Being issue 100 – published 19 years after Hearsay was first published in 2006 – this is a notable occasion for both Hearsay and the Bar Association of Queensland.
This milestone reflects, principally, the effort of Hearsay’s many contributors over the years, be they BAQ barrister members, the judiciary, solicitors or our sponsors.
Thanks go also to the Association’s Dianne Lyndon, (Chief Executive) Kelsey Rissman and Kasey Rowland – and their predecessors – for their diligence and assistance to successive editors in the production of Hearsay over such 100 issues. Hearsay’s deputy editor Philip O’Higgins KC, sub-editor Stephen Keim S.C. (who has been in that role since Hearsay’s inception) and other editorial team members Carolyn Conway and Seraphina Noble join us in expressing such gratitude.
Hearsay 100, we believe, meets the occasion.
The article ‘The Communist Party Case, the Role of the Advocate and the Rule of Law’ by the Honorable Justice Glenn Martin AM SJA is worthy of its lead billing. As with his Honour’s earlier article on ‘The Art of Written Submissions’ (Issue 88, June 2022, which now has enjoyed over 14,000 views), it is anticipated that this article will receive broad interest – it is a pertinent discussion of professional obligation by reference to a seminal decision of the High Court of Australia.
Hearsay is proud to showcase Australian – in particular Queensland – art. This issue’s featured artwork is titled ‘Summer, Frenchman’s Beach’ and was painted by Brisbane Artist Ralph Wilson in 2019. Ralph’s art is exhibited at Philip Bacon Galleries and the subject is timely given the fast-approaching June holidays. If any further inspiration is needed to get away, hopefully this will assist. A profile of Ralph Wilson is included.
Hearsay’s interviewee this issue in ’10 Minutes with …’is the highly regarded Honorable Hugh Fraser KC, now retired and enjoying his extra-curricular activities post Court of Appeal. He canvasses his time at the bar and on the bench.
The ‘Thought for this Issue’ is Sir Owen Dixon’s observation – if not adjuration – that ‘counsel brings their learning, ability, character and firmness of mind to the conduct of causes’. So much ought spawn reflection by every barrister.
The sub-articles include ‘Ethics as Advocacy’ by Phillip O’Higgins KC, who explains cogently how ethical practice in advocacy can be a powerful weapon in Counsel’s armoury in successful pursuit of their client’s litigious interests.
Matthew Hickey OAM KC pays tribute to the memory of the Honourable Peter Hilton of the Family Court of Australia, and invites the profession to support a charitable endeavour set up in his memory. Please do support this worthwhile cause.
The ‘Regional Bar’ section item is afforded by the highly regarded regional silk Justin Greggery KC, concerning having chambers regionally and in Brisbane. Food for thought here!
The usual eclectic mix of informative and entertaining articles and case notes on Professional Conduct and Practice, Advocacy, Reviews and the Arts and Inter Alia (including Mintie celebrating Issue 100) are included.
Enjoy, and happy 100 to Hearsay!
We do request your contributions to the editors, deputy editor or editorial team:
Editor – Richard Douglas KC (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com). Editor – John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). Deputy Editor – Philip O’Higgins KC (T: 3232 2122; M: 0417 997 725; E: philip.ohiggins@carbolic.com.au); Sub-Editor – Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) book and podcast reviews. Editorial Team – Carolyn Conway (T: 3229 2631; M: 0407 757 780; E: conwaycj@jeddart.com) and Seraphina Noble (T: 3210 6537; M: 0447 224 754; E: snoble@qldbar.asn.au)
In Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 (15 April 2025), the New South Wales Court of Appeal overturned a trial judge’s adjudication that a tortious duty of care was owed by a Catholic Diocese in respect of alleged sexual abuse by an assistant priest. Such abuse was alleged to have occurred when the plaintiff, in about 1968, was in attendance with the assistant priest, Father Pickin, at the presbytery of the local Catholic Church on a Friday night. While a lengthy decision dealing with other issues, the point given treatment here concerns the obligation of another priest in the parish to pass on to his superiors a prior complaint by another child of sexual conduct by Father Pickin.
The court wrote:
The knowledge from Mr McClung’s report (notice of contention, para 5)
[219] The plaintiff relied on the knowledge of Fr Pickin’s misconduct, which Mr McClung had reported at the time, to support the existence of a duty. This was the subject of paragraph 5 of the notice of contention, which was:
The Primary Judge erred in failing to find that, prior to the sexual abuse of the respondent by the late Father Ronald Pickin in 1969, the Diocese of Maitland-Newcastle knew or ought to have known that Father Pickin had sexually abused Mr Stephen McClung.
[220] Mr McClung was not cross-examined so as to invite the rejection of his account, and the primary judge regarded Mr McClung’s evidence as credible and reliable. Mr McClung said that Fr Pickin touched his genitals, outside his trousers, repeatedly, in 1965, when he was 16 or 17, when Fr Pickin was an assistant priest at St Columba’s Church in Adamstown.
[221] The primary judge accepted Mr McClung’s evidence, but did not rely upon it to establish that there was a foreseeable risk.
[222] Mr McClung said that in 1966:
… I went to speak to Father Doran at St Columba’s. Father Doran had been my science teacher at St Pius and was a practical, level-headed guy who I respected a lot.
I cannot remember the words that I said, but I told Father Doran that I was being sexually touched by Ron. I did not disclose the abuse by Hodgson because I felt I was burying that and leaving the abuse at St Pius behind me.
[223] The plaintiff submitted that Mr McClung’s disclosure to Fr Doran ought to have led to a finding of actual or, at least, constructive knowledge by the Diocese, because Fr Doran was a priest in the Diocese, and, according to Fr Dillon, “the responsibilities of priests towards their parishioners … were consistent with the normal and traditional practice of the Church and the expectations of the people of the Parish”.
[224] The plaintiff submitted that child sexual abuse was abhorrent, and any right-thinking person would find any disclosure of such conduct deeply disturbing, and requiring report and investigation. He asserted that “it cannot be said that a reasonable person would have taken a contrary view in 1969”.
[225] The plaintiff submitted that:
the evidence was sufficient to find that the notification to Fr Doran by Mr McClung put the Diocese on notice of the risk posed by Fr Pickin because Fr Doran was a representative of the Diocese (particularly in the eyes of a minor) who operated “in communion” with the Bishop, to be regarded by the Bishop as his “co-worker”. Fr Doran, as a priest, was also a person of sufficient responsibility and duty within the Diocese to establish notice for the Diocese.
[226] The appellant disagreed. The appellant submitted that what Mr McClung told Fr Doran was insufficient. It was not suggested that Fr Doran was a senior member of the clergy, “let alone a Trustee”, or that he in fact told anyone. The appellant’s submissions continued:
Further, it is worth noting that the Respondent’s expert Father Dillon observed that reservations and fears now held about children being alone with a non-family member adult were a rarity. And that the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980s was still virtually unknown (in the late 1960s).
