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Recently, in StatusCard Australia Pty Ltd v Rotondo & Anor [2008] QSC 181 (19 August 2008), the Hon Justice Chesterman addressed one of those matters in respect of a table of information relating to horse race betting, which  appeared on a screen display. It was alleged that the copying of the display on the computer screen was a copyright infringement. 

Background

The plaintiff

The plaintiff sold computer programs which enabled horse racing and greyhound punters to place wagers online. The program was introduced with a view to increase the chances of placing a winning wager. It sought to achieve this by arranging information obtained from the Seven Network, which broadcast information it in turn had derived from totalisator betting agencies (TAB) of Victoria, NSW and Queensland.

Access to the information was available following acquisition of a decoding device to receive the coded signal and payment of subscription fees. The information which was available in a table form included:

• the time and place of each race;
• the distance of the race;
• the track condition and weather;
• the horses (or dogs) entered to run each race;
• the names of scratched horses (or dogs);
• the identity of the rider; and
• the horse’s track history.

The program

The program however did not assist pick winners by reference to the track, the rider or the horse. The relevant information for the program was the amount of money placed and the horse upon which it was placed. More particularly, it was a fundamental principle of this program that there existed an identifiable factor known as ‘smart money’. It was considered that there existed a body of persons who, because of ‘inside information’, had an advantage over punters generally. As a result of this advantage, wagers could be placed immediately before a race. This fluctuation in betting was transmitted by the Seven Network without comment, but was a factor influencing the users of the program, who followed the ‘smart money’: [9].

The managing director of the applicant (Rees) conceived the idea of following the ‘smart money’ and wrote the specifications for a program. A computer programmer was retained to write the source and object codes. Rees also wrote a training manual to explain the operation of the program. The program underwent many revisions until 2000 when a program was written which complied and fulfilled with the plaintiff’s specifications.

Relevantly, the program produced a visual display on the screen which used colour codes and a setting out described by the plaintiff’s evidence as ‘not the typical way’. An example appears at [17] of the reasons.

The defendant

The first defendant was a computer programmer who had an interest in horse racing. The first defendant carried on a business of selling “a computer program remarkably similar in function to the plaintiff’s”: [28]. An operating manual was provided with the first defendant’s program which was “astonishingly similar” to the manual Rees wrote. A printout of an example of the first defendant’s screen was reproduced at [28] of the reasons.

The plaintiff did not allege copyright infringement of the source code, object code or the sequence of bits causing the plaintiff’s program functions. The plaintiff alleged copyright infringement of the manual and the ‘work which appear[ed] on a computer screen generated by its computer program’: [77]. In respect of this second allegation, it was claimed that the first defendant set out by means of a different program to replicate the functions of the plaintiff’s program in order to produce a screen display which was a substantial reproduction of the plaintiff’s screen display.

Decision

Chesterman J determined that the plaintiff did not make out its case for copyright infringement of the screen display. His Honour considered that whilst there was similarity between the respective screen displays such as the framework and the identical colour codes, this did not arise from copying of the plaintiff’s computer program.

His Honour did find that the plaintiff succeeded in its claim for infringement of the manual which accompanied the program. In assessing damages, Chesterman J did not accept the plaintiff’s expert evidence who calculated that every sale made by the first defendant meant the loss of a sale to the plaintiff. The figure the plaintiff’s expert calculated was in the sum of approximately $953,000. This was reduced to $760,000. The calculation was based on acquisitions by the first defendant of decoding boxes which would be issued to each new customer.

Dimitrios Eliades

What is your idea of earthly happiness?

To have a large close knit family of in-laws living in another city who do not like to travel.

What could you not live without?

South African humour. For example:- “Before you criticize someone, you should walk a mile in their shoes. That way, when you criticize them, you’re a mile away and you have their shoes.”

What has been your greatest fear?

Appearing before a Head Mistress or Head Master to answer a charge of which I was innocent.  

What is your greatest indulgence?

Having secrets such as my greatest indulgence.

Which skill or talent would you most like to have?

To be able to dissemble.

What is the trait you most deplore in others?

Intolerance. I cannot understand how an intelligent and rational person could be intolerant of another person because of his or her race, colour, sex, or religion, except for scientology.  

What is the quality you most admire in a person?

Humility. If more people were humble, the world would be a better place for others not so inclined.  

What is your most marked characteristic?

Tolerance. Although amongst many other complaints, such as teenage mobile phone sales persons, travel agents who don’t keep their promises, taxi drivers who do not know directions, waiters who constantly refold your napkin into bird shapes, journalists and sub-editors who pun badly, parents who claim their children are gifted and talented and English teachers who admire Hugh Lunn, I keep my strong feelings largely to myself.   

On what occasion do you lie?

See above. And below.

What is your great regret?

That I wasn’t cast as Max opposite Charlotte Rampling in “The Night Porter.”

Which words or expressions do you most over-use?

“Yes Dear.” Although when I ran this by my dear,  she scoffed and said I had forgotten my passion for her “incunabula”.

If you could change one thing about yourself, what would it be?

I am satisfied with myself. I guess if there was one thing, it might be the way I project myself, and by that I mean how I am perceived by others. Some people think I am too gentle and trusting and even slightly naïve and urge me to be more demonstrative.

To what do you aspire?

To see in print my response to a Courier Mail journalist asking “Do you think the Broncos can win this week without Darren Lockyer?”

How would you like to be remembered?

As a good citizen, who, given the chance to fight for his country would have been the first to go.

In a recent book concerning the events leading up to the adoption of the constitution by the former British colonies in North America Gore Vidal observes that it is a common misconception with respect to historical events that those events and achievements are somehow inevitable and preordained. With disarming elegance, Vidal reveals the extraordinary combination of personalities, incidents, changes of mind, realignment of allegiance, and efforts at persuasion that led to the adoption of that constitution and the foundation of that federal republic.

At one stage Vidal digresses to report that DNA testing undertaken on his descendants had confirmed that Thomas Jefferson had fathered children not only by his wife but by a slave of his household. The slave had been given as a wedding present to Jefferson by his father in law. That the draftsman of the Declaration of Independence was himself a slave owner is notorious. That he had fathered children by slaves had been long suspected. A fact that a few had known, or even suspected, but revealed by that same DNA testing, was that Jefferson’s wife and the wedding present shared the same father. One could speculate on whether Jefferson’s father-in-law appreciated that on the same day he gave away two daughters to the same man and whether he regarded the undoubted bondage into which he gave one as in any way equivalent to the likely future circumstances of the other.

And what does that have to do with appellate advocacy in the Family Court? Well as to Thomas Jefferson and his conduct within his own household, not much, but Vidal’s more general observation with respect to the misconception that events, even momentous ones, are in some sense preordained and inevitable has a relevance when one reflects upon the incremental process of change by which judges and in particular appellate judges make law. There is no warrant for assuming that all or any of the cases to which we refer and which make up the jurisprudence in this or any other particular body of law were always going to be decided in the terms in which they have been. Each such case is a particular response to questions posed and arguments framed on the basis of particular facts.

In each of those cases there has been an advocate who devised an argument and presented it with sufficient persuasive force to a bench of skeptical judges in such a way so as to convince them that his or her argument ought be accepted. Without that effort on behalf of that client that alteration to the law would likely not have taken that shape and may never have occurred. It is the intellectual exercise of isolating a point worthy of putting in issue and of persuading trained and skeptical minds that that point has merit, that is the challenge for an appellate advocate, and when taken up and pursued the reward of appellate advocacy.

The advocate before an appeal court needs no reminder that the outcome of that appeal is not preordained.  

Advocacy is an art. Its object is to persuade. The most challenging and rewarding form of advocacy is that which takes place before a court of appeal.

A successful appearance before an appellate court is made so, as much by what is done before you stand up as by what you say before the court. That of itself is no different to being successful as a trial advocate or before a duty judge, but the nature of the proceeding dictates that what one does in preparation is materially different. More particularly, the nature of the appellate process, as distinct from a trial, indicates that the outcome of an appeal is more likely to be materially affected by the performance of the advocate than is the outcome of a trial.

For the purposes of this paper, I am confining my remakes to appeals before the Full Court, whether from a single judge of the Family Court or a Federal Magistrate. Primarily I will adopt the stand point of the advocate for the appellant. The respondent’s advocate has a comparable but different role to play.  

The essential difference between such appeals and reviews of decisions of registrars, for instance, is that you cannot succeed on the former without demonstrating appealable error; whereas by applying for a review of a registrar’s decision, within time, you are automatically entitled to a hearing on the merits afresh, a hearing de novo. Justice Sackville has expressed it as follows:-1

“Despite the efforts of some counsel to broaden the scope of arguments, the issues on appeal are not the same as at trial. The question on a substantive appeal ultimately is whether some identifiable error has occurred which warrants the decision being set aside and different orders being made, either by the appellate court itself or by the proceedings being remitted to the trial court. The object of the exercise is not simply to traverse the issues of fact and law canvassed at the trial. An important part of the advocate’s task, particularly the appellant’s counsel, is to identify early and precisely those rulings that are challenged and the basis for each challenge.”

Putting aside the limited entitlement to lead further evidence on appeal, an appeal is conducted by reference to a record of the proceedings below. “[O]ne does not start with a clean slate”.2 The evidence is given — you cannot alter or influence it. A decision has been made. Your job as the appellant’s advocate is to find a basis by which you can persuade other judges to overturn that decision and perhaps then arrive at a conclusion different to that reached by the trial judge.

Clearly at the commencement of a trial the variables affecting the outcome are much greater than on an appeal. As often as not an advocate’s role at a trial is akin to that of the pilot of a ship. You must steer a course to an acceptable outcome for you client or safe anchorage, doing your best to avoid shoals and reefs or being caught by the tide. Many of the events that occur in the trial will be beyond your control and are often beyond your influence but by the exercise of ordinary prudence and skill many trials conclude with an acceptable outcome. The trial advocate will have exercised prudence to avoid loss as much as skill to attain victory.

An appellate advocate is engaged in salvage not pilotage. The ship has foundered on the reef. You must find the means to re-float and repair it and if you do not it is stuck fast.  

Yet the tools at your command are limited. You no longer have the flexibility available at trial. You have no control over what information is placed before the Court. You have no opportunity to further test the evidence of a witness.

You must pitch your wits against a judgment. It is only by finding error in the judgment or the proceeding at trial that you can succeed.

There are three primary stages to an advocate’s preparation of an appeal:-

Drawing and Settling the Grounds

When briefed to draw and settle grounds of appeal you will have the judgment, the order, the affidavits (which may or not be marked to show what evidence has been admitted at trial) and some but typically not all of the exhibits tendered at trial. Save in exceptional circumstances you will not have the transcript.

You may have been the trial advocate but you need not have been. Your solicitor may have outlined to you his or her impressions of the error made by the trial judge. Your client will often want to confer, both to exclaim at the injustice of the result or the process and to obtain your affirmation of his or her indignation together with a fine measure of the prospects of overturning the judgment.

The first duty of an advocate when receiving such a brief is to advise on the difficulties of successfully appealing discretionary judgments. Your much thumbed and well worn copy of House v. The King3 ought be reverently brought down from the shelves, opened at the joint judgment of Dixon, Evatt and McTiernan JJ4, recited from in solemn tone and explained. In any proposed appeal concerning child welfare you are well advised to conduct a second reading from the gospel according to Gronnow v. Gronnow5 and in particular the judgment of Aickin J.

