horn Chucho Merchán: Double bass Caroline Dale: Cello Dick Parry: Sax Nic France: Drums & percussion Gospel Choir: Sam Brown (choir leader), Chris Ballin, Pete Brown, Margo Buchanan, Claudia Fontaine, Michelle John Douglas, Sonia Jones, Carol Kenyon, David Laudat, Durga McBroom, Aitch McRobbie, Beverli Skeete.
8 April 2024 marked 30 years since Kurt Cobain of Nirvana passed away, at 27.
I have friends that saw Nirvana perform at Fisherman’s Wharf, Southport in 1991 – not long after the release of It Smells like Teen Spirit.
Nirvana was then the support act for the Violent Femmes. Unfortunately I didn’t make it, but I hear it was fantastic, and hectic.
They then played at the first year of the Big Day Out – in 1992 – in Sydney on Australia Day.
It would be safe to say that if Nirvana had come back to the Southport Spit a year later – the crowd would have been huge – and utter chaos.
In 1993 Nirvana recorded MTV Unplugged in New York.
This record was released on 1 November 1994, some 7 months after Kurt’s passing.
There is a lot I could say about the record – it is one my favourites – but I won’t bore you.
Suffice to say that it does not contain a large number of the group’s then big hits – apparently a cause of some disagreement with record producers.
I could have picked any of the songs, they are all excellent, but here are two:
Jesus Doesn’t Want Me for a Sunbeam
About a Girl
You will notice a youthful Dave Grohl on drums, who had been recruited in 1990.
I would recommend a dinner party or drive with the whole record playing through.
I’m no expert – just a music lover, but in my view the record is a legitimate bookmark in the history of rock and roll.
On 6 February 2024 the US Court of Appeals (for the Federal Court) for the District for Columbia Circuit, comprising Henderson, Childs and Pan, Circuit Judges, held that Donald Trump as a former President was not immune from facing criminal prosecution.
Notable extracts from this joint decision include:
Former President Trump moved to dismiss the Indictment and the district court denied his motion. Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution. [p.3]
….
We emphasize that whether the Indictment’s allegations are supported by evidence sufficient to sustain convictions must be determined at a later stage of the prosecution. [p.4]
….
Indictment charges that he and his co-conspirators allegedly advanced their goal through five primary means: … [p.5]
….
Importantly, by the time the United States Senate conducted a trial on the article of impeachment, he had become former President Trump. At the close of the trial, on February 13, 2021, fifty-seven Senators voted to convict him and forty three voted to acquit him. See 167 CONG. REC. S733 (daily ed. Feb. 13, 2021). Because two-thirds of the Senate did not vote for conviction, he was acquitted on the article of impeachment. See id.; U.S. CONST. art. I, § 3, cl. 6. [p.7]
….
On December 1, 2023, the district court issued a written opinion denying the two motions that are based on presidential immunity and the two constitutional provisions. In relevant part, the district court rejected Trump’s claim of executive immunity from criminal prosecution, holding that “[f]ormer Presidents enjoy no special conditions on their federal criminal liability.” United States v. Trump, — F. Supp. 3d —, 2023 WL 8359833, at *3 (D.D.C. Dec. 1, 2023). It concluded that “[t]he Constitution’s text, structure, and history do not support” the existence of such an immunity, id., and that it “would betray the public interest” to grant a former President “a categorical exemption from criminal liability” for allegedly “attempting to usurp the reins of government.” Id. at *12. It also held that “neither traditional double jeopardy principles nor the Impeachment Judgment Clause provide that a prosecution following impeachment acquittal violates double jeopardy.” Id. at *18.3. [p.8]
….
Nor was the question presented in Midland Asphalt anything like the one before us. Procedural rules are worlds different from a former President’s asserted immunity from federal criminal liability. The Supreme Court has repeatedly emphasized that the President is sui generis. In the civil context, the Court has held that the denial of the President’s assertion of absolute immunity is immediately appealable “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” Fitzgerald, 457 U.S. at 743. And in United States v. Nixon, the Court waived the typical requirement that the President risk contempt before appealing because it would be “unseemly” to require the President to do so “merely to trigger the procedural mechanism for review of the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment. When the Court instructs us to read its opinions “with a careful eye to context,” see Nat’l Pork Producers, 598 U.S. at 374, it authorizes us to consider the “special solicitude” due a former President, Fitzgerald, 457 U.S. at 743. [p.14]
….