It’s not to the point that Father Pickin was engaging in conduct that with the benefit of hindsight reasoning ought to have raised a red flag amongst the Trustees and senior members of the clergy. The question is whether the Trustees, as the individuals who are said to be liable, had relevant actual or constructive knowledge of Father Pickin’s alleged offending and there is no evidence that they did.
[227] (It was said or at least implied by both sides during the hearing that Mr McClung’s reporting of abuse during the confessional concerned Fr Pickin (including 27 February 2025 T 58.6 “reported the same thing to Father Doran and to another Father who had been giving confession”; see also T 25.23). That was an (inadvertent) error. Mr McClung said that he had been sexually abused by another priest, Fr Hodgson, in 1963, while a student at St Pius X High School, and had confessed that. That did not concern Fr Pickin, and in any event nothing was put to suggest that the priest who took Mr McClung’s confession was at liberty to pass on the information concerning that other priest to anyone.)
Consideration
[228] I shall pass over the lack of precision in the submissions as to the meaning of “actual” or “constructive” knowledge of “the Diocese”, which were asserted but not explained in submissions. This issue may be resolved on the basis that (a) the mere report to Fr Doran of itself did not amount to the imputation of any form of knowledge to “the Diocese”, and (b) it was not established that Fr Doran was under any obligation to report what Mr McClung told him.
[229] Knowledge on the part of Fr Doran is not knowledge of the appellant, whether in its own right or as the “proper defendant”. The Roman Catholic Church was and is hierarchical. The knowledge of each and every priest is not taken to be the knowledge of the institution as a whole.
[230] Fr Doran was a parish priest. The plaintiff’s case turned on establishing knowledge by the Bishop or senior members of the Diocese. No attempt was made by the plaintiff to establish who they were. Whoever they were, it was not suggested that Fr Doran was one of them. So far as the evidence suggests, he was not. The yearbook for 1969–1970 identifies seven Diocesan Consultors, the Diocesan Chancellor, and the members of a large number of committees (including the Vicars Forane, the Synodal Judges and Examiners, the Pro-Synodal Judges and Examiners, the Parish Priest Consultors, the members of the Tribunal for Matrimonial Causes, the Diocesan Commission for Sacred Liturgy, the Censor of Books, the Diocesan Director of Pontifical Mission Aid Societies, the Diocesan Directorate of Education, the Director of the Diocesan Priests’ Eucharistic League, the Director of Pastoral Course for Priests, the Director of Priestly Vocation Campaign, the Catholic Family Welfare Bureau and the Sick Clergy Relief Fund Trustees) and Fr Doran was a member of none of them.
[231] If Fr Doran were an employee, it would not follow that his knowledge would be imputed to his employer. The question of imputation of knowledge of a company’s officers and employees to the company depends in every case on context, and is not automatic. That fundamental proposition was emphasised by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission[1995] 2 AC 500 [1995] UKPC 5 and has been repeatedly applied in this jurisdiction: see for example Anderson v Canaccord Genuity Financial Ltd(2023) 113 NSWLR 151; [2023] NSWCA 294 at [255] and Aidzan Pty Ltd (in liq) v K. & A. Laird (NSW) Pty Ltd (in liq)[2024] NSWCA 185 at [70]. In South Sydney Junior Rugby League Club Ltd v Gazis[2016] NSWCA 8, Basten JA said for this Court at [112] that:
It is not correct that the knowledge of every employee of the company, particularly as to the activities of independent contractors having different functions on the company’s premises, becomes the knowledge of the company. As Spigelman CJ noted in Nationwide News Pty Ltd v Naidu “[w]hether a principal is affected by an agent’s knowledge depends upon the context.” Further, “[w]hether the knowledge of a particular person should be imputed to a corporation depends on the scope of that person’s employment.” The Chief Justice continued, by contrasting the functions of specific officers who gave evidence with, “[a] person in a supervisory position … [who] has duties which encompass the receipt of the relevant knowledge and accordingly, could be said to have a duty to communicate and/or act upon it … [t]hat cannot be said to be the case for the other employee witnesses.” [footnotes omitted].
[232] Parish priests are not employees, and there is no reason why, in the absence of a duty to communicate a complaint, more senior priests within a diocese should have the parish priest’s knowledge attributed to them. No submission was made that the effect of s 6O(b) was that the knowledge of each and every priest in a diocese was to be imputed to the proper defendant. If so, that would place unincorporated associations in a different position than incorporated organisations, which would be contrary to s 33 of the Interpretation Act 1987 (NSW). It would also be unrealistic. It is to be borne in mind that the Diocese of Maitland took in the entirety of one of Australia’s largest cities, and more than 12,000 square miles, and there were in the order of 55 parishes and some 200 priests and nuns.
[233] The analysis of the position at law is not assisted by invoking metaphor. The Bishop may as a matter of canon law be in “communion” with a priest who learns of an allegation (just as he may be in “communion” with the assistant priest who committed the assault). That does not mean as a matter of the law of negligence that the knowledge of the priest (or the assistant priest) is imputed to the Bishop.
[234] Nor do I accept the assertion that in the late 1960s it was clear beyond any argument that a priest to whom a complaint was made of sexual abuse such as that told to him by Mr McClung, a first year undergraduate, concerning touching of his genitals the previous year when he was around 17, should have been passed on.
[235] This is a question of evidence. It turns on what a reasonable person in the position of Fr Doran in 1969 would have done. It is important not to assess what a reasonable person in Fr Doran’s position in 1969 would have done against the expectations and knowledge of 2025. The plaintiff did not adduce any evidence that in response to the report of the abuse described by Mr McClung, Fr Doran or some other parish priest would take the matter further. Such evidence as there was pointed in the opposite direction. As the appellant pointed out, Fr Dillon confirmed that in the late 1960s, “[a]mong Catholic people and even among the vast majority of Priests, Religious Brothers and Sisters, the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980’s was still virtually unknown”.
[236] A further matter bearing upon whether a reasonable person in the position of Fr Doran would have taken further steps was the attitude of Mr McClung. There was no reason to think that Mr McClung sought to take the matter further. To the contrary, Fr Pickin officiated at Mr McClung’s wedding in 1972, and his family continued to be involved in the church, including with Mr McClung reading Epistles on Sundays at Merewether where Fr Pickin was parish priest in the 1980s. Of course, Mr McClung’s subsequent conduct was not known in around 1966. Nonetheless, Mr McClung’s conduct after 1966 tends to confirm that when he reported the allegation to Fr Doran he did not expect any further steps to be taken.
[237] I am inclined to agree that what was said by Lord Neuberger MR in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 [2010] 1 WLR 1441 at [65] was equally applicable in Newcastle in 1969:
In the mid-1970s, an allegation by one boy that a priest had fondled his genitals should plainly not have been simply dismissed, but it would not have been treated nearly as seriously then as it would be now. As Lady Hale said in A v Hoare[2008] AC 844 at [54], “until the 1970s people were reluctant to believe that child sex abuse took place at all.” In my view, Father McTernan would have been acting properly, according to the standards of the time, if he had taken the allegation up with Father Clonan and, provided that he was given a convincing denial, he then took the matter no further either in the Archdiocese or through the police. The alleged abuse, though serious, was not of the grossest type, and such allegations are all too easy to make, and if they are passed on and investigated, they can cause considerable damage to the person against whom they were made and to the institution for which he works. By the standards of 1974, such considerations could reasonably have been accorded greater weight than they would today.