This exercise is not only a salutary lesson for the disgruntled litigant and ones’ indignant instructor but a reminder to you of the nature of your task.

When you come to the actual task at hand of drawing your grounds and giving serious thought to the orders you seek you must first understand the nature of the Full Court’s power on appeal. You need to understand what is meant by the expression “appeal by way of rehearing”10.

As you read the judgment you should be asking yourself:-

Because you are often drawing the grounds of appeal without the benefit of the full record and you may not have been counsel at the trial, or even if you were, you have long since discarded such notes as you kept, you should check with your solicitor or with the counsel of the trial, if he or she is willing and briefed to assist, whether admissible evidence had been excluded which if admitted may have made material impact, or whether there was significant evidence touching upon an issue which the trial Judge does not appear to have had regard to in his reasons. You would also inquire as to whether any of the conclusions, whether they be conclusions of law or fact, were with respect to matters not the subject of submission or argument.

A ground of appeal is essentially an assertion of an error in reasoning or procedure which if established will compel an appellate court to consider whether to review the decision. Typically they are errors of reasoning but may include procedural irregularities, for instance, failure to extend natural justice to a party or conducting the proceeding in a manner such as to give rise to a reasonable apprehension of bias. Other examples of grounds which precedent establishes may be sufficient to found a successful appeal include errors of fact, errors of law, inadequacy of reasons, miscarriage in the exercise of the discretion, including as may be indicated by a departure from guidelines for the exercise of discretion as contained in prior Full Court decisions, or as may be indicated by an unreasonable or plainly unjust conclusion.

Errors of law may take the form of the erroneous exclusion of admissible evidence or the erroneous reliance upon inadmissible evidence, having regard to irrelevant or extraneous material, or failing to have regard to relevant evidence.  The error may simply be the application of wrong principle. 

An error of fact by a trial Judge will not always result in a successful appeal. In De Winter v. De Winter7 Gibbs J said:-

I wish to draw attention to his Honour’s use of the words “the result may nevertheless be so plainly right”. As I understand it, an appellate court must be so satisfied, notwithstanding the error of fact, before it is entitled to reach the conclusion that that factual error was  immaterial and in particular, a decision is not “plainly right” merely because the decision is within the range of discretion of the primary Judge. The concepts are distinct and different. That this is so, is apparent from an earlier passage in the same judgment of Gibbs J8 where his Honour said:- 

Furthermore, with respect to appeals from findings of fact, do not forget what the majority of the High Court said in Warren v. Coombes9, that is:-

You may find, when appearing for an appellant, it is sometimes necessary to remind appellate courts of that passage.

You will also find that you will be asked questions such as; “Isn’t that based on findings of credit?” or “But the Trial Judge had the advantage of seeing the witnesses”. Such observations by an appellate court are reminders of the deference that an appellate court properly shows to the advantage that a trial Judge may often have over a court of appeal. There is a tension between that circumstance and the nature of the appeal process being one conducted wholly or substantially on the record on the one hand and on the other, the obligation in an appeal, such as that conducted before the Full Court, of the Family Court for the Court to conduct a “rehearing”. In Fox v. Percy 10 Gleeson CJ, Gummow and Kirby JJ said the following11:-

A little later in that joint judgment their Honours said the following:-

If you have drawn grounds of appeal challenging findings of fact whether they be primary findings or findings based on inferences drawn from primary finding you will need to have Fox v. Percy by your side when you draw your outline and when you stand on your feet. But be realistic. The reluctance to overturn findings of fact is real and the opportunities limited. Justice Sackville encouraged the following approach:- 12

You can assume that your grounds of appeal will be amongst the first if not the first part of the appeal record that the appellate court will look at. The process of persuasion starts then.

A ground of appeal is an argumentative assertion you have to establish. It is the statement of your conclusion you seek to establish. Yet you maybe confronted with drawing your conclusion before you have fully satisfied yourself that the premises leading to it can be sustained. The rules once told us that the grounds of appeal “should be set out briefly and specifically”13. There is no such rule now. Rather, there is a direction to file a notice in compliance with Form 2014. Form 20 directs15  that you “state briefly the grounds of appeal”. I do not know whether the requirement of specificity has been abandoned advisedly, but I suspect not.

There is a tension between the obvious desire to direct the Court to those aspects of specific complaint and the desire on the part of the advocate to build in a degree of flexibility so that the grounds as drawn are sufficiently broad to accommodate any alteration in the argument or indeed to accommodate an argument developed well after the grounds have been filed.

A Notice of Appeal containing a multitude of grounds is likely to be the product of an untidy mind and is likely to cause an appellate judge who opens the record to those grounds to groan in anticipation of what may follow. Likewise grounds drawn too broadly, for instance “in reaching the conclusion that she did her Honour erred”, are simply vacuous and not likely to serve any purpose, including acting as a peg onto which you might subsequently seek to place an argument.

I generally try to draw grounds that contain a mixture of very particular and specific complaint followed by generally worded grounds that may well overlap those that precede but are sufficiently general as to enable a subsequently formulated argument to be attached to them.

Sometimes you will find it difficult to settle in your own mind as to whether a particular conclusion contained within a judgment may amount to an error of fact or law or both. Do not feel pressured to make decisions as to whether a given error to one of fact or law at the stage of drawing your grounds, refer specifically to the conclusion and allege that it is erroneous. When you are drawing the ground try to adopt the trial judge’s own words as the description of the conclusion you assert to be erroneous. This expedient avoids the sometimes awkward assertion from the bench “but the trial judge did not say that”.

If you are unsure of the process of reasoning that has lead to the particular conclusion you allege to be erroneous, draw a ground that alleges that in arriving at that conclusion his Honour erred in that it is not possible to discern the process of reasoning by which his Honour reached that conclusion. Again a ground “her Honour’s reasons are inadequate” will not wash.

A ground such as “upon the facts as found, his Honour’s order is unreasonable and plainly unjust” invokes the “Oh my gosh” test and is sometimes a useful backstop.

If you are minded to allege that the trial judge has had regard to extraneous or irrelevant material or failed to have regard to relevant material do not lose sight of the definition of relevance in s.55 of the Evidence Act which provides:-

In establishing the validity of such a ground the hurdle you have to overcome is that evidence is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability…”

Drawing your Outline of Argument

It is at this stage that the process of persuasion starts in earnest. Make your Outline count. You will have your own style but I suggest use Ernest Hemingway rather than Charles Dickens as your guide.

In 1984 Sir Anthony Mason lamented16:-

I can think of no better general guide to the preparation of a written outline.  

You may have a number of grounds you wish to argue some of them will overlap and yet others will logically be unrelated.

Make a decision as to which are your best grounds and irrespective of which number they have in the Notice, lead with them.  Divide your outline under headings addressing particular grounds. Focus in each part of your outline on establishing the proposition contained within the ground that you are addressing. You may find it useful to commence by directing the Court’s attention to the particular passages in the Judgment under challenge and then asserting that there is an error and then demonstrating why it is erroneous. In the process attempt to demonstrate that the error is material, that it matters.

Each word in each sentence ought serve a function in establishing the proposition advanced.

Settling a persuasive outline may and ordinarily will take many drafts. I defy anyone to prepare a persuasive outline of argument in less than 1 full day. If the record is 3 or 4 volumes or more, as it often may be, you will probably find that it will take you 3, perhaps more, days before you have settled an outline to your own satisfaction. The process requires that you read the Judgment thoroughly and critically, that you read the record, that you are familiar with the evidence and that you have adequately researched the law both as to the process of appeal including those cases relating to the particular grounds on which you seek to rely and of course the relevant substantive legal issues.

Where you have a reported case that apparently assists you then, unless it is very recent, you should do all appropriate searches and satisfy yourself as to whether it has been referred to in subsequent decisions and how that case has faired in those subsequent references.

If you are drawing an outline to support an argument challenging a finding of fact then start with the finding. Identify the finding precisely and then clearly state the basis of the challenge. Only when that it is done should you turn to the evidence. Judges of appeal do not want to be taken all over the record either in your outline or your oral submissions unless and until you have first demonstrated the purpose for it. Point to the error, state your challenge and then set out the proof of your challenge.

The same logical process is applicable to the construction of a convincing challenge to an error of law. State the ruling. State the challenge. Take the court to the law to support the challenge.

During the course of your outline, you will make reference to passages in the judgment or particular passages of evidence and in earlier reported or unreported cases. In each case where you refer to the judgment under appeal make a reference in your outline to the volume, page and paragraph number in the record where that passage is to be found. For every piece of evidence to which you make reference again refer to the volume, page and paragraph number or line in the record. If you refer to an earlier authority give its full citation including the page or paragraph reference on which you rely. Meticulous attention to this detail will demonstrate to the court that you have a thorough knowledge of the record and you know what you are talking about.

You are not addressing a jury. You are addressing 3 skeptical judges who will not interfere with a discretionary judgment of the trial judge unless you have demonstrated error.

Disciplining yourself to prepare an outline in such a way also serves the purpose of giving you the familiarity and knowledge not only of the reasons for judgment under appeal and record but also of the relevant body of law. It will arm you well when you are engaging the court in oral argument. Justice Hayne has said17:-

The oral argument

Before you get to court you have to be organised. If your record has multiple volumes mark each one clearly. Have photocopies of your cases and your opponent’s cases on hand, order them in some logical way. Highlight the relevant passages and I find it useful to write the page number on which the highlighted passage appears on the front of my photocopy. Have your outline and your opponent’s to hand. You want to give the court the impression that your argument is already made. You will in fact be petrified; you will have put your copy of your argument in the folder set aside for your opponent’s. You will find yourself at the bar table checking 3 or 4 times to see if you have brought all your cases, whether you have a handkerchief and if you are like me, whether your fly is done up. You will find that you have misplaced your outline for the second time. Ultimately you find it under Volume 1 of the record on top of the rostrum. Your mouth will be dry and you will have spilt the water. Its another day in an appellate court. If it were otherwise you should not be there. This is the adrenalin that sharpens and sustains you as an advocate.

Justice Kirby has put forward 10 suggestions for the appellant advocate.18

They are as follows:-

Might I suggest that the third point above, that is, use the opening of your oral submissions to make an immediate impression on the minds of the judges, is a most useful guide. You should seek to open by directing the Court’s attention to the nub of your argument and then to develop that argument in accordance with, but not slavishly following, the argument as it appears in your outline. Hopefully you will engage the attention of the court. Be prepared to present oral submissions consistent with the written submissions in the outline but placing emphasis upon those aspects that are of significance. You should use the opportunity of oral submission to direct the Court’s attention to particularly telling aspects of evidence or further passages in authorities, upon which you have relied, which you may not have quoted, but may have merely cited in your outline.

You may have the misfortune to address 3 sphinx like judges who simply allow the submissions to roll over them, but that is unlikely. What you are looking for is the opening with which to engage the judges in dialogue. You are inviting them to come and play. One of the 3 will sooner or later address a proposition to you or ask a question of you that indicates that he or she has been following the argument, has read your submissions, and may have found an apparently weak or unconvincing aspect and seeks to test you on it. This is your opportunity to respond.  This is your opportunity to address that concern, seek to answer the proposition.