Former President Trump’s claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility. [p.19]
….
The Supreme Court exercised its cognizance over Presidential action to dramatic effect in 1952, when it held that President Harry Truman’s executive order seizing control of most of the country’s steel mills exceeded his constitutional and statutory authority and was therefore invalid. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–89 (1952). The Congress had not legislated to authorize President Truman’s seizure and in fact had “refused to adopt the seizure] method of settling labor disputes.” Id. at 586. President Truman could lawfully act only to execute the Congress’s laws or to carry out his constitutional duties as the Executive; and he lacked authority from either source to seize the steel mills. Id. at 587– 89. As Justice Jackson explained, the Court’s holding invalidating the executive order was proper because “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Id. at 637 (Jackson, J., concurring). Based on Youngstown and Marbury, the Supreme Court in Clinton easily concluded that “when the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton, 520 U.S. at 703. [ps.23-24]
….
Further, the Supreme Court has repeatedly affirmed the judiciary’s power to “direct appropriate process to the President himself.” Clinton, 520 U.S. at 705. The President does not enjoy absolute immunity from criminal subpoenas issued by state and federal prosecutors and may be compelled by the courts to respond. Burr, 25 F. Cas. at 33–34; Nixon, 418 U.S. at 713–14; Vance, 140 S. Ct. at 2431. We have “200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, even when the President is under investigation.” Vance, 140 S. Ct. at 2427 (citations omitted); see also Clinton, 520 U.S. at 703–05 (recounting history of sitting Presidents complying with court orders to provide testimony and other evidence). [ps.24-25]
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We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct. [p.30]
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We consider the policy concerns at issue in this case in two respects. First, we assess possible intrusions on the authority and functions of the Executive Branch and the countervailing interests to be served as those concerns apply to former President Trump’s claim that former Presidents are categorically immune from federal prosecution. We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation. [p.31]
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Additionally, recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency. President Gerald Ford issued a full pardon to former President Richard Nixon, which both former Presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment. See, e.g., President Gerald R. Ford’s Proclamation 4311, Granting a Pardon to Richard Nixon, Ford Presidential Library (Sept. 8, 1974); Statement by Former President Richard Nixon 1, Ford Presidential Library (Sept. 8, 1974). Before leaving office, President Bill Clinton agreed to a five-year suspension of his law license and a $25,000 fine in exchange for Independent Counsel Robert Ray’s agreement not to file criminal charges against him. [p.33]
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Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior. [p.34]
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Weighing these factors, we conclude that the risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight. [p.35]
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There is also a profound Article II interest in the enforcement of federal criminal laws. The President has a constitutionally mandated duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. As part of this duty, the President is responsible for investigating and prosecuting criminal violations. [p.36]
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We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count. * * * At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754. [ps.40-41]
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We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that “[c]oncerns of public policy, especially as illuminated by our history and the structure of our government” compel the rejection of his claim of immunity in this case. See Fitzgerald, 457 U.S. at 747–48. We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly “official” action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by “double jeopardy principles.” Accordingly, the order of the district court is AFFIRMED.16 [p.57]
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On 28 February 2024, the US Supreme Court agreed to hear argument on the appeal filed by Donald Trump from this decision in the week of 22 April 2024.
On 13 March 2024 the High Court handed down the decision ofRedland City Council v John Michael Kozik & Ors [2024] HCA 7.
The plurality of Gordon, Edelman and Steward JJ – Gageler CJ and Jagot J dissenting – dismissed the appeal.
The claim was a class action by the plaintiff ratepayers levied by the defendant local authority with and paid invalidly raised special charges. The plurality found against the appellant authority in respect of the respondent ratepayers’ claim in restitution at common law.