[238] It is to be borne in mind that the abuse of which Mr McClung complained was the repeated touching of his genitals, outside his trousers, when he was aged around 16 or 17. It was very wrong of Fr Pickin to do so. It was a crime, it was contrary to Fr Pickin’s vocation, and it was contrary to the relationship of trust which Mr McClung was entitled to expect from a priest. But the wrongness of what Mr McClung reported does not mean that the plaintiff is released from his obligation to establish by evidence all elements of his case.
[239] The issue is whether the plaintiff established that Fr Doran was under any obligation to report what he had been told. Let it be assumed that Fr Doran considered that Mr McClung’s account of what Fr Pickin had done a year before was credible. He should have raised it with Fr Pickin. He may have done so. Fr Pickin may have denied it. He may have said that he could recollect a time when he accidentally touched Mr McClung, but denied any intention to do so. He may have said that he had touched him deliberately, had been in a deal of internal turmoil about it, and said that it would not recur. It is most unlikely that Fr Pickin told Fr Doran that he took every opportunity to indecently assault children entrusted into his care, and would continue to do so. All this is speculation, serving to emphasise what is absent from the evidence relied on at trial.
[240] It may fairly be said that establishing that Fr Doran did something, or ought to have done something, some 60 years ago, is a heavy burden for the plaintiff in a case such as the present. But it is a consequence of the fact that the plaintiff has sued someone other than Fr Pickin in relation to a tort committed many decades ago by Fr Pickin, of which he made no complaint until 2023, leading to the result that he needs to establish that the Bishop or senior priests in the Diocese of Maitland had some level of knowledge, in 1969, that Fr Pickin posed a risk to children.
[241] In the absence of evidence of any knowledge or belief or suspicion by the Bishop or senior priests in the Diocese that Fr Pickin posed a risk to children, I do not see how the appellant, making every assumption in the plaintiff’s favour as to the effect of Part 1B of the Civil Liability Act and the parties’ agreement that it was the “proper defendant” for a claim against the Catholic Church insofar as it operated in the Diocese of Maitland in 1969, owed a duty of care to the plaintiff. …
In David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 (25 May 2025), the NSW Court of Appeal dealt with a dispute between two families which had set up a trading trust to engage in investment. The families fell out – rendering it difficult to manage the trust assets at monthly meetings – but continued to invest and protect the trust assets. The case points up the need to carefully draft the trust deed – depending on the requirements of the parties – and to the need to point to clear evidence of deadlock short of gaining corporate remedies. Given the complexities of the matter, it suffices, for the purpose of this case note, to set out the lengthy headnote, followed by the link to the case if the reader wishes to descend further into the case or any particular issue.
The headnote provides:
HEADNOTE
[This headnote is not to be read as part of the judgment]
In 2010, Mr and Ms Carr and Mr and Ms Ritossa constituted Darbalara Holdings Pty Ltd as the corporate trustee of a unit trust – the Darbalara Property Trust – for the management of farmland near Gundagai, NSW. The two families are equal unit holders. Each of the Carrs and the Ritossas are directors of Darbalara Holdings. Clause 2 of the trust deed provided that “The Unit Holders are presently entitled to the Income [and Capital] of the Trust” and “may require the Trustee to wind up the Trust and distribute the Trust property or the net proceeds of the Trust property”. In 2019, disagreements emerged between the Carrs and the Ritossas, and they had a falling out in a meeting in December 2019. The Carrs expressed an intention to terminate the trust relationship; the Ritossas wished to continue their investment.
In 2020, the Carrs commenced proceedings in the Equity Division seeking the winding up of the trust relationship on the basis that (a) clause 2 of the trust deed allowed a unit holder to unilaterally call for a winding up, (b) the corporate trustee’s conduct was oppressive so as to justify orders under s 233 of the Corporations Act 2001 (Cth), and (c) a receiver should be appointed to wind up the trust given jeopardy to the trust assets.
The primary judge held that cl 2 of the trust deed did not entitle a unit holder to unilaterally call for a winding up. The primary judge found that the evidence did not establish deadlock. Even if there was deadlock, that would not be a sufficient basis for a realisation of the trust assets under s 233. Because the primary judge found that the assets were being adequately managed in monthly board meetings between the directors, there was no jeopardy to the trust assets justifying the appointment of a receiver to liquidate the trust assets and make final distributions to unit holders.
On appeal, the appellants submitted that the primary judge erred in failing to find that (a) cl 2 entitled each unit holder unilaterally to bring the trust to an end (Ground 1), (b) there was a series of deadlocks in the management of Darbalara Holdings Pty Ltd such that the conduct of the corporate trustee, including its failure to allow a redemption of units when requested, was oppressive to the Carrs and contrary to the interests of members as a whole (Grounds 2-8), and (c) a receiver could be appointed, either under s 67 of the Supreme Court Act 1970 (NSW) or in the Court’s inherent jurisdiction over trusts, to “wind up” the trust where there was an irretrievable breakdown in mutual trust and confidence between unit holders who were “quasi-partners” (Ground 9).
The Court (Leeming JA, Stern JA and Griffiths AJA agreeing) held, dismissing the appeal:
As to Ground 1:
On its proper construction, cl 2’s reference to unit holders being “presently entitled” to require the trustee to wind up the trust means the unit holders collectively, rather than individually. The purpose of including the clause was only to make the unit holders owners of an equitable estate under a fixed trust, and thereby eligible for the tax-free threshold under s 3A(3B) of Land Tax Management Act 1956 (NSW). It did not have the effect of allowing a unit holder unilaterally to wind up the trust and claim their own interest: [66]-[93] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Sayden Pty Ltd v Chief Commissioner of State Revenue (2013) 83 NSWLR 700; [2013] NSWCA 111, distinguished.
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98; [2005] HCA 53; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10; Vanderstock v Victoria [2023] HCA 30; 98 ALJR 208, considered.
As to Grounds 2-8:
There is no basis to exclude from the scope of “the conduct of a company’s affairs” the conduct of a corporate trustee in the management of the trust or to exclude from the scope of orders “in relation to the company” an order concerning the interests of the trust beneficiaries: [105]-[112] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Kizquari Pty Ltd v Prestoo Pty Ltd (1993) 10 ACSR 606; Trust Company Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 1334, disapproved.
Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd [2022] SASCA 29; Wain v Drapac [2012] VSC 156, approved.