Watch the expressions in the judges faces. You may find yourself engaged in a debate with one or other of the judges. Be firm, stick to your proposition, if it is a good one. If you recognise that a  judge has exposed a flaw in one aspect of your argument then concede it and move on. Do not flog a dead horse. If you come to the realisation that it would not matter how you expressed it, you are not at that time, going to persuade that judge of your proposition, disengage. A polite way of doing this may be to say to the judge something to the effect of – “well your Honour with respect to that aspect those are my submissions and I do not know that I can assist you any further”. That is not a concession, its using your time before the court to your best advantage. On at least 1 occasion I have found myself addressing an appellate judge in that way and leaving the court expecting to lose only to find when the judgment is published that not only have I won but the judge who I had failed to convince at that moment had upon reflection accepted the force of the argument and written the favourable judgment of the court.

On other occasions I have found that my apparently futile efforts to convince one judge have found favor with other members of the court. The message is do not lose sight of the fact that you are addressing more than one judge.  There is little point in persuading the loquacious minority. As you respond to a question or comment from one member of the court keep a weather eye out for the expressions of interest or lack thereof on the faces of the others. Sometimes you will find that a response to one judge opens up a further avenue of support for a proposition you had been advancing in an early exchange with another member of the court. If appropriate make the link. The key to advocacy before an appeal court is to participate in a process of dialogue but attempt to guide or direct the discussion towards the conclusion for which you contend. With luck by that process not only may you convince the court but you may do so in such a way as to leave the court with the conviction that the favourable conclusion has been formulated by them with some incidental assistance from you. In any event you will not convince the court unless you demonstrate a willingness and capacity to respond in a meaningful way to the concerns or queries raised by the court.

Justice Hayne19 has said:-

In that same paper his Honour said:-

McHugh J in Milat v. The Queen20 observed that “the most important part of the oral discussion [is] the testing of the [written] arguments by a Socratic dialogue…”

Justice Kirby in a similar vein has said21:-

Plan your oral submission by reference to your outline but be ready and wiling to depart from your proposed order or plan by taking the opportunity offered by the discussion with the Court. You can only do this effectively if you are able to address the court from your notes and maintain eye contact. If you spend your time in oral submission reading to the court you have probably wasted your time.

As often as not it is by the process of the discussion that takes place between the advocate and the bench in the course of oral argument that the decision makers are persuaded of the force of the written submissions. You can only engage in this discussion convincingly if you have command of the record, the judgment below, the relevant authorities, your own argument and your opponent’s as well. You will only be convincing if you demonstrate judgment and quickness of mind by your response to questions or comments from the court. Neither is possible without proper preparation.

Sometimes you will be assisted by a familiarity with the bench and the particular philosophical stand points or personalities of the members of the court. Some of this comes with time and exposure to the court. There is an advantage in being familiar with the court. The court’s familiarity with you may or may not work in your client’s advantage. That may depend of whether the prospect of your next appearance induces a bout of nausea or some less violent response.

Appearing for the Respondent

In the best of worlds a respondent to an appeal should engage counsel to consider the notice of appeal within sufficient time to consider whether cross appeal or perhaps notice of contention should be filed within the times provided by the court (with respect to cross appeal). Such documents may assist in focusing the appellate court’s attention on issues that the respondent regards as of importance.

It is also the unfortunate fact that often judgments that contain error do not only contain errors that prejudice only one of the parties.

Often counsel for the respondent needs to be more flexible than counsel for the appellant. It can be that the task of a counsel for the respondent is indeed more difficult than that which confronts the appellant’s counsel.

By the time the respondent’s counsel has risen to his or her feet the argument may well have moved on from where it stood when the outlines were exchanged. Some of that shift in ground will be to your advantage. Other shifts will have intensified old or brought on new problems.

If you do not have regard to the course of the argument your address to the court will appear unresponsive to the issues in that appeal. Ordinarily it will be useful to commence your response by seeking to address the main arguments that have emerged in the appellant’s oral submissions. Link your response back to the relevant passages in your outline.

Be alert for incomplete references to the relevant evidence. Even without consciously seeking to mislead, counsel for the appellant may fail to refer to a passage of evidence that when properly considered undermines the challenge to a finding. It is your job, as the respondent’s counsel, to draw the court’s attention to that passage and demonstrate its significance. Ordinarily this should be done without any suggestion that counsel for the appellant has intentionally mislead. You do not need to use a tone of righteous indignation. Appellate courts do not want to be cast in the role of refereeing brawls between counsel.

You should seek to know the record better than anyone else in court.

Reciting the precautionary passages from well worn authorities concerning appellate court restraint will not of itself serve any purpose without demonstration as to why the trial judge was entitled to his or her conclusion even if all 3 members of the court might not have come to the same view.

In your preparation seek to find other reasons for the trial judge’s conclusion. You may seek to uphold the judgment on that basis, notwithstanding the error. Compare the appellant’s argument with the argument made at trial. A failure to raise an argument at trial may preclude it being raised on appeal or the manner in which the appellant conducted the trial may for other reasons preclude issues being agitated on appeal.

Sometimes much can be salvaged by a respondent in the argument on the re-exercise of the discretion. The gain made by demonstrating error can prove  illusory or of little ultimate value after a well structured argument by the respondent that persuades an appellate court to give more weight to discretionary considerations that were not regarded as of much significance by a trial judge.

Conclusion

What I have set out to do in this paper is offer an approach to appellate advocacy that has been helpful to me. I know that there are others who carry out the role with more polish and skill than I manage. I am confident however that there are few who take more delight or obtain more thrills from the challenges and the risks and the joy associated with that role. Engaging an appeal court in the course of oral argument and acquitting ones self well, is doing what being an advocate is all about. I am an enthusiast and recommend the experience to anyone who enjoys advocacy. Justice Kirby expressed it as follows:-

Timothy D North SC

Footnotes

1. “Appellate Advocacy” The Hon. Justice Ronald Sackville (1996 — 97) 15 ABR 99 at 100.
2. DF Jackson QC “Appellate Advocacy” (1992) 8 ABR 245.
3. (1936) 55 CLR
4. at 504 – 505
5. (1979) 144 CLR 513
6. See CDJ v. VAJ (1998) 197 CLR 172
7. (1979) FLC 90-605 at 78,092
8. at 78092
9. (1979) 142 CLR 531 at 551
10. (2003) 214 CLR 118
11. at [25]
12. Sackville at 106
13. Order 32 Rule 2(7a)(b)
14. Rules 22.02 and 22.7
15. At Part D
16. The Role of Counsel and Appellant Advocacy (1984) 58 ALJ 537 at 541.
17. “Advocacy and special leave applications” speech to the Victorian Bar — Continuing Legal Education, 22 November 2004
18. “The Future of Appellant Advocacy”, the Honourable Justice Michael Kirby (2006) 27 ABR 141 at 142.
19. op cit
20. (2004) 205 ALR 338 at [35]
21. “The Future of Appellant Advocacy” at 145

With this answer to a Dorothy Dix in Question Time on 24 June 2003, the then Prime Minister John Howard elevated disquiet about ‘father absence’3 in separated families to a formal concern requiring the intervention of law reform: thus commenced the most significant change in the direction of family law policy since the introduction of the Family Law Act by the Whitlam Government in 1975.      

Three years after the then Prime Minister articulated his concerns, the Family Law Act was amended.  In research recently presented to the Family Law Residential by Professor Bruce Symth of the ANU, delegates were reminded that in that three years, the debate evolved beyond a singular focus on fixing ‘father absence’ to a more holistic, family-focused policy debate concerning whether equal or substantial time-splits between parents ought be the reality for the majority of separating parents.

The Family Law Amendment (Shared Parental Responsibility) Act commenced in 2006, but the Prime Minister’s invitation to consider a presumption of equal time with each parent was not.  Instead, the 2006 Act provided for, inter alia:

• a presumption of “equal share parental responsibility”4  (ie, shared major decision making between parents), and
• if that presumption is not rebutted, then the court is required to consider ‘equal time’ as the first possible outcome in a hierarchical suite of parenting options.5
• If the court finds that equal time is not reasonably practical or not in the child’s best interest, it must then consider whether “substantial and significant” time would do so.  
• If the Court finds that neither equal time nor substantial and significant time promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.  
• When the presumption is rebutted, the Court is again at-large to consider the parenting arrangements.

The concept of “substantial and significant” time is defined in s 65DAA to effectively mean more than just alternate weekends, and must include time that falls on weekends and holidays and time that does not, as well as time that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and the parent.

The Act also held true to the tradition of changing the nomenclature to describe parenting arrangements.  What was originally “custody and access” had become “residence and contact”.  The latter was designed to eliminate the idea of possession embedded in the former.  Under the 2006 Act “residence and contact” became “live with, spend time with and communicate with” (phrases not conducive to smooth oratory in submissions).6   

The Act also created a layer of pre-Court mediation with the hope that parents could achieve parenting agreements in a cooperative, non-litigious way, with parents being given support to work out their differences.  

In theory, shared care is a wonderful aspiration.  Until the Act was amended, fathers were predominantly relegated to alternate weekends and half-holidays. Mothers, again predominantly, had the majority of time with their children, but mainly the day-in-day-out tedium of school routines, homework, extra-curricular activities, and timetables. 8  Dad could be the weekend parent with few rules and lots of fun, whereas Mum became the school-night disciplinarian requiring the children to brush their teeth, do their homework, tidy their rooms, and so on.  For children, the amendments to the Act meant that instead of only spending every second weekend with dad, (and maybe dinner mid-week in the ‘off contact’ week) they may be able to enjoy more evenly spread time with both parents. The characterisations above are, of course, generalisations, but ones that sounded in many Australian families.  

Complementing the Family Law Act amendments were changes to the child support system, the essence of which was the possibility that the paying parent may pay less in child support if they saw their children more.

Anecdotal experiences of practitioners are that the great majority of cases are ones where the presumption of equal share parental responsibility applies.  Thus, the door to equal time is opened as the first consideration.  However, whilst the legislation may promote shared care as a primary ideal, and also seeks to move parents from litigation to cooperation, those aspirations ought be tempered by the reality of a relationship breakdown. In a decision handed down well before the shared care regime, the Court held that the viability of shared care ought be considered against the following practical criteria:

• The parties’ capacity to communicate on matters relevant to the child’s welfare.
• The physical proximity of the two households.
• Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
• The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?  
• Whether the parties agree or disagree on matters relevant to the child’s day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
• Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
• Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra curricular activities.
• Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
• Whether or not the parties respect the other party as a parent.
• The child’s wishes and the factors that influence those wishes.
• Where siblings live.   

Shared care may well be a viable option for those who can work out their parenting arrangements without filing in court, but that is not to say that that cohort all agree upon shared care.  That being said, it is worth observing that the ability to work out parenting arrangements without court order may suggest a level of cooperation that would mean that if shared care is the agreed outcome, it stands a chance to work — if the parents can negotiate this outcome then, when a child leaves certain items at one house, chances are the parents will work together to solve the problem.  But, if parents are unable to work together to make that happen for themselves, and thereby need a court to adjudicate amidst the acrimony, mistrust and bitterness that encompasses many parenting proceedings, how can shared care actually work for the benefit of the children?

Is sharing caring?