The plurality said (at [179] – [181]):
Unjust enrichment
In Australian common law, unjust enrichment has a “taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another”.[170] During the historical period in which cases were pleaded by forms of action, these categories of case were forced, by the use of fictions, into forms (rather than causes) of action, including counts of money had and received, quantum meruit and quantum valebat.[171] Today, as causes of action, the categories include unjustified payments of money or performance of services that benefit another in circumstances where the benefit was the result of mistake, undue influence, duress, or an absence or failure of consideration.[172] Since unjust enrichment expresses only the conclusion that follows the exposed process of reasoning within these categories of case, it has repeatedly been said in this Court that “unjust enrichment” is not a premise that is capable of direct application.[173]
At a high level of generality it can sometimes assist when considering the boundaries of a particular category of case to structure a common law enquiry into whether a defendant has been unjustly enriched by asking what benefit a defendant has received, whether the benefit is at the plaintiff’s expense, whether the circumstances render the provision of that benefit unjust, and whether any defences apply.[174] But these well-known concepts such as “benefit” or “unjust” are not to be applied in the abstract, divorced from the rules that have been developed in particular categories of case.[175] In this category of case, the relevant benefit is the receipt of money by the Council and the “injustice” arises because the payments by the respondents and other group members were made by mistake of law and without obligation to do so. Those matters were not controversial in this Court.
The issue that arises consequent upon the respondents’ prima facie claim at common law is whether the Council has a defence of good consideration based on the Council’s performance of the relevant works. In short, the Council submits that it can resist restitution because: (i) the “consideration” or basis for its receipt of the payment was that it confer a corresponding benefit upon the respondents and group members, and (ii) that it did so. As will be seen, both submissions are wrong. It is convenient to begin with the concept of “benefit” and the concept of “consideration” in the context of failure of consideration as a ground for a prima facie claim for restitution of unjust enrichment before considering “good consideration” as a defence to restitution.
As to the Council’s defence of good consideration, the plurality said (at [204] – [212]):
There are three independent reasons why the Council’s defence of good consideration must fail. First, restitution of the special charges by the Council would not cause any failure of the basis upon which the relevant works were performed by the Council. Secondly, the particular individual respondents and other group members did not benefit from the relevant works in the sense in which the concept of benefit operates in the law of unjust enrichment. Thirdly, to recognise a defence of good consideration based on a benefit to the respondents would stultify the operation of the Local Government Act.
(1) No failure of the basis for the relevant works
The Council’s defence does not satisfy the requirement for the defence of good consideration that restitution of the special charges must cause the basis of the Council’s performance of the relevant works to fail. At certain points in the submissions of the Council and the State of Queensland this requirement was accepted, and described as being a requirement that the relevant works were “correlate[d]” with or provided “in exchange for” the payment.
The Council’s performance of the relevant works was not done objectively on the basis that the works would be funded by the special charges because, as explained in the background section above, it was admitted at trial that the Council was obliged by statute to perform the relevant works. The Council’s obligation to perform the works was independent of the levying or receipt of special charges. On this appeal, the Council ultimately accepted that this admission had been made at trial and did not seek to re-open the admission. Indeed, as also explained above, for each of the Aquatic Paradise works, Sovereign Waters works and Raby Bay works the special charges had only been used to defray, respectively 66 per cent, 78 per cent, and 26 per cent of the cost.
At one point in oral submissions, the Council appeared to deny any requirement for the defence of good consideration that the performance by the Council was in “exchange” for, or on the basis of, the payment of the special charges. The acceptance of that submission would require recognition of a different defence, or an adaptation of the defence of good consideration by reference to a broad notion of counter-restitution. However, even if the requirement were not one of exchange but were more broadly one of sufficiently close connection,[237] it was common ground that the defence would still require that the respondents or group members obtained a benefit in the sense recognised by the common law. They did not.