Mr Carr as a discretionary object of the Carr Family Trust, which was one of the unit holders of the trust, did not have standing to complain of any oppression: [135]-[139] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Mere deadlock in the operation of the corporate trustee or a breakdown in the relationship between its managers does not constitute “oppression” under s 232. The deadlock must be one which leads to further consequences in order to reach the evaluative judgment required by s 233. Mere differences in opinion as to the sale of investments, the unpleasantness of board meetings, and delays in the finalisation of leases, are insufficient: [113], [159]-[177] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
As to Ground 9:
The principle in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360concerns the scope of the statutory power to wind up a company, rather than a proposition at general law that a trust can be terminated where there has been a breakdown in an original relationship of mutual trust and confidence. No such general law proposition can be developed by analogy with statute: [215]-[236] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Because the purpose of the inherent jurisdiction is to preserve trusts and not destroy them, a receiver cannot be appointed in the court’s inherent jurisdiction over trusts to terminate the trust merely because there has been a breakdown in mutual trust and confidence. The position is not otherwise under section 67 of the Supreme Court Act 1970 (NSW): [237]-[254] (Leeming JA); [258] (Stern JA); [259] (Griffiths AJA).
Mir v Mir [2023] NSWSC 408; Baba v Sheehan [2019] NSWSC 1281; Re Austec Wagga Wagga Pty Ltd (in liq) [2018] NSWSC 1476, approved.
In Turner v Richards [2025] NSWCA 83 (1 May 2025), the New South Wales Court of Appeal wrote concerning the vexed issue of adjudicating an agreement made orally in a commercial context. The trial judge found the agreement was made. Payne JA (Leeming and Adamson JJA agreeing) wrote:
…
[2] These proceedings involve a narrow question relating to several corporate entities associated with the Heartland Motor Group. Ms Joanne Richards and Ms Bernice Hooker, the first and second respondents, are sisters. The applicant is Mr Kieran Turner, who I will refer to as KT to distinguish him from his brother Anthony Turner, the fifteenth respondent, who I will refer to as AT. KT is the nephew of Ms Richards and Ms Hooker; his mother, the late Ms Kathryn Turner, was the sister of Ms Richards and Ms Hooker.
[3] The issued share capital of the holding company of the Heartland Motor Group, B.G. Webb Pty Ltd (“BG Webb”), is owned by Mr and Mrs Webb’s descendants. Ms Richards and Ms Hooker (Mr and Mrs Webb’s surviving daughters) hold the majority of the shares in BG Webb. KT, personally and through his ownership of the shares in Turnercorp Pty Ltd, owns or controls a minority of the issued shares in BG Webb.
[4] BG Webb in turn owns all the shares in the third respondent, Bernley Corporation Pty Ltd (“Bernley”). Since 28 June 2013, Bernley has owned 599 of the issued shares in the fourth respondent, Heartland Group Pty Ltd (I will refer in these reasons to this company as “Heartland Group” and to the corporate group of related entities, including Heartland Group, as “the Heartland Motor Group”). One share in Heartland Group is owned by its wholly owned subsidiary, the fifth respondent, Boyded Industries Pty Ltd (“Boyded”) as trustee for the Rossfield Group Trust (“Trust”). The remaining corporate respondents, the sixth to thirteenth respondents inclusive, are all (directly or indirectly), subsidiaries of Heartland Group.
…
[6] The narrow issue in this case relates to the purported appointment of AT as a director of various Heartland Motor Group companies on 6 December 2022. That narrow issue turns on the acceptance or rejection of a single conversation in 2019, which was not recorded in any contemporaneous document, in which KT asserted that he had been validly appointed as chair of the board of directors of all of the companies in the Heartland Motor Group for so long as he retained his direct or indirect shareholding in BG Webb. Two of the participants in that alleged conversation, KT’s grandmother and KT’s mother, had died before the hearing. The primary judge was not satisfied that a conversation occurred in the terms asserted by KT.
…
[9] For the reasons that follow, the appeal should be dismissed.
…
Grounds of appeal
[56] The applicant’s draft notice of appeal, contained two grounds:
1 The primary judge erred in failing to find that the Appellant was the chairman at meetings of Heartland Group Pty Ltd (Heartland Group), Rossfield Nominees (ACT) Pty Ltd (Rossfield Nominees) and Boyded Industries Pty Ltd held on 6 December 2022, because a meeting had occurred in 2019 at which it was agreed that the Appellant was to be the chair of the companies in the group so long as he held shares in BG Webb Pty Ltd.
2 The primary judge erred in finding that, on the proper construction of the articles of association of Heartland Group and Rossfield Nominees, any appointment of Anthony Turner as a director expired by 31 December 2023.
[57] It was common ground that unless the applicant succeeded in relation to ground 1, ground 2 did not arise.
Ground 1 of the notice of appeal
[58] The primary judge adopted a conventional approach to fact finding in a case based on an alleged oral agreement. His Honour had regard to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman(1995) 49 NSWLR 315 at 318 –319; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2)[2008] FCA 810 at [41]; Varma v Varma[2010] NSWSC 786 at [424] –[425].
[59] His Honour also had regard to the fact that objective evidence, where available, is likely to be the most reliable basis for determining matters of credit that arise as to the affidavit evidence: Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1 at 57; Re Colorado Products Pty Ltd (in prov liq)[2014] NSWSC 789 at [10]. The primary judge noted the matters relevant to the assessment of spoken words in the context of a contractual dispute, which were identified by Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd[2015] NSWSC 451:
[94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman(1995) 49 NSWLR 315 at 319.
[60] His Honour bore in mind the observations of Bell P (with whom Bathurst CJ agreed) in ET-China.com International Holdings Ltd v Cheung[2021] NSWCA 24 at [27] –[29] quoting with approval Legatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22]:
…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose — though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
[61] There was every reason for the primary judge not to be satisfied about the reliability of KT’s evidence of an asserted 2019 agreement. I do not accept the applicant’s submission that the decision of this Court in Tjiong v Chang[2025] NSWCA 25 at [41] and [502] intended to change the method of fact-finding in cases involving alleged oral agreements. The Court in Tjiong was not describing a new legal principle. The application of Tjiong leads to no different conclusion in this case. The point made by Basten AJA in Tjiong at [41] was that in a case where there is disputed oral evidence, all the evidence must be considered together. This task, the primary judge undertook here. Price AJA in Tjiong at [502] made the point that oral testimony should not lightly be disregarded in a case where there was no cross-examination casting doubt on the evidence and where there was no question of the reliability of the evidence. Here there was cross examination of KT about his account and a significant question about the reliability of that account.
[62] No error has been shown in the conclusion of the primary judge, essentially for the reasons his Honour gave, that he was unable to reach a state of actual persuasion that the 2019 Meeting took place in the manner or substantially in the terms set out in KT’s evidence.
[63] KT’s case was essentially a simple one. Shortly put, it was that in the absence of an adverse credibility finding about KT’s evidence there was no reason not to accept his evidence about the 2019 agreement. KT stressed that the primary judge made no adverse finding about his credibility. KT emphasised that what he said was a realistic possibility, namely that the meeting could have occurred before 14 February 2019. Accordingly, it was submitted that the primary judge erred in not reaching a state of actual persuasion that the alleged 2019 oral agreement had been reached in the terms asserted by KT.