As reported by Professor Smyth,10  in 1997, the ABS informs that a mere 2-3% of post-separation children lived in shared care.  In 2003, when the then Prime Minister put it on the agenda, that percentage of children had doubled to 6%.  Three years after the Act was reformed, the ABS again informs that in 2008, only 7% of children were cared for by sharing. 11  However, Child Support Agency data suggests that by June 2008, 17% of new cases involved shared care. 12  Differences in methodology and data analysis between the ABS and CSA means that the statistics are not directly comparable, yet, both indicate that shared care is on the rise.   

Professor Smyth observes that the most striking thing about the debate over shared care is the focus on numbers – the “mathematizining” of parenting time.  Consequently, by reducing parenting time to a sequence of numbers (eg, 9/5, 8/6, 7/7, 2/2/5/5, 2/5/2/5, 3/4/4/3) focus is squarely upon the quantity of time as opposed to the quality of time.  That quality of time is pivotal to good post-separation outcomes for children is a proposition not only of commonsense but also of one borne out in research.13   However, whilst the reforms were designed to improve a child’s meaningful and safe relationships with both parents, they have also had the consequence of promoting a preoccupation with numbers.  Counting days/nights and even hours seems to feature more (at least in matters that enter the legal fray) than accumulating positive parent-child experiences.

The research literature indicates that the allocation of parenting time of itself will not lead to positive post-separation experiences for children.  Instead, a child’s best interests are strongly connected to post-separation parenting that feature cooperation, positive parenting capacities and skills, as well as practical resources such as adequate housing and income. 14  Thus, while the court will impose a time arrangement upon warring parents, it cannot obligate or order them to stand possessed of the very essential factors referred to above that will better serve their children’s best interests.

Perhaps what is presently most telling about the viability of shared care is whether it ‘lasts the distance’ once agreed upon or imposed by court order.  Research above indicates that when parenting arrangements are longitudinally studied, shared care is significantly more fluid than mother-residence or father-residence arrangements.  Indeed, research shows that over a three year period only 50% of children who commenced with shared care were still in shared care. 15  Conversely, mother-residence households and father-residence household were relatively stable, with mother-residence households being not only the most common, but also the arrangement that shared care arrangements tended to gravitate towards. 16  

What of the children?  The research referred to herein has been called 17 “first generational” mapping of experiences using small data sets.  Of course, caution need be applied to interpreting these studies.  Second generation research, using large general population data and with a specific focus on shared-care arising out of the 2006 reforms, is underway.   This “second generational” 18 research will also hopefully explore the outcomes for children depending on the kind of shared care environment they find themselves in: (1) where their parents agree on shared care, where conflict is low and cooperation high; and (2) where shared care is imposed upon the parties who are enmeshed in high conflict and cannot cooperate.    

What we presently know is that fathers and children will benefit from a shared care arrangement when this occurred in an environment of low acrimony and cooperation with the child’s other parent.19    

Unfortunately for children whose parents are in court, both practitioners’ experiences and research indicate that high parental conflict is a common feature.  For these children, the research indicates that shared care in an environment of mistrust, acrimony and parental conflict will expose children to the very real likelihood of poor mental health outcomes as just one of the consequences of their parent’s separation. 21

The law is the law, and we obviously have no choice but to apply it.  Equally, social science is reactive and moves slowly. 23  Yet, given preliminary research indicates we could be imposing psychological strain upon a generation of children, the social scientists and their research projects and results harnessing greater statistical power and scope will become available not a day too soon for this group of children. 

Jacoba Brasch

Footnotes

1. At the recent Family Law Residential, August 2008, considerable attention was given to the impact of the recent changes to parenting arrangements under the Family Law Act and their implications.  Papers included Beth Guy from the Australian Childhood Foundation and Paul Lodge of the Family Court.  For this article, particular reference is had to Professor Bruce Smyth’s paper and lecture:  “When what we know is based on 201 families: a 5 year retrospective of post-separation shared care research in Australian”, 15 August 2008, wherein he reminded delegates of the context for reform, but more importantly, the impact in children and families of implementation thus far.  This paper provides an overview of the Professor’s research and draws upon the themes he developed.    This and other papers may become available at www.qls.com.au. 
2. The Hon. Prime Minister, J Howard, Hansard, House of Representatives Debates at 17278, Tuesday, 24 June 2003.   “See also discussion in Smyth at 2”
3. Smyth, supra, at 2.
4. s61DA Family Law Act 1975
5. s65DAA Family Law Act 1975. See Goode v Goode [2006] FamCA 1346 (15 December 2006) at [65], wherein the Full Court helpfully summarised the pathways.
6. See also Smyth , supra, at 6
7. The Hon. Attorney-General, P Ruddock, Hansard, Second Reading Family Law Amendment (Shared Parental Responsibility) Bill 2005, at 11, 8 December, 2005.
8. See also Smyth , supra, at 6
9. T & N [2001] FMCAfam 222 at [93]
10. I am indebted to Prof Smyth for sharing his data sets at the Residential, in his paper and presentation.   
11. ABS (2008) Family Characteristics and Family Transitions 2006-07, Australia, Cat No. 4442.0, ABS, Canberra, in Smyth, supra, at 5.    
12. Smyth, lecture to Residential. 
13. Amato and Gilbreth (1999); Lamb (2007); Pryor & Rodgers (2001), in Smyth, supra, at 18.
14. Smyth, supra, at 7-9 and research cited therein
15. Smyth, Weston, Maloney, Richardson and Temple (2008) in Smyth, supra, at 14. 
16. Smyth, supra, at 14
17. see in particular Smyth, supra, at 21 and his observations about the research to date and what is needed in the future.
18. see in particular Smyth, supra, at 21 and his observations about the research to date and what is needed in the future.
19. McIntosh, J & R Chisholm, R (2008), “Cautionary Notes on the shared car eof children in conflicted parental separation”, Journal of Family Studies, 14(1) AIFS, Melbourne, at 41
20. “One father’s story of a 50-50 arrangement”, The Age, June 27 2003, quoting former Family Court judge the Hon John Fogarty
21. McIntosh & Chisholm, supra, at 41
22. McIntosh & Chisholm, p42
23. Smyth, supra, at 20.

It is notable that this is a different requirement to the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) and Motor Accidents Insurance Act 1994 (MAIA), which provide that documentation may simply be withheld on reasonable suspicion of fraud, without an order of the Court.

Absent a Court order, the withholding of information is an offence against the Act with a civil penalty (s31), and a withheld document cannot be used by the party in subsequent Court proceedings unless the Court orders otherwise (s32).

The combined effect of these sections is that a Court order must be obtained relieving a party of the obligation of disclosure, before the compulsory conference.

The preferable procedure for obtaining such an order is to contact the Associate to the Judge sitting in the applications list on the day it is desired to bring the application, asking for the application to be listed without appearing on the Court list.

An application and affidavit are then filed by leave on the day the application is sought, along with a draft Order making appropriate provision for the application material to be sealed, to not be listed on the e-Courts index or any other searchable index, and to seal any any Order made in the proceedings. In this manner, no search of the Registry ought reveal the existence of the application or the Order.

Leave ought to be sought pursuant to both section 30(3) of PIPA and UCPR Rules 224 and 393(2), so that another application is not necessary once proceedings are instituted.

Relevant principles on the application

Pursuant to section 28 of the Act, the Applicant has a duty to disclose documents to the Applicant, including reports about the claimant’s medical condition, personal injury and any consequent disabilities.

Section 30 of the Act provides that documents which are subject to legal professional privilege are not required to be disclosed, but s 30(2) provides that “investigative reports, medical reports and reports relevant to the claimant’s rehabilitation” must be disclosed despite that privilege.

Sections 30(3) and (4) provide as follows:

(3) If a respondent has reasonable grounds to suspect a claimant of fraud, the respondent may apply, ex parte, to the court for approval to withhold from disclosure under division 1 or this division information or documentary material, including a class of documents, that —

(4) If the court gives approval on application under subsection (3), the respondent may withhold from disclosure the information or documentary material in accordance with the approval.

In Re Hunter1, it was held that it is sufficient to invoke the discretion in section 30 if either 30(3)(a) or (b) are established. It is not necessary to prove that disclosure of the material would alert the claimant to the suspicion and help further the fraud.

The phrase “reasonable suspicion of fraud” was discussed in Young v Nominal Defendant2. The circumstances of that case involved a single vehicle accident, in which the plaintiff alleged that her vehicle had been run off the road by another vehicle. At first instance, Samios DCJ had refused to relieve the applicant of the duty of disclosure of certain material, including an ambulance report, containing references to a blown tyre, a single vehicle accident, and a level of intoxication of the plaintiff. It was said that this gave rise to a reasonable suspicion of fraud on the basis that the accident did not involve another vehicle at all. Samios DCJ noted a statement of an independent witness at the scene of the accident. That witness asked the plaintiff what had happened. She stated “another car”. On that basis, it was found at first instance that the applicant did not have a reasonable suspicion of fraud.

Leave to appeal was refused, the Court of Appeal finding that, on the available evidence, the references to other potential causes of the accident were either disproved or capable of other inferences. On that basis, it was found that in the circumstances of this case, there was no clear conflict of evidence between that to be relied upon by the applicant (appellant) and that of the plaintiff that another vehicle was involved.

In the absence of a conflict in the evidence, it was found that there could be no reasonable suspicion of fraud.

The circumstances in Re Hunter were somewhat similar. The claimant asserted that he fell because part of a stair tread fell away. The respondent (the applicant before Justice McMurdo) swore a statutory declaration to the effect that he installed the stair tread and the part that the claimant asserted fell away was never there. The respondent asserted on the basis of his statutory declaration, he had a reasonable suspicion that the claim was fraudulent.

Justice McMurdo did not decide whether there was a reasonable suspicion of fraud. He decided that the respondent’s basis for defending the claim would have to be disclosed to the claimant at the compulsory conference in order to comply with s 38(6), and if the claim were not then resolved, pleaded in the Defence. He held that it was in the interests of advancing the objects of the PIPA that the information be disclosed sooner rather than later.

His Honour therefore ordered the disclosure of the statutory declaration.

Young was referred to in Re an Application Pursuant to s 73 of the Civil Law (Wrongs) Act 20023. Concerning matters of procedure, two aspects of that case are interesting. 

Firstly, the reasons for judgment were published but without reference to the claimant’s name on the basis of a non-publication order.This is a useful exercise to achieve the dual purpose of providing reasons to guide the exercise of the discretion without thwarting the objecting of not alerting the claimant to the suspicion of fraud.

Secondly, His Honour Justice Connolly noted that the evidence was at an early state such that further investigations would either confirm the fraud or satisfy the insurer that the claim was genuine. He therefore made the order on an interim basis and relisted the application to be heard in 3 months time.

His Honour referred to the decision in Young, as support for his view that a mere divergence in instructions between a claimant and those instructing an insurer will not amount to a reasonable suspicion of fraud. He considered that the test for reasonable suspicion was as described in George v Rockett4:

“Suspicion, as Lord Devlin said in Hussien v Chong Food Kam [1970] AC 942 at 948, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.” 

The test applicable to section 30(3) may therefore be seen as comparable to that applicable to UCPR 224 and 393.

UCPR 221 provides that a party must disclose all documents which are in his possession and directly relevant to an issue in the pleadings, subject to certain exceptions in UCPR 212. Further, pursuant to UCPR 393, all video evidence must be disclosed in advance of a trial.