(2) No benefit to the respondents or group members
It may be accepted, consistently with the primary judge’s unchallenged finding, that the respondents and other group members, or their land, “specially benefit[ed]” from the relevant works within the meaning of that phrase in the Local Government Act. But the relevant works did not benefit the respondents or other group members in the sense in which benefit must be established to satisfy a defence of good consideration. As explained above, it is usually sufficient for a benefit that a person merely performed non-gratuitous services that the other party had requested, or for which the other party freely accepted a liability to pay.[238] Conversely, it is not generally a benefit to receive a service that is not requested and is not freely accepted with an opportunity to reject.[239] As Pollock CB said in argument in Taylor v Laird,[240] “One cleans another’s shoes; what can the other do but put them on? … The benefit of the service could not be rejected without refusing the property itself.”
Perhaps due to the absence of any request for, or free acceptance of, a liability to pay for the relevant works by the respondents, the Council submitted that the benefit to the respondents and other group members was not the value of the service but was, effectively, a net accretion to the wealth of the respondents and group members by an asserted increase in the value of their land by one to two per cent. Apart from the problem that this misunderstands the relevant meaning of benefit, the Council’s submission is factually inaccurate. As explained in the background section of these reasons, the relevant works were performed on public land. The evidence was that any incidental benefit for the land of the respondents and group members was not an increase in the value of that land but an avoidance of a diminution in value on the basis that no work was carried out. Even then, the enhancement was not uniform and the evidence was that objectively quantifying the enhancement was not possible for any individual respondent or group member. Even assessed by reference to the colloquial, and incorrect, meaning of “benefit” as a net accretion to the wealth of a recipient, no individual respondent or group member was shown to have benefited.
Furthermore, the Council could not justify the law of unjust enrichment treating as a benefit an increase in the value of an owner’s land and dwelling, in circumstances in which the owner has no intention to sell the land or to use it in order to obtain a loan. It was not suggested, for example, that the Council should be limited to a lien over the land of each respondent or group member, realisable only upon sale of the land.[241]
(3) A defence of good consideration would stultify the operation of the Regulations
The final reason that the Council has no defence of good consideration is that the application of such a defence would stultify the operation of the Regulations, just as the joint judgment and Brennan J in David Securities considered that allowing the bank a defence of good consideration would stultify the purpose of the statutory provision that rendered void any contractual obligation that required a borrower to pay withholding tax.[242]
The Resolutions to levy the special charges were invalidbecause the Resolutions did not comply with the requirement in the Regulations to identify an overall plan which stated the estimated cost of carrying out, and the estimated time for carrying out, the overall plan. As the respondents submitted, the purpose of these cost and time safeguards in a plan is to ensure that care is taken by a local council before incurring substantial costs that will ultimately be borne by a section of the community. In the course of allowing a claim for restitution in Kiriri Cotton Co Ltd v Dewani,[243] a case to which the joint judgment referred on this point in David Securities,[244] the Privy Council said that “[t]he duty of observing the law is firmly placed … on the shoulders of the landlord for the protection of the tenant”.[245] So too, in this case, the duty of compliance with the Regulations in respect of the cost and time safeguards in a plan is firmly placed on the shoulders of the Council for the protection of those members of the community within its area of government. The common law defence of good consideration, if it applied here as a defence to restitution of the payments, would need to be excluded to avoid undermining the purpose of the Regulations.
[170]Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 at 516 [30].
[171] Bullen and Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law, 3rd ed(1868) at 35-37, 44-50. See Baker, “The History of Quasi-Contract in English Law”, in Cornish et al (eds), Restitution: Past, Present and Future (1998) 37 at 37-56.
[172] See Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 at 673; David Securities Pty Ltd v Commonwealth Bank of Australia[1992] HCA 48; (1992) 175 CLR 353 at 374, 379; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 156 [150]-[151]; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 at 516 [30].
[241] Mitchell, Mitchell and Watterson (eds), Goff & Jones on Unjust Enrichment, 10th ed (2022) at 97-98 [4-39]; Cooney, “Restitution for Unrequested Improvements to Land” (2023) 139 Law Quarterly Review 179 at 183.