[64] I am unable to accept this submission. The primary judge made a finding of fact. Although no adverse credibility findings were made against KT or Ms Richards, the primary judge’s failure to be persuaded by KT’s evidence was affected by his Honour’s assessment of the reliability of that evidence, having seen and heard KT and Ms Richards being cross-examined.
[65] As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431:
‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be… Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.
[66] In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55], Bell, Gageler, Nettle and Edelman JJ made clear that a court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint is, however, warranted in relation to a trial judge’s findings of fact unless those findings are “glaringly improbable” or “contrary to compelling inferences” if those factual findings “are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence” (emphasis added).. This principle of restraint applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
[67] KT’s evidence was given more than five years after the date of the alleged conversation in a context of ongoing hostility and litigation between the parties. The conversation was unsupported by any contemporaneous record and was inconsistent with a number of such records. I reject the applicant’s submission that the reliability of KT’s account was not challenged before the primary judge. The principal submission on behalf of Ms Richards at the trial was that KT’s evidence about this conversation should not be accepted as reliable. The reliability of KT’s account was expressly challenged in cross-examination.
[68] The applicant submitted that there was nothing exceptional about the subject matter of the 2019 Meeting that might cause anyone to wish to record it. I do not agree. If such an agreement had been reached, it would have been a significant matter in the history of the Heartland Motor Group. While the Heartland Motor Group had a practice of the CEO of each company in the group acting as chair of the company, never before had there been a formal agreement to appoint a chair, in advance, dependent upon the CEO continuing to hold or control shares in BG Webb. There would have been every reason to have documented such a significant change.
[69] Such contemporaneous documents as there are do not support the existence of an agreement in the terms asserted by KT. The high point of the applicant’s case is what the applicant submits is “a relatively contemporaneous” email of 27 June 2019 recording KT’s understanding that he was chair of the Heartland Group of companies. While this document does contain a reference to a subjective belief on KT’s part consistent with his case, at best it is neutral. The date of the email, 27 June 2019, is months after the conversation, if it occurred, must have taken place. The document is more consistent with the primary judge’s finding that it was a reflection of a long standing informal company practice of the CEO acting as chair, rather than a result of the asserted agreement.
[70] It is true that the minutes of a directors’ meeting of BG Webb on 30 November 2022 contain the following:
(KT) opened the meeting and stated that he was the chairman, (JR) advised she would put herself up as chair for the meeting and voted in favour of her appointment. (BH) voted in favour of (JR) being appointed chair. (KT) said is the paid and appointed chairman.
…
Meeting proceeded with (KT) saying he was the chair.
[71] By November 2022, relations between KT and Ms Richards had become fraught. Despite the claim by KT the “he was the chair” there is no record of his asserting that an agreement had been made with, inter alia Ms Richards, that he be appointed chair for so long as he held or controlled shares in BG Webb.
[72] There is also a recorded claim by KT of the existence of the asserted agreement on 29 May 2024, where KT is recorded as saying he was “voted Chairperson in 2018 for the duration of while he is a shareholder”. As well as referring to the wrong year, the primary judge observed that by 2024, the dispute between KT and Ms Richards was well-advanced. Further, KT participated in and signed minutes in a series of 2021 meetings of various of the Heartland Group of companies which record the separate election of KT as chairperson “of the meeting”: Boyded Industries Pty Ltd directors minutes 7 June 2021 (signed by KT on 22 June 2021); Chicago Properties Pty Ltd directors minutes 7 June 2021 (signed by KT on 22 June 2021); Heartland Blacktown Pty Ltd directors minutes 7 June 2021 (signed by KT on 22 June 2021). These company records are inconsistent with the existence of the oral agreement KT asserts was made. If such an agreement existed there would be no need separately for KT to be elected as chairperson “of the meeting”.
[73] The primary judge was entitled to find, having considered all of the evidence, that his Honour was simply not persuaded that KT had proved to his satisfaction that a conversation occurred in the terms asserted by KT. The case was decided by considering whether KT had discharged his onus of proof. No doubt if his Honour had made a credibility finding, it would have been difficult for him to sit on the potential future stages of the proceedings. His Honour was also no doubt conscious that there was a possibility that more cogent evidence might come to light in the continuation of the trial that bore upon findings his Honour might have made as to credibility or reliability of the evidence he was considering.
[74] The primary judge had the advantage of seeing and hearing KT and Ms Richards give evidence. Weight must be given to the advantage that the primary judge had in those circumstances. No error has been shown in the conclusion of the primary judge that his Honour was not satisfied of the existence of the oral agreement KT asserts was made.
Since 1912 the Royal Horticultural Society has conducted in the month of May – in the grounds of the Royal Hospital Chelsea, on an 11 acre site – the RHS Chelsea Flower Show. It was formerly known as the ‘Great Spring Show’.
The show is attended by the British Royal Family and guests on the first day, by RHS members on the next two days and by the general public on the final two days. Usually more than 150,000 people attend over the duration of the show.
Highlights include the avant-garde show gardens designed by leading members of the horticultural community. The centre piece of the display is a huge floral marque.
The show also features smaller gardens such as the Artisan and Urban gardens. There is a series of stalls displaying garden and country wares.
The writer attended in May this year. While not a gardener by disposition, he was taken by the spectacular floral displays. So much is apparent from the photographs which accompany this piece.
This year a highlight was the unveiling of ‘The King’s Rose’ – 11 years in development by leading rose grower David Austin, and a tribute to his Majesty King Charles III – as seen here.
The reader – if visiting the United Kingdom in May – would do well to consider visiting. Booking in advance online is essential. A very pleasurable three or more hours can be spent enjoying the display.
It is probably fair to say that this review is the first of its type for Hearsay, but for those readers desperately looking to entertain – at weekends or during school holidays – young children, grandchildren, nieces and nephews, it may well be the most important item they read in this Issue.
The ‘Bluey’s World’ experience is an interactive exhibition which allows single digit aged children to enjoy a hands on experience second to none.
The theme, of course – at least in broad terms – is the spectacularly successful ‘Bluey’ animation. Such animation series is written and produced in Brisbane, and distributed globally.
The website describes the experience as follows:
This For Real Life interactive experience immerses you in the playful and hilarious world of Bluey, where things don’t always go to plan, but with a little teamwork and a lot of games, every day is fun.
As soon as you arrive at Bluey’s beloved Queenslander home the excitement begins. With a bit of help from the mischievous Fairies, you’ll bring one of the Garden Gnomes to life and help them to have their bestest day ever by going inside the house to play with Bluey and Bingo!
But you’ll have to find Bluey and Bingo first… and Unicorse is determined to make that as hard as possible. With games, clues and surprises to discover around every corner you must find Bluey and Bingo before it’s too late and the Gnome must return to their gnome-home in the backyard. This is your gnoment!
Venture through the Heeler’s living room, the girls’ bedroom, playroom, kitchen, backyard and more in this original guided Bluey experience, where you will live and play like Bluey and the Heeler Family.