Rule 224 provides as follows:

224 (1) The court may order a party be relieved, or relieved to a specified extent, of the duty of disclosure.

(2) Without limiting subrule (1), the court may, in deciding whether to make the order, have regard to the following —

(a) the likely time, cost and inconvenience involved in disclosing the documents or classes of documents compared with the amount involved in the proceeding;

(b) the relative importance of the question to which the documents or classes of documents relate;

(c) the probably effect on the outcome of the proceeding of disclosing or not disclosing the documents or classes of documents;

(d) other relevant considerations.

Rule 393 relevantly provides as follows:

(2) Unless the court orders otherwise, at least 7 days before the trial or hearing starts, the party must give all other parties an opportunity to … inspect anything mentioned in subrule(1) the party intends to tender…

(3) An application for an order under subrule (2) may be made without notice to another party and the court may direct that the application and any supporting evidence be placed in a sealed container, for example, an envelope;

(4) The container may be opened only if the court orders it to be opened.

The discretion conferred by UCPR 224 and 393 has been considered judicially. 

In Martin v Kennedy5 His Honour Justice Thomas noted “The detection of fraud and the exposure of exaggeration are important matters in the administration of this area of justice and I should be reluctant to conclude that evidence of this nature requires to be disclosed in advance.”

In Stephan v NRMA6, the District Court recognised that the power conferred by the Rules to order non-disclosure of certain material may be used in personal injuries matters to prevent tailoring of evidence.

The joint decision of the Court of Appeal in Coster v Bathgate7 considered the exercise of the discretion.

On an application to withhold surveillance material, it was found by the Judge in that case at first instance:

• The activities shown on surveillance were “not entirely consistent” 8 with the plaintiff’s asserted incapacity but did not demonstrate “significant exaggeration” 9.
• The plaintiff had already disclosed that he worked as a courier, which was the activity revealed on the surveillance footage.

The judgment of the Court of Appeal made the following observations about exercise of the discretion conferred by Rules 224 and 393:

“[20] The discretions to be exercised under UCPR r 224 and r 393 are unfettered except by the constraint that they be exercised judicially in the particular circumstances of each case. There are, however, a number of factors, some of which are competing, which will normally be thought relevant to the exercise of the discretion in cases such as this.

[21] On the one hand, there is a trend towards ensuring that interlocutory processes, and, ultimately, the trial of an action, take place against a background of full and timely disclosure by the parties of their respective cases and even of the evidence to be relied on in support of those cases. That trend is evidenced, inter alia, by: the disclosure requirements of UCPR r 212(2) and r 393; the requirements in UCPR r 547 concerning the provision of statements of loss and damage and by the increasingly more common requirement that evidence in chief be contained in statements or affidavits served before the trial. Conducting litigation in this way facilitates early settlements, promotes greater efficiencies in the conduct of hearings and assists in securing more just determinations. This is consistent with UCPR r 5 which provides that the purpose of the UCPR is to facilitation the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

[22] Those with experience of personal injuries trials will be aware that a great deal of time can be spent in dealing with the consequences of undisclosed video film of a plaintiff’s activities.  The tape has to be played for viewing by the plaintiff in court. Often it, or a copy of it, will need to be played for the benefit of the plaintiff’s medical experts. At times the defendant’s legal representatives will not have had the foresight to obtain a report based on the video film from the defendant’s own medical experts. Apart from the time consumed by these matters, arrangements made with medical practitioners for their attendance can be superseded and the making of alternative arrangements can prove troublesome. Such delays and inconveniences can, of course, be reduced significantly if appropriate precautions are taken.

A brief history

As a general proposition, a purported assignment of a cause of action that savours of maintenance will be void. A bare right of litigation, for example a right to recover damages in tort, has traditionally been considered not to be assignable either at law or in equity.2 The cases have sometimes drawn a distinction between a so-called “personal right to litigate” as against an “impersonal right” in the nature of a proprietary right.3 However, the distinction between so-called “personal rights” and “impersonal rights” is often elusive.

Historically, the courts have been reluctant to condone assignments of causes of action generally. Parker J in Glegg v. Bromley4 observed:

“Equity on the grounds of public policy did not give validity to the assignment of what is in the cases referred to as a bare right of action, and this was so whether the bare rights were legal or equitable. I have looked at a good many authorities on that point, and I am satisfied that the real reason why equity did not allow the assignment of a bare right of action, whether legal or equitable, was on the grounds that it savoured of or was likely to lead to maintenance.”

The High Court considered the assignability of tortious claims in Poulton v. The Commonwealth.5 There, Mr Poulton commenced proceedings against the Commonwealth of Australia as constituted by the Australian Wool Realisation Commission. Mr Poulton was a licensed dealer in wool, hides and skins and received wool from certain growers having executed an instrument by which the growers agreed that the wool was submitted to Mr Poulton for appraisement. By the instrument, the proceeds from the wool were to be kept by Mr Poulton in satisfaction of the amount which Mr Poulton paid to the growers and for Mr Poulton’s services and expenses. Mr Poulton brought an action in the High Court against the Commonwealth, claiming that he was entitled, by virtue of the instrument, to all amounts payable by the Commonwealth under the relevant statutory provisions.

The trial was heard by Fullagar J in the High Court. His Honour held that if there had been a tortious taking of the wool by the Commonwealth, the growers’ rights of action in tort against the Commonwealth could not be assigned at law or in equity to Mr Poulton. However, his Honour’s conclusions in that regard were obiter, given that his Honour found that the relevant regulations were valid and thus there had been no tort committed.

An appeal to the Full Court constituted by Williams, Webb and Kitto JJ was dismissed. At page 602, the Full Court said:

“. . . If it were true that the Commonwealth were guilty of conversion of the [growers’] wool, it would be the [growers] alone who could elect to waive the tort and take the proceeds of sale. This would be so, both because there was not in fact any purported assignment to the plaintiff of the right of action for the tort, and because, according to well established principle, the right was incapable of assignment either at law or in equity . . . ”.

Modern developments

In 1981, the House of Lords in Trendtex Trading Corporation v. Credit Suisse6 liberalised the hitherto relatively strict rules against assignment of causes of action. Roskill LJ delivered the leading judgment. His Honour re-stated that it is a fundamental principle of English law that one cannot assign a bare right to litigate. However, if the assignment is of a property right or interest, or if the assignee has a genuine commercial interest in taking the assignment and in enforcing it for his or her own benefit, there is no reason why the agreement should be struck down as an assignment of a bare cause of action, or as savouring of maintenance.7

Trendtex was a decision relating to the assignment of a contractual cause of action. In Giles v. Thompson,8 the House of Lords extended the application of the Trendtex principle to tortious causes of action. The House of Lords determined that the question was whether there had been “wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatever and where the assistance he renders to one or the other party is without justification or excuse.”9

Australian cases post-Trendtex

There is a division in the cases that have been decided in Australia since the House of Lords decision in Trendtex as to whether the Trendtex approach is to be preferred over the stricter approach set out in the dicta of the four judges of the High Court in Poulton. Decisions that support the adoption of the Trendtex principle in Australia are largely decisions in the State Supreme Courts.10 In contrast, a number of single judges of the Federal Court have declined to apply the Trendtex approach and, instead, have expressed the view that the dicta in Poulton ought to be followed until the High Court determines otherwise,11 although two recent Federal Court decisions suggest that Court may also be moving towards adoption of the Trendtex approach.12

The Federal Court decisions have generally reflected the view that it is not open to courts of first instance to depart from the considered statements of the High Court in Poulton and that, in consequence, bare rights of action in tort should be regarded as incapable of assignment, whether or not the tort is of a personal kind. This view is reflected in the observations of the authors of Equity: Doctrines and Remedies (4th Ed, 2002) at [6-480] that “. . . it is not easy for courts below the High Court legitimately to depart from the considered dicta of three [sic] High Court justices”. In fact, the dicta in Poulton are those of four High Court justices when one includes Fullagar J, who delivered the first instance decision.

The approach of the courts has been complicated somewhat by the decision of the High Court in Campbells Cash and Carry Pty Ltd v. Fostif Pty Ltd.13 Although there were no assignments of causes of action involved in that decision, the court adopted a generally less restrictive view towards the risks that may otherwise be apparent in the maintenance of causes of action. There, a number of proceedings were brought before the New South Wales Supreme Court by tobacco retailers. Each of the proceedings was representative proceedings, seeking compensation in respect of tobacco licensing fees that had been paid by the retailers. The tobacco licensing fees had subsequently been invalidated by the High Court as unconstitutional excises.  For these purposes, the relevant issue was whether the actions constituted an abuse of process and ought to have been stayed. This question arose because of the litigation funding arrangements that had been entered into in respect of the conduct of each of the proceedings. In essence, a company called Firmstones had sought to encourage tobacco retailers to claim a refund of the tobacco licence fees from wholesalers. Firmstones wrote to the tobacco retailers asking for authority to act on the retailers’ behalf in recovering the amounts. Firmstones was to take a “success fee” of 33 per cent of any money received by the retailer from the wholesalers. Firmstones retained a solicitor to act on behalf of the retailers. Thus, although Firmstones did not receive an assignment of the retailers’ causes of action, it was in fact conducting the litigation on behalf of the retailers and with a view to receiving 33 per cent of the proceeds of the litigation.

The High Court considered in some detail the history of maintenance and champerty. At para [73], Gummow, Hayne and Crennan JJ said:

“Assignment of a chose in action ‘made with the improper purpose of stirring up litigation’ would raise questions of maintenance and champerty. But the mere assignment of the proceeds of litigation would not. If the assignment stipulated that the assignee should participate in the litigation, the assignment was lawful only ‘if he have some legal interest (independent of that acquired by the assignment itself) in the property in dispute; but that where his interest is generated only by the assignment itself, such a stipulation would be improper’”.14

Commencing at para [79] of the joint judgment, the Court referred in detail to the decision in Trendtex, without apparent approval or disapproval of the approach of the House of Lords. Gleeson CJ concurred in the reasons of Gummow, Hayne and Crennan JJ on this public policy point. Their Honours concluded that the fact that Firmstones had sought out retailers with claims and had control of the litigation and that they hoped to profit from the litigation was not sufficient to warrant condemnation of the arrangements as being contrary to public policy or as leading to any abuse of process.15 Callinan and Heydon JJ dissented on this point and found that the arrangements did constitute an abuse of process.

The Full Court of the Federal Court in Deloitte Touche Tohmatsu v. J P Morgan Portfolio Services Ltd,16 found the issue, like that in Fostif, was whether a litigation funding agreement constituted an abuse of process. Once again, there was no assignment of any cause of action to the litigation funder. Tamberlin and Jacobson JJ (Rares J dissenting), held that it was not an abuse of process and that the litigation funder did have a genuine commercial interest in the enforcement of the claim. Both Fostif and Trendtex were cited in support. Rares J noted that it was common ground between the parties that the causes of action in question “were not capable of assignment to [the litigation funder]”.17

Of the exceptions to the more restrictive approach of the Federal Court to this question are two recent cases. The first was that of Finkelstein J in TS&B Retail Systems Pty Ltd v 3 Fold Resources Pty Ltd & Ors.18  In obiter, his Honour said:

“In Australia there is a debate whether the Trendtex principle should be adopted. The cases for and against (the latter all being decisions of the Federal Court) are collected in Rickard Constructions Pty Ltd v. Rickard Hails Moretti Pty Ltd . . .  It may be that the debate is now over for the High Court in Campbells Cash and Carry Pty Ltd v. Fostif Pty Ltd . . .  seems to have approved Trendtex . . .  In any event, my own view is that the logic of Lord Roskill’s view [in Trendtex] is inescapable. That is especially so when, as here, the cause of action is connected with, or relates to, rights or interests owned, or that will fall into the ownership, of the assignee”.

The second recent case in the Federal Court is Tosich v Tasman Investment Management Ltd19 where Gyles J, having noted the divergence in the cases as to the application of Trendtex, expressed his view that the approach of the High Court in Fostif supported the reasoning of Finkelstein J in TS&B Retail. 

However, Heerey J as recently as October 2007 expressed a contrary view that the decision of the High Court in Poulton retains its authority, and that Trendtex is not good law in Australia.20 Although the decision of Heerey J was appealed, the appeal was determined without reference to this point.21

Assignment of contractual causes of action

A debt or any liquidated claim under a contract is “property” and therefore able to be assigned. It does not matter that the debt is overdue for payment.22 In addition, the benefit of a contract can be assigned before it is breached.23 A cause of action which is annexed to a right of property may also be assigned.24

The issue that then arises is as to whether a right to sue for unliquidated damages for breach of contract is capable of assignment. Meagher, Gummow and Lehane give a somewhat abbreviated answer in the negative,25 and refer to cases such as Torkington v. Magee26 and County Hotel Co v. London and Northwestern Railways.27 Likewise, Cheshire & Fifoot’s Law of Contract suggests that a bare right to litigate for a past breach of contract is generally not assignable,28 although there is a suggestion that there may be exceptions to this proposition as set out in Trendtex.

If the Trendtex principle is applied, then bare rights to litigate for unliquidated damages for breach of contract may be assignable provided either:

(a)    they are annexed to a right of property;  or

Poulton dealt with the assignability of tortious causes of action. There is no High Court authority directly on the issue as to whether contractual causes of action may be assigned. The position so far as contractual causes of action were concerned was summarised by McDougall J in Rickard Constructions v. Rickard Hails Moretti Pty Ltd,29 in the following terms:

Accordingly, his Honour found that, in principle, an assignment of a cause of action in contract to recover unliquidated damages should be accepted where the assignee has a sufficient interest to support the assignment.

Assignment of causes of action in tort

A right to sue in tort is never itself property: it is a bare right of action.30 The position of the assignability of causes of action in tort (at least non-personal causes of action) remains somewhat in a state of flux. Notwithstanding the High Court’s liberalisation of the law concerning maintenance and champerty in Fostif, the High Court has not expressly overruled the earlier strong dicta of four judges of the Court in Poulton. However, there is a sense that the march of the law is generally heading away from the strict approach exemplified by Poulton and towards a more general acceptance of the approach adopted by the House of Lords in Trendtex. 

Nevertheless, the position of the majority of the Federal Court cases is exemplified generally by the approach Rares J in Boston Commercial Services Pty Ltd v. G E Capital Finance Australasia Pty Ltd 31 where it was said:

“New Boston argued that I should not follow the decision of the High Court in Poulton . . . which denied that a right of action in tort was assignable at all. It was suggested that this was the old view of the law. New Boston argued that I should follow what was said by Debelle J in South Australian Management Corp v. Sheahan . . . namely that the decision could be explained as relating to an assignment of a claim in tort where the assignee had no genuine commercial interest. However, in Garcia v. National Australia Bank Ltd (1998) 194 CLR 395 . . . at [17] Gaudron, McHugh, Gummow and Hayne JJ made it clear that the doctrine of precedent in Australia binds me to follow the decisions of the High Court unless and until that court decides that the time is right for a change in the law. I propose to do that. There is no basis to read down the considered judgment of Williams, Webb and Kitto JJ in Poulton . . . that a right of action in tort is incapable of assignment at law or in equity. I am of opinion that Debelle J was wrong not to have applied this binding authority”.

This approach seems to have been generally reflected in the Federal Court decisions (with the exception of the decisions of Finkelstein J in T S & B Retail Systems Pty Ltd 32 and Gyles J in Tosich v Tasman Investment Management Ltd33). However, the almost universal approach of the State Supreme Courts has been to apply the Trendtex doctrine and to conclude that a cause of action in tort may be assigned (at least not a personal cause of action) provided that the assignee has the necessary interest in the litigation.34

There remains some question as to whether causes of action for personal torts (such as damages for personal injury, defamation or false imprisonment) may ever be capable of being assigned.35

Assignment of causes of action in equity

A bare right to sue in equity has traditionally been considered not able to be assigned.36 However, one must question the appropriateness of maintaining a distinction between equitable causes of action and contractual or tortious claims. Indeed, it may be that the courts are moving towards a position that even equitable causes of action may be assigned provided that the assignee has the necessary interest in the outcome of the litigation.

Nevertheless, this matter has not been the subject of much judicial consideration in recent times. 

Assignability of statutory causes of action

Whether a statutory cause of action is assignable will turn on the terms of the statute. To take but one example, there has been frequent litigation concerning the assignability of causes of action under sections 82 or 87 of the Trade Practices Act 1974. It is well established that causes of action for recovery of damages under either of those sections are not capable of assignment.37 A cause of action under the corresponding provisions of the Fair Trading Act of the States is also not able to be assigned.38

The necessary interest to support an assignment

It is clear that, even if Trendtex is good law in Australia, any assignee must have more than a mere personal interest in profiting from the proceedings. Cohen J in Monk v. Australia & New Zealand Banking Group Ltd 39 said:

“In my opinion [the interest claimed by the plaintiff] is not a genuine commercial interest in the way that the phrase has been used in the judgments. Examples may be given from the facts in the various cases concerned. For instance it was held that there was such an interest where the assignee was already a substantial creditor of the assignor with a right to enforce the debt (Trendtex, re Timothy’s) or where the assignee was the sole shareholder who was a guarantor of the overdraft of the assignor (re Daley) or where the assignee was a debenture holder with an interest in protecting the value of its security (First City Corporation)”.

Lindgren J in National Mutual Property Services (Australia) Pty Ltd v. Citibank Savings Limited 40 said:

“. . . The genuine commercial interest referred to in Trendtex is not a nebulous notion of the general commercial advantage of the assignee but something more specific and limited. In particular, it does not embrace an interest arising from an arrangement voluntarily entered into by the assignee of which the impugned assignment is an essential part, like the arrangement in the present case. Rather, the expression refers to a commercial interest which exists already or by reason of other matters, and which receives ancillary support from the assignment”.

These reasons were approved by Heerey J in Salfinger v. Nuigini Mining (Australia)Pty Ltd.41

Mere personal interest of the assignee will therefore be insufficient. General commercial advantage will also be an insufficient ground to found an assignment. The assignee must have some commercial interest which the assignment may in some way protect.

Conclusion

The issue of the assignability of causes of action is an area of the law that has been in a state of some flux for many years. Notwithstanding this, it is somewhat surprising that there is little direct High Court or intermediate Appellate Court authority on the issues that have been explored in this paper.

There has been a clear divergence between the general approach of the Federal Court (preferring to adopt the approach in Poulton and eschewing the Trendtex approach) and that of the State Supreme Courts which have instead embraced the Trendtex position. There is a suggestion in some of the most recent Federal Court cases that that jurisdiction may be moving towards embracing Trendtex as good law, although this is certainly not a uniform phenomenon.

The effect of the divergence is that particular care should be taken when determining which court to proceed in if reliance is to be placed upon an assignment of causes of action, whether in contract, tort, or equitable causes of action. The Federal Court has shown a much more marked reluctance to uphold assignments of causes of action generally.

The inconsistencies between the various single court decisions will ultimately have to be resolved by a decision of the High Court. Given the decision in Fostif, where a rather more liberal view of the law of maintenance and champerty was expressed in the majority decision, one might expect that the Trendtex approach will ultimately prevail. However, until the High Court has given that pronouncement, practitioners should be alive to the differing approaches by the courts in this complex area of the law.

Matthew Brady

Footnotes

1. The writer acknowledges the assistance obtained from the research of Mr G Gibson QC and Mr D O’Brien of counsel in the preparation of this paper – however all errors are the writer’s alone.
2. See, Cheshire & Fifoot’s Law of Contract, 9th ed, 2008, para [8.7]. 
3. See, T S & B Retail Systems Pty Ltd v. 3 Fold Resources Pty Ltd & Ors (2007) 158 FCR 444 at 465. 
4. [1912] 2 KB 474 at 489-490.
5. [1953] 89 CLR 540. 
6. [1982] AC 679. 
7. At 696 – 697; 703. 
8. [1994] 1 AC 142.
9. At p 164 per Mustill LJ, with whom the other members of the House agreed. 
10. See, Re Timothy’s Pty Ltd and The Companies Act [1981] 2 NSWLR 706; Monk v. Australia & New Zealand Banking Group Ltd (1994) 34 NSWLR 148; South Australian Management Corporation v. Shehan (1995) 16 ACSR 45 (Debelle J); Beatty v. Brashs Pty Ltd  [1998] 2 VR 201 (Smith J);  Singleton v. Freehill Hollingdale & Page  [2000] SASC 278 (Olsson J); Vangale Pty Ltd (In Liquidation) v. Kumagai Gumi Co Ltd  [2002] QSC 137 (Mullins J); Rickard Constructions Pty Ltd v. Rickard Hails Moretti Pty Ltd (2005) 220 ALR 267 (McDougall J); Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd [2007] SASC 322 (Withers J). In New Zealand see First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 (Gault J). McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008] QSC 141 at [76] and Beech J in Corporate Systems Publishing v Lingard (No 4) [2008] WASC 21 at [53] — [58] noted the diverge in the authorities but did not express a preference.
11. See, Park  v. Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 (Davies J); All State Life Insurance Co v. Australia & New Zealand Banking Group Ltd (FCA, Beaumont J, No G381 of 1994, 7 November 1994, unreported, BC 9400129); National Mutual Property Services (Aust) Pty Ltd v. Citibank Savings Ltd (1995) 132 ALR 514 (Lindgren J); Chapman v. Luminis (No 4) (2001) 123 FCR 62 (von Doussa J); Deloitte Touche Tohmatsu v. Cridlands Pty Ltd  (2003) 134 FCR 474 (Selway J); Boston Commercial Services Pty Ltd v. G E Capital Finance Australasia Pty Ltd (2007) 236 ALR 720 (Rares J); Salfinger v. Nuigini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 (Heerey J).
12. See TS&B Retail Systems Pty Ltd v 3-Fold Resources (2007) 229 ALR; Tosich v Tasman Investment Management [2008] FCA 377
13. (2006) 229 CLR 386 
14. Footnotes omitted. 
15. See, [88]. 
16. (2007) 158 FCR 417.
17. At para [134]. 
18. [2007] FCA 151.
19. [2008] FCA 377 at [29]-[33].
20. Salfinger v. Nuigini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 at [119]. 
21. [2008] FCAFC 103
22. See Comfort v. Betts [1891] 1 QB 737; Fitzroy v. Cave (1905) 2 KB 364;  County Hotel and Wine Co v. London & Northwestern Railway Co [1918] 2 KB 251; Re Daley;  Ex parte: National Australia Bank Ltd (1992) 37 FCR 390 at 394-5.
23. Torkington v. Magee [1902] 2 KB 427.
24. Rickard Constructions v. Rickard Hails Moretti Pty Ltd (supra) at 281; Camdex International Ltd v. Bank of Zambia [1998] 2 QB 22; Re Kenneth Wright Distributors Pty Ltd (In Liquidation); W J Vine Pty Ltd v. Hall [1973] VR 161. 
25. See, para [6-480] at p 282. 
26. Supra. 
27. Supra. 
28. At para [8.7].
29. (Supra) at [54]. 
30. Prosser v. Edmonds (1835) 160 ER 196. 
31. (2007) 236 ALR 720 at [73]. 
32. Supra
33. Supra 
34. See Supreme Court cases referred to earlier.
35. See, Trendtex (supra), at 702; South Australian Management Corp v. Shehan (1995) 16 ACSR 45 at 57-58; Monk v. Australia & New Zealand Banking Group (1994) 34 NSWLR 148 at 151-153. 
36. Prosser v. Edmonds (1835) 160 ER 196;  Glegg v. Bromley [1912] 3 KB 474 at 489-490. 
37. See, Park v. Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467; Allstate Life Insurance Co v. Australia & New Zealand Banking Group Ltd [1994] FCA 814 at [18]; Pritchard v. Racecage Pty Ltd (1997) 72 FCR 203 at 218;  Chapman v. Luminis (No 4) (2001) 123 FCR 62 at [204] – [207];  Boston Commercial Services Pty Ltd v. G E Capital Finance Australasia Pty Ltd (supra) at [50] – [52]; Salfinger v. Nuigini Mining (Australia) Pty Ltd (No 3) (supra) at [110]. 
38. See, Chapman v. Luminis Pty Ltd (supra). 
39. Supra, at 153. 
40. Supra, at 540.
41. Supra, at [121] – [122]. 