Finish your day in Bluey’s Brisbane neighbourhood complete with the Golden Crown takeaway, Alfie’s Gift Shop, indoor playground and more.
The writer attended with his spouse and three grandchildren aged 5, 7 and 9 years respectively. All children must attend with an adult over the age of 18 years. The admission price is paid for each attendee (adult and child). On Saturdays and Sundays that price is $64.90.
While not cheap by any means, the writer found “money’s worth” afforded. The experience lasts about two or more hours, including in the shop and play area after passing through the eight or so sections therein.
“Bluey” and his family, in fact, are not seen until the latter half of the experience, but that does not detract from the enjoyment entailed.
Visually, the experience is quite spectacular, even for the supervising adults.
My feeling was that the experience is too much for children under 5 years, and not sufficiently engaging for children much over 8 years. So much, of course, depends upon the child in question.
The experience venue is at Hamilton. There is ample (free) parking. The experience is conducted within a large airconditioned temporary structure. The food and drink on sale in the shop is of a high standard – both for adults and children – and surprisingly reasonably priced. A visiting family or group could spend at least an hour in the play area and shop afterwards, the same contained within the airconditioned structure (we spent about 45 minutes therein).
Best to book if proposing to attend.
The writer’s group attended in January. While the experience was expected to conclude mid-year and move interstate, the season has been extended to this Christmas. Having enjoyed the experience, the writer can understand why.
The link to the Bluey’s World website and ticketing is here.
This song was released on the album ‘Sable, Fable’, on 11 April 2025.
It was written by Bon Iver’s founder, and singer-songwriter, Justin Vernon.
Bon Iver is an American ‘indie folk’ band, founded in 2006. Its debut album ‘For Emma, Forever Ago’, was released in 2007. The name of the group derives from the French phrase ‘bon hiver’, meaning ‘good winter’.
In an article in the ‘Amplifier’ section of the New York Times on 30 April 2025, in reference to the new album and the song, it was written:
‘Sable, Fable’ is a pointed projection of the band’s sad-sack reputation, along with whatever had been going on in the life of singer-songwriter Justin Vernon that made it so … Unashamed of its throwback corniness, the bridge of ‘From’ gets me every time.
‘Mayhem’ is a studio album by outstanding American singer-songwriter Lady Gaga. The album was released on 7 March 2025.
The album was preceded by the release of three singles therefrom, namely ‘Die with a Smile’ (16 August 2024), ‘Disease’ (25 October 2024) and ‘Abracadabra’ (3 February 2025).
‘Die with a Smile’ – a duet with Bruno Mars – won ‘Best Pop Duet/Group Performance’ at the 2025 Grammy Awards. ‘Abracadabra’, on its release day, recorded 4.92 million streams on Spotify, which marked Lady Gaga’s biggest debut on that platform with a solo song.
Released to critical acclaim, the album topped the album charts in Australia, New Zealand, the United Kingdom, the United States, Canada and Germany. The critics characterise it as indicating Lady Gaga’s return to her pop roots – ‘The Fame’ (2008).
The album release will be followed by a world tour – including to Australia – going by the title ‘The Mayhem Ball’ Tour. Lady Gaga will perform on tour at Suncorp Stadium, in Brisbane, on 9 December 2025 (Melbourne on 5 December before, and Sydney on 12 December after). Given her artistic attributes – see the two videos below – the concert will be a tour de force.
Below the reader will find links to the official music video release of ‘Abracadabra’ and ‘Die with a Smile’ respectively:
[SPOILER ALERT]
This excellent 8 episode series bears the title of an early song in the repertoire of Leonard Cohen (1934-2016), the Canadian singer, songwriter and poet.
Opening in 1960 in Hydra in Greece, Marianne Ihlen (Thea Sophie Loch Naess) and Cohen (Alex Wolff) are two lonely young people coping with the slings and arrows of life. She is pregnant by her husband, who has abandoned her. He is depressed, struggling with his creativity.
They meet and fall in love and remain together for a decade, living also in Norway, Canada and United States. Their relationship falls apart as Cohen’s career blossoms, while Ihlen – who is Norwegian – pines to return to her home country.
They remained friends. Both died in 2016.
There is an Australian connection, as Cohen interacts, in Hydra, with George Johnston (Noah Taylor) and Charmain Clift (Anna Torv). Taylor and Torv – as always – are impressive.
The first episode begins, and the final episode closes, with Ihlen at the end of her life receiving a touching letter from Cohen. He then appears as a young man – in her imagination – bidding her goodbye.
Screened free on SBS, the series is well worth watching. The writer found the performances of the lead actors compelling. The scenes in Hydra, and across the world, are evocative.
Scott Roxborough of ‘The Hollywood Reporter’ reviewed the series favourably, remarking that it entailed:
… treating its subjects not as great artists in the making, but as ordinary messed-up 20-somethings … [Wolff] wears his Leonard like a crumpled raincoat. The series truly comes alive in the moments when Wolff sings, as Cohen, on camera.
The link to an early – easier listening – version of Cohen singing the title song is here.
In Victorian Legal Services Commissioner v Perry [2025] VCAT 343 and Victorian Legal Services Commissioner v Squirrell [2025] VCAT 244, each decided 17 April 2025, the Tribunal, before a Vice-Presidential Judicial Member, made findings of professional misconduct against two barristers who posted a homophobic notice in each of four lifts in Owen Dixon Chambers East in Melbourne. The lifts were accessible to barristers and members of the public. Each barrister pleaded guilty to professional misconduct. In Perry, the Court wrote:
…
[7] Mr Perry was admitted to legal practice in Victoria on 1 November 1979. At all relevant times he has held a practising certificate entitling him to practise as a barrister. He has not been subject to disciplinary conduct findings in the past.
[8] On 8 August 2022 at 9.27 pm, Mr Perry sent Mr Squirrell, another barrister, an email with an attached document which bore a logo similar to the Victorian Bar logo (the notice). Mr Perry was the author of the notice. The email subject was ‘A new development’ and the text of the email was ‘This is going in the lifts tomorrow’. The notice read:
ESTABLISHMENT OF LGBTQMS REVIEW COMMITTEE
Member of the Bar identifying with one (or more) of the minority groups represented by the anagram above have expressed concerns that briefs from various large litigators both governmental and private have not been disproportionately directed to them.
It is resolved to form a sub-committee to investigate the basis of this concern, how many barristers are affected and what steps can be taken to alleviate the situation.
Membership is open to all members of more than ten years call, be they junior or silk, who fall into at least one of the characters thus, white, male heterosexuals will not be eligible to serve.
The letters ‘MS’ may require explanation. It refers to mud screwers because as the American Jewish comedian the late and great Lenny Bruce once said—Some guys would screw mud.
Expressions of interest should be lodged on the fifth floor, Owen Dixon Chambers East and close on 30 August 2022.
VICTORIAN BAR 10 August 2022
[9] On 8 August 2022, Mr Squirrell printed four copies of the notice at his home. On 10 August 2022, Mr Squirrell displayed a copy of the notice in each of four lifts at Owen Dixon Chambers East. The lifts were accessible to members of the Victorian Bar and members of the public.