 

Subsequently, and it seems in response to that decision, the Law Reform Commission produced a report “Damages in an Action for Wrongful Death”. In Chapter 9 Part 5 of that report the Commission expressed the view, inter alia, that in a claim on behalf of a child of the deceased for damages for wrongful death, any monetary benefits or domestic services the child has received, or may receive, from any person other than the deceased should be irrelevant to the assessment of the child’s damages.

The Commission recommended legislative changes which were subsequently adopted and resulted in amendments of the Supreme Court Act 1995.

The following provisions of the Supreme Court Act, 1995, as amended are of critical importance:

Section 23B Damages for child’s benefit in wrongful death proceeding

“(1) This section applies if —

(a) in a proceeding under this division, a court is assessing damages in relation to financial benefits lost by a child of the deceased person as a result of the deceased person’s death; and

(b) The deceased person predeceases another parent of the child (the surviving parent).

(2) …

(3) If there was a relationship between the deceased person and the surviving parent that ended before the deceased person’s death any damages assessed must not be reduced because the relationship ended before the death.

(4) In assessing damages, the court must not take into account any financial benefits that the child has received, or may receive, from any person other than the deceased person, including any financial benefits that the child has received, or may receive, as a result of —

(a) a new relationship that the surviving parent may enter into after the assessment; or

(b) a new relationship entered into by the surviving parent since the death of the deceased person.

(5) In this section —

 

The amendments appear to have fundamentally changed the approach to the assessment of damages in a claim for loss of dependency brought by the child or children of a deceased parent, in circumstances where the deceased and surviving parent had separated prior to the death and the surviving parent takes over the care of the offspring.

Prior to the amendments, children did not generally recover damages attributable to the substitution of the services of their deceased parent by their surviving parent.

In Nguyen v Nguyen (1990) 169 CLR 245 Dawson, Toohey and McHugh JJ in their joint judgment said at p 266:-

“Courts have been reluctant to conclude that when someone outside the immediate family voluntarily takes over the care of the household, especially the care of infant children, a deduction should be made from the assessment of damages due a plaintiff, and reluctant to recognize that the loss suffered by a plaintiff is thereby reduced. The reasoning behind this reluctance has taken a variety of forms. In Hay v Hughes [1975] QB 790, the grandmother of two children assumed their care upon the death of their mother, and the Court of Appeal held (at page 809) that the grandmother’s services should be ignored in calculating the loss suffered by the children on the basis that:-

“At the time of their mother’s death it was anyone’s guess what would happen to them and the defendant has not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did.”

….. In other cases, the reluctance has stemmed from the belief that the care provided by the relatives was not a consequence of the death of the deceased but flowed rather from an independent source, namely, the generosity and altruism of the relatives

….. The same attitude is reflected in a recent decision of the Court of Appeal in Spittle v Bunney [1988] 1 WLR 847 where Croom-Johnson LJ (at 853) attempted to identify its logical basis:

“In cases where an orphan has been taken in by a close relative there has been a general, though not universal, reluctance to say either that the orphan has suffered no loss or has acquired a benefit. The logical reason for saying ‘no loss’ is that no services can really replace the services of a mother”

 

 

In NSW Insurance Ministerial Corp v Willis (1995) 35 NSWLR 668 the Court of Appeal considered an unusual factual matter. The deceased, Mrs Pietsch, was the mother of three children. She and her former husband, Mr Pietsch, had two children. Mrs Pietsch and a Mr Willis had a child after her separation from Mr Pietsch. She and Mr Willis then separated thereafter. Mr Willis had no involvement with his child after Mrs Pietsch’s death. Mr Pietsch cared for his two children and Mrs Pietsch’s sister cared for Mr Willis’ child.

In his judgment Meagher J said at p 671;

“In order to evaluate this submission one must appreciate that the separation of Mrs Pietsch’s family after her death was, as his Honour found, entirely reasonable; and also in law foreseeable by the tortfeasor. It was also the direct result of the tortfeasor’s negligence.”

The point he was there considering was a submission by the appellant/defendant’s counsel that the trial judge had erred in allowing what he believed was duplication, in that the costs of both past and future services was allowed to Gelinda, in the household she was living in, and to Nicole and Shane in Mr Pietsch’s household. It is noteworthy that the level of past services to Gelinda was more than twice that allowed in total to Nicole and Shane. Meagher JA’s comments were in support of the view that both sets were reasonably required and were in fact supplied.

In respect of the issue which is here under consideration Meagher JA said:-

“The next submission is that the trial judge did not take sufficiently into account the duty of Mr Willis ….. to support his child. The sad fact is that both before and after the fatal accident he was disinclined to perform that duty. The cost of replacing the services which the mother provided during her lifetime without the help of a father cannot be diminished by the fact that the father owes a legal duty to which he is still unsympathetic.”

Sheller JA in his judgment said at p 674:

“At the date of Mrs Pietsch’s death her three children were living with her. After her death Mr Pietsch took back his two children, Nicole and Shane ……. Gelinda was not accepted by him but cared for by Mrs Pietsch’s sister ….. Kikham DCJ said that in light of the family circumstances there was a strong probability that this would follow if Mrs Pietsch died while her children were young. He described the case as exceptional. The children had gone to two different homes against a background of obvious and predictable bitterness.”

Sheller JA continued at p 675;

“The ‘injury’ resulting from such death to the claimant in respect of which damages are recoverable under the Act has been judicially confined to the pecuniary loss sustained. That is a net amount measured by calculating the loss of material benefits or of the reasonable prospect of material benefits which depended on the continuance of the life of the deceased and deducting therefrom the material gains, arising on the deceased’s death, to which the claimant had a reasonable expectation, whether as of right or otherwise; Public Trustee v Zoanetti (1945) 70 CLR 266 at 276-279 per Dixon J, as he then was.” (Emphasis added)

In considering the appellant’s argument that the trial judge did not sufficiently take into account the duty of Mr Willis to support his child, Sheller JA said at p 677;

In my view the basis for upholding the trial judge’s assessment of damages in respect of Gelinda was that the court found there was no reasonable expectation of material gain to Gelinda arising from her mother’s death, which could be said to offset the loss she suffered as a result of her mother’s inability to provide services herself because of her death.

That decision is entirely in accordance with the approach of the High Court in Nguyen as shown in the passages which I have set out.

The time for assessing the reasonable expectation of material gain is at the time of the death of the children’s parent. The fact that a person, who was not at the time of the deceased’s death reasonably expected to take over the care of a child, does later take on this duty does not mean that compensation for lost domestic services will cease to be calculated from this later time.

So much is evident from the High Court’s consideration of the decision of Hay v Hughes [1975] QB 790 in Nguyen, and is reiterated by Sheller JA in Willis in the passage I have highlighted.

In Hay, as seen in the passage repeated at paragraph 7 herein, the grandmother was not reasonably expected to take over the domestic care of her grandchildren at the time of their mother’s death. As such the grandmother’s services were to be ignored in calculating the loss suffered by her grandchildren, despite the fact that she did in fact subsequently undertake to care for them.

This view about a child not recovering significant damages if the surviving parent is expected to accept his or her responsibility to care for the child was endorsed by the Full Court of the Supreme Court of Western Australia in Houareau v Bouyer (1990) ATR 81-044. In that case Kennedy J, with whom Franklyn J agreed, said at p.68,104;

“Only in unusual cases, it appears, can a child recover a substantial award for his mother’s death if his father is still alive and able and willing to discharge his obligations to the child.”

A contrary view appears to have been adopted in Targett v Targett [1999] TASSC 87 where Wright J considered a case of children with different paternities where however a father figure was living as part of the family unit at the time of death. There, two children — Samantha and Ryan, were the children of the deceased. Her former husband, Darren Price, was not Samantha’s father but had treated her as his own daughter since her birth. Her biological father was unknown. He was the natural father of Ryan and was living in a de facto relationship with the deceased when she died.

From the time of Samantha’s birth until Samantha’s mother’s death, her mother was engaged full time in domestic duties including caring for her children. After her death, Darren Price has taken over the dual role of father and mother, had ceased employment and was engaged full time in caring for the children. The most relevant passages are paragraphs 12 and 13 of the judgment. Wright J said:-

In my view the decisions of NSW Insurance Ministerial Corp v Willis (supra) and Nguyen v Nguyen (supra) to which Wright J referred are not authority for the proposition he enunciates.

Much obviously depends on the particular evidence in a case, however as a general principle, where a child’s natural parent took over the care of a child following the death of another natural parent then, except in such factual circumstances as arose in Willis’ case, there was an offsetting gain such that substantial damages for loss of care would not be awarded.

The statutory amendments appear to have fundamentally changed that approach.

It is apparent from the definition of financial benefit that this phrase includes both monetary benefits and also domestic services of the sort considered by the court in Nguyen v. Nguyen (1990) (supra).

What is of critical importance is the provision of subsection (4) of 23B. These appear to have the result that in assessing damages the court must now not take into account any “financial benefits” (i.e. monetary benefits or benefits such as domestic services) that the child has received or may receive from any surviving parent.

What the court is now required to do is to assess the full value of lost services which would have been provided to the child, whether monetary or domestic services, by the deceased person, if that person had not died. There is now to be no deduction on account of services provided by the surviving parent such that even if the plaintiff is now better cared for by the surviving parent, the child will nevertheless receive damages on account of the loss of monetary benefits and domestic services which were likely to have been provided by the deceased if he or she had not died.