[10] The notice was removed from the lifts by an officer of the Victorian Bar on the morning of 11 August 2022.
[11] The fact of the notice and its display was reported in the Herald Sun on 17 August 2022 and The Age on 17 and 18 August 2022.3
Investigation of the complaint and VCAT proceedings
[12] On 17 August 2022, the Victorian Bar made a complaint to the VLSC about Mr Perry.
[13] On 29 August 2022, the VLSC wrote to Mr Perry notifying him of the complaint and their intention to conduct a preliminary assessment of the complaint.
[14] On 15 September 2022, the VLSC wrote to Mr Perry and advised they had decided to investigate the complaint and required that he provide particular information pursuant to s 371(1) of the Legal Profession Uniform Law (Victoria) (Uniform Law).
[15] On 16 September 2022, Mr Perry provided his preliminary response to the notice of decision to investigate the complaint. In this response he admitted to sending the email but did not concede the notice was offensive. He characterised the communication as private and that its purpose was to poke fun rather than cause offense. Mr Perry also raised concerns that the Victorian Bar email system had been hacked.
[16] On 10 October 2022, in a statutory declaration, Mr Perry admitted that, upon reflection, the notice was offensive and resiled from his previous statement that it was not so. Mr Perry clarified that he was the sole author and creator of the notice and stated that his motive was to poke fun at political correctness and wokeism rather than cast aspersions at minority groups.
[17] In response to requests from the VLSC for further information, by letter and statutory declaration dated 21 December 2022, Mr Perry, among other things, stated that he did not know the identity of the person who placed the notice in the lift, and that he did not anticipate the notice would be so placed.
[18] On 19 December 2023, Mr Perry advised the VLSC he would plead guilty to a charge of professional misconduct on the basis of a breach of r 8(a) of the Uniform Conduct (Barristers) Rules 2015 (Conduct Rules). He also agreed he would consent to the penalties which are now agreed between the parties.
[19] On 28 June 2024, the VLSC commenced proceedings at the Tribunal. The original application outlined six charges against Mr Perry.
[20] On 20 August 2024, Mr Perry agreed he would plead guilty to one charge of professional misconduct as above (charge 4 of the original application).
[21] On 21 August 2024, the VLSC filed an amended application for orders, with the one charge of professional misconduct against Mr Perry.
…
THE CHARGE
[26] Charge 1 states that Mr Perry engaged in:
Professional misconduct within the meaning of s 298(b) of the Uniform Law and r 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Conduct Rules) in that, on 8 August 2022, the Respondent engaged in conduct discreditable to a barrister and in doing so contravened rule 8(a) of the Conduct Rules.
PARTICULARS
On 8 August 2022, the Respondent created a demeaning, humiliating and/or offensive and discriminatory notice;
The Respondent sent the notice by email to another barrister, Mr Robert Squirrell, with the subject ‘A new development’ and the text ‘[T]his is going in the lifts tomorrow’;
The notice was subsequently placed in four lifts at Owen Dixon Chambers East, 205 William Street, Melbourne, on 10 August 2022 by Mr Squirrell;
By creating the notice and sending it to Mr Squirrell, the Respondent enabled the notice to be displayed in the lifts at Owen Dixon Chambers East, 205 William Street, Melbourne, and was reckless as to whether his conduct so enabled the display of the notice, and whether Mr Squirrell would display the notice.
…
CHARACTERISATION
[29] The parties have agreed the conduct is characterised as professional misconduct under s 298(b) of the Uniform Law.
[30] As stated by Deputy President Lambrick in Pharmacy Board of Australia v Hopkinson:
The principles that apply to our approach to such an Agreed Statement are well established. The agreement between the parties is a highly relevant matter for our consideration with respect to the factual findings, the characterisation of those findings and the determinations that should be imposed. It remains, of course, our duty to determine these matters and no agreement between a regulator and the professional person under review can supplant that duty. Nevertheless, departure from an agreed position ought not take place without clear or exceptional reason. The Tribunal will not lightly depart from an agreed sanction where the negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances. The Tribunal will, however, reality test and hear submissions in relation to any joint proposal.
[31] The Tribunal’s duty is to determine whether the allegation is proven, consider the characterisation of the allegation and impose the relevant sanction. This duty cannot be supplanted by an agreement between the parties.
[32] Conduct capable of constituting professional misconduct under s 298 of the Uniform Law includes (b), conduct consisting of a contravention of the Uniform Rules. Section 6 of the Uniform Law defines Uniform Rules as including Legal Profession Uniform Rules made under Part 9.2, with section 419 of that part empowering the Legal Services Council to make ‘Legal Profession Uniform Rules with respect to any matter that by this Law is required or permitted to be specified in Uniform Rules or that is necessary or convenient to be specified for carrying out or giving effect to this Law.’ The Legal Profession Uniform Conduct (Barristers) Rules 2015 were made by the Council pursuant to this section of the Uniform Law.
[33] Rule 8 of the Conduct Rules provides that ‘[a] barrister must not engage in conduct which is: (a) dishonest or otherwise discreditable to a barrister’.
[34] The Macquarie dictionary defines ‘discreditable’ as to bring discredit. Discredit is defined as:
—noun 3. Loss or lack of belief, of confidence, disbelief; distrust.
4. loss or lack of repute or esteem; disrepute.
5. something that damages a good reputation.
[35] The joint submissions submit Mr Perry’s conduct was discreditable: he authored a note purporting to be on Victorian Bar letterhead that was demeaning, humiliating, offensive and discriminatory and sent it to a colleague reckless as to whether the notice would be displayed and the harm it would cause.
[36] The joint submissions submit discreditable should take its usual meaning and that it describes a wide range of conduct that is unbecoming of the office of a legal practitioner.
[37] In Victorian Legal Services Commissioner v Lewenberg, a lawyer’s conduct was described as discreditable for allowing religious or cultural solidarity to take precedence over his professional obligation to uphold the principle of equality before the law.
[38] In Legal Services Commissioner v Merkin, the barrister’s conduct included persisting with an appeal ground alleging interference with a transcript, when there was no evidence to support the assertion, and raising a question about the integrity of a judicial officer. The circumstances in the charges were described as ‘…discreditable for a barrister and were likely to diminish public confidence in the administration of justice…’.
[39] Referring to disciplinary cases in other fields, the submissions reference Psychology Board of Australia v Goode, where a psychologist who had referred, amongst other things, to homosexuality as ‘distasteful’ was described as expressing discreditable views.
[40] Further, the joint submissions reference Nursing and Midwifery Board of Australia v Wilcox, where an enrolled nurse’s offensive correspondence, which included homophobic remarks, was held to be professional misconduct.
[41] The words used in the notice written by Mr Perry are not in dispute. With respect to the context and circumstances in which the notice was written Mr Perry has stated:
(a) He was the sole author and creator of the notice;
(b) He sent the notice in a private email as a joke;
(c) He admitted, on reflection, the notice was offensive and resiled from his preliminary response that he did not consider it offensive; and,
(d) His motive was to poke fun at political correctness and wokeism rather than cast aspersions at minority groups.
[42] The joint submissions submit that professional misconduct under s 298 of the Uniform Law does not need to be tied to the definitions in sections 296 and 297. Connection with the practice of law is not necessary for proof of professional misconduct under section 298.
[43] Mr Perry concedes his conduct was discreditable as he authored the notice purporting to be on Victoria Bar letterhead that was demeaning, offensive, humiliating and discriminatory towards members of the lesbian, gay, bisexual queer and trans community and to members of the general community.
[44] The notice is offensive because of the following two meanings.
[45] Firstly, the inclusion of ‘MS’ in the LGBTQI acronym, referencing ‘mud screwers’, has the implicit meaning that the sexual preference of members of the LGBTQI community is akin to ‘screwing mud.’ The notice suggests sexual deviancy by members of LGBTQI community.
[46] The suggestion that sexual deviancy attaches to the LGBTQI community in the present day is offensive, both legally and socially. It is contrary to principles of equality and is legally discriminatory. Gender identity and sexual orientation are attributes the basis of which discrimination is prohibited by Victoria’s Equal Opportunity Act 2010 (Vic). Homosexuality was decriminalised in Victoria over 40 years ago. On 9 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) amended the Marriage Act 1961 (Cth), recognizing marriage as the ‘the union of two people to the exclusion of all others.’ On a social level it reveals a disrespectful and demeaning attitude towards members of the LGBTQI community.
…
[48] Secondly, the phrase in the notice that members of the LGBTQI community ‘have expressed concerns that briefs from various large litigators both governmental and private have not been disproportionately directed to them’ suggests members of the LGBTQI community receive briefs on the basis of identification with the LGBTQI community. This is an affront to those barristers’ professional standing.
…
[49] As Mr McDermott stated:
The notice reflects adversely on all of us as it suggests to the world at large ‘you’re not welcome here because there is something wrong with you’ and/or that you are just some sort of walking protected attribute getting briefs without experience or merit.
[50] Both messages, of sexual deviancy and undeserved briefs, convey an impermissible attitude to the LGBTQI community and are antithetical to the inherent principles relevant to the uniform and consistent application of the law and general principles of equality, fairness, diversity and inclusion.
[51] The conduct did not occur in the course of Mr Perry’s professional practice, so no clients were directly affected. However, the conduct is indirectly connected to legal practice. Firstly, it was displayed in the four public lifts in his workplace, Owen Dixon Chambers East, and was able to be viewed by barristers and members of the general community. Secondly, as referred to above, it implies barristers from the LGBTQI community receive undeserved briefs. Thirdly, the logo on the notice was similar to the official Victorian Bar logo, so sought to attribute the views in the notice to the Victorian Bar, the barrister’s professional body.
[52] Mr Perry has admitted the conduct alleged in the charge, he has admitted its characterisation as professional misconduct and pleads guilty.
[53] The imputation of both deviancy and the unmeritorious receipt of briefs by barristers in the LGBTQI community is objectively offensive and demeaning. For these reasons the conduct constitutes discreditable conduct by a barrister. Taking into account the agreed facts and the plea by Mr Perry, I am satisfied professional misconduct is established on the balance of probabilities. The notice was authored by Mr Perry and, by sending it to Mr Squirrell, he was reckless as to whether it would be publicly displayed. This conduct constitutes discreditable conduct which would reasonably be regarded as disgraceful or dishonourable by barristers of good repute and competency.
[54] I am satisfied the characterisation of the conduct is professional misconduct under s 298(b) of the Uniform Law in contravention of Rule 8(a) of the Barristers Conduct Rules.
…
[60] Mr Shaw made a plea in mitigation on Mr Perry’s behalf and made the following submissions (summarised):
Mr Perry has been in legal practice for 45 years, 40 years as a barrister. His practice in the common law shrunk to 10% of its previous volume during the COVID-19 pandemic and never recovered. Although now largely retired from practice, he volunteers and does pro bono work for the Southport Community Legal Service in criminal and family violence cases. He is now supported by the aged pension which is supplemented by occasional paying briefs.
Within four weeks of the notice being placed in the lifts, Mr Perry ‘…reflected on the matter, … he displayed insight into his conduct and accepted that the note was offensive.’ Mr Perry has read the letter by Mr McDermott and fully appreciates the note is offensive on the grounds detailed above.
Further, Mr Perry admits by authoring the notice he enabled the actions of another, Mr Squirrell, and was reckless as to whether it was publicly displayed.
Mr Shaw submitted a reprimand will ‘…sully his reputation and he will be severely embarrassed.’ The embarrassment will emanate from family, friends, colleagues, the profession and the public becoming aware of his conduct. Mr Shaw submitted this was ‘both educative and a denunciation of his actions’ and meets the purpose of general deterrence.
Mr Shaw submitted Mr Perry is not homophobic. For twenty years he attended at St Agnes Anglican Church in Glenhuntly, a congregation which openly welcomed attendance by members of the LGBTQI community. He was a lay Deacon and worked alongside Vicar Nigel Wright.
[61] In a character reference written on his behalf, Mr Perry was described as mild in demeanour, and that his actions were out of character and not reflective of his opinions. The evidence of Mr Perry’s otherwise good character is supported by the submissions about his voluntary pro bono work and ministrations in his church.
[62] I take into account Mr Perry’s plea of guilty to the serious charge of professional misconduct which is an indicator of his remorse. I note he has no prior matters alleged against him.
[63] He has admitted the offensive imputations in the notice he authored and that he was reckless as to whether it was displayed.
[64] The factual context of this charge is unique. It has the hall marks of a university ‘prank’ were it not for the age of the protagonists and the offensive nature of the notice. Mr Perry does not have any prior disciplinary matters alleged against him and has led a successful career as a barrister, until this incident. It constitutes a serious lapse of judgment.
[65] I accept the proposed penalties are appropriate as meeting the purposes of specific and general deterrence, as well as protection of the community and maintaining the standards of the legal profession.
[66] A reprimand is a strong sanction. Judge Hampel stated it is ‘…[A] powerful statement to the practitioner of how far below the standard of their profession they have fallen by their misconduct. It is in that sense a more personal sanction… A reprimand goes to their personal integrity.’
[67] I accept the submission a reprimand is a substantial penalty and carries considerable personal cost. It serves the purposes of both general and specific deterrence. I accept the likelihood of a repetition of the conduct is minute.
[68] The completion of an additional five Continuing Professional Development units over the next 12 months, as approved by the VLSC, is aimed at relevant education for Mr Perry and will serve to enhance the standing of the legal profession. It also has the added advantage of protection of the community.
[69] The donation of $5,000.00 to a charity is a significant financial penalty for Mr Perry, given his financial situation. In addition, the financial penalty is remedial in nature and for the benefit of the community as the donation will support the legal services provided to the LGBTQI members of the community through the Fitzroy Legal Service Q+ Law program.