In assessing damages, courts have traditionally adopted a relatively conservative approach to the assessment of damages in actions for wrongful death. In Nguyen v. Nguyen (No 2) (1992) Qd.R.405 at 412, Derrington J, within Macrossan CJ and de Jersey J agreed said:

“In circumstances such as here an assessment based on commercial rates does not admit of a simple calculation of the number of hours which would be taken by an employed stranger in coming in daily from outside to perform the necessary tasks, and multiplying it by commercial rate appropriate to the performance of such services in the home of another, exclusive of the employee’s own affairs. The rate adopted must reflect the fact that in providing the substituted services, the first respondent is doing so in the comfort and convenience of his own home, and without wasting travelling time; that he can choose times which are convenient; that he may mix such services such as babysitting his children while enjoying his leisure; that such activities, which might be work to a stranger, may pleasure to him; and similar circumstances qualifying the adoption of a commercial rate for the services which he performs.”

Similarly, in Kuhlewein v. Fowke (2000) QSC 404 Mullins J said at paragraph 41;

“Compensation for the loss of gratuitously rendered domestic services by a wife and mother is not related to need, but to the loss of the services which would have been rendered. Damages are recoverable for this loss, whether or not they are replaced, provided that a pecuniary value can be placed upon them: Nguyen v Nguyen (1990) 169 CLR 245, 263. In that case the following comments were made in the joint judgment of Dawson, Toohey and McHugh JJ at 265-266:

‘But the damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff’s loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone…

In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household.’

Few Lord Campbell actions appear to find their way to judicial determination. Judges have, so far as I can determine, not yet been required to rule on the effect of the amendments to the Supreme Court Act to which I have referred. Nevertheless, there appears to have been a significant change to the assessment of damages as a result of statutory amendments, and discussion with other practitioners suggests to me there has been little appreciation of these changes within the profession.

David Reid

Hearsay is indebted to 18th Level Inns of Court for agreeing to be our Featured Chambers for this edition and, in particular, to Peter Ambrose SC for co-ordinating the wealth of material provided for the Issue.

The Chambers design for the 18th Level was described as “the tea house of the August moon” by Glenn Martin (as His Honour then was) during the Inns of Court’s opening celebrations. Harmony has been the key to life and work in these chambers.

In the 22 years since they were formed there have been major refurbishments, significant library acquisitions, computer networking, redeployment of personal assistant responsibilities and new colleagues joining the chambers. All this with fewer than 10 chamber meetings. Most of these were called by James Douglas wanting to persuade the group to switch to Macintosh or Michael Eliadis seeking approval to display acquisitions of modern art. Both were rejected. Members have included Kiefel J, RR Douglas J, PD McMurdo J, Federal Magistrate Michael Burnett (founding members) Wilson J, and James Douglas J.

Membership has always been a mixture of silks, senior and middle juniors and the quite junior. The areas of practice the current members enjoy are wide and include Commercial, Professional Negligence, General Insurance, Property, Family, Personal Injury, Criminal Law, Mining and Energy and Administrative Law. Current members are Peter Ambrose SC, David Boddice SC, Michael Eliadis, Michael Bland, Chris Fitzpartick, Matthew Brady, Jacoba Brasch, David Reid and Jessica McClymont. When in Brisbane, Tim North SC  prefers to stay and exercise his rights as a visiting member with the 18th Level Group.

Whilst the topic may seem somewhat esoteric, the practical application could potentially affect the rights of each and every Australian who engages in international travel.  The questions raised provide some insight into the serious ramifications of Australian police practice when dealing with international aspects of criminal activities. Australia has ratified several international human rights treaties that bring with them the obligation to ensure that no one is exposed to the real risk of the death penalty. However, cases like the “Bali Nine” have highlighted that Australia is not living up to that obligation. In light of the ratification of the human rights treaties, how has this situation come about? How can Australian police practice be brought back into line with international law?

Russell Thirgood, partner at McCullough Robertson and former Australian President of Amnesty International, Chair on the night, observed that, during 2007, there had been a minimum of 1,252 executions in 24 countries. In 51 countries 3,347 death sentences had been passed. Of those, however, 88 per cent were in only five countries, i.e. China, Iran, Saudi Arabia, Pakistan and the United States. It was then noted that 135 nations had abolished the death penalty which is retained by only 63 nations. The observation was made that recent times had seen a global trend towards abolition of the death penalty and, in 2007, the United Nations passed a resolution calling for a moratorium on the death penalty.

Mr Walton drew attention to increasing domestic opposition to the death penalty. He then addressed three main issues, namely, what Australia’s international obligations regarding the death penalty are, how Australia has assisted in criminal matters, overseas, particularly in the role of transnational policing, and areas where law reform might fix some obvious problems with the way the Australian Federal Police cooperate with foreign law enforcement agencies.

As to the first issue, Mr Walton paid particular attention to the “second optional protocol”1 a treaty which Australia has ratified, but not yet adopted. That treaty prohibits Australia from executing anyone and from reintroducing the death penalty — even in times of war.

Importantly, Mr. Walton noted that, in 1997, the United Nations Human Rights Committee found that the second optional protocol also obliges ratifying nations not to expose anyone to the real risk of execution for any offence. In 2003, the Committee went further and found that the parent treaty itself (the ICCPR) places the same obligation on ratifying countries that have abolished the death penalty. Australia is one of those countries. The overriding obligation of Australia therefore, could be extracted from the observation of the Committee in its 2003 decision of Judge v. Canada, namely, that:

With that background, Mr Walton then highlighted the three ways in which Australia assists foreign agencies in criminal matters: extradition, mutual legal assistance, and agency to agency assistance.

In relation to extradition, where a foreign country seeks the extradition of someone from Australia on a capital charge, the Minister is obliged to obtain a guarantee that the individual will not be executed if sentenced to death. However, in the Federal Court decision of McCrea, it was held, echoing Catch 22, that the guarantee need not be effective to prevent the execution of the individual. The Minister is only required to obtain such a guarantee. This is obviously unsatisfactory. It would allow the Minister to obtain a guarantee from the Attorney-General of the Unites States, as is current practice, when the guarantee should be obtained from the office with the constitutional power to grant clemency, for example from a State governor (for state offences) or the US President (for federal offences).

Mutual legal assistance applied where a foreign country requests the use of police powers to obtain evidence in admissible form, for example, by executing a search warrant or taking evidence from a witness. In relation to death penalty cases, the Minister may authorise assistance in “special circumstances”. Traditionally, there have been only two such circumstances: where a guarantee is provided that no one will be executed or where the evidence is exculpatory. However, in 1999, the then Justice Minister Amanda Vanstone decided that Australia would no longer necessarily require a death penalty guarantee. Instead, it was to be sufficient that a foreign country provide “cogent advice” that it is not expected that the death penalty will be carried out. This is, obviously, unsatisfactory and insufficient to meet Australia’s international obligations “not to expose anyone to the risk of the death penalty”. Also, mutual legal assistance laws only apply once someone has already been charged with a capital offence. Prior to charge, police may cooperate at their own discretion.

The third form of international cooperation is “police-to-police cooperation”. This is what occurred in the Bali Nine case. Police-to-police cooperation in death penalty situations is not governed by a statute — but by guidelines, which, in Mr Walton’s words “afford police a surprising amount of non-reviewable discretion” in the investigatory stage. Most people would be familiar with the Bali Nine case. There, Australian police gave information to their Indonesian counterparts which led to the death penalty being imposed on some of the young people involved, like Scott Rush. Such cooperation from Australian police goes on as a matter of course in countries like Vietnam, Malaysia and Indonesia. Police-to-police assistance is a species of what is called agency to agency assistance, which involves many government agencies cooperating transnationally, including ASIO and the ACCC.

In the investigatory stage, the guidelines allow the AFP to cooperate at their own discretion. Once capital charges have been laid, however, the AFP can cooperate only with the consent of the Attorney-General. The Minister who drew the guidelines, the then Justice Minister Duncan Kerr, however has criticised the use of the guidelines by the AFP. Mr. Kerr contends that the guidelines were never meant to be standard operating procedure but were only ever meant to be used “in extreme situations in which there is an imminent danger to human life”. Standard operating procedure was supposed to be:  do not cooperate in capital punishment investigations. Presently, the Joint Committee on Security and Intelligence is reviewing the whole question of police-to-police assistance and it remains to be seen whether the Committee will take up this recommendation.

Over the last 10 or 15 years, there has been an expansion of cooperation between the AFP and foreign law enforcement agencies which follows the broader trend of globalisation and the rise of more sophisticated forms of transnational organised crime. The “war on drugs”, the “war on terror” and the emergence of a new model of policing called “intelligence-led policing” are three extraordinary forces behind the expansion of the cooperation. The theory of intelligence-led policing is now the pre-eminent model for policing throughout the Western world. The model is information driven. Information (no matter how trivial) is gathered from as many sources as possible, stored electronically, and fed to trained intelligence officers who process the information and turn it into what is technically called police intelligence. According to the theory, the more information that can be amassed, the better the intelligence will be. Of course, police resources are limited and only so much information can be amassed on a limited budget. But, with cooperation and exchange of information with others, the store of information can be increased. Accordingly, the exchange of information across borders is seen to be an imperative (and not just a consequence) of transnational policing.

In relation to the “war on drugs”, Mr Walton noted the history that, in the mid 1990’s, Australia experienced an influx of heroin from Asia. As part of the US style war on drugs, the AFP introduced a new policy of “policing at the source”. Whereas, previously, police had waited for prohibited drugs to arrive in Australia before making arrests, now they would take the “war on drugs” to the source: to Vietnam, Indonesia and other countries in our region. A network of “AFP liaison officers” sprung up across the region, stationed in other countries, and responsible for liaising with foreign law enforcement agencies and for coordinating cooperation and assistance between Australian to local police. A few years later, however, the supply of heroin to Australia dried up. Mr Walton said the AFP took credit for this and the government responded by increasing the AFP’s budget. The AFP then used some of that money to expand the network of liaison officers. Accordingly, by the turn of the century, the engagement of Australian police overseas was firmly entrenched and the role of AFP liaison officer was then well and truly established.

Then, in October 2002, within days of the Bali bombings, Australian Ministers were in Jakarta, placing pressure on President Megawati to crack down on terrorism in Indonesia. A joint task force was set up between the INP and AFP: Operation Alliance. The very next day, President Megawati announced new anti-terror laws, including criminal offences attracting the death penalty. Not long, thereafter, Prime Minister John Howard was quoted in the Australian press as saying that Australia would not protest the execution of the (as yet unidentified) Bali bombers.

This raised the question in Canberra whether Australia could directly assist in the investigation and prosecution of a case that it knew would inevitably lead to the death penalty. The legal advice that the then Attorney-General, Daryl Williams obtained from the International Law section of the Attorney-General’s Department was that, when Australian agents operate overseas, they are not bound by Australia’s international human rights obligations. This advice appears to have ignored that case law mentioned at the beginning of this report that Australia’s obligation is to ensure that no one is exposed to the death penalty in any circumstance.

The real question that Mr Walton clearly put, was that when Australian officials act overseas, do Australia’s human rights obligations follow them or do those obligations cease when they leave the country? Unfortunately, it was noted that the international law on the question was unsettled, but what is clear is that, when Australian agents have control over foreign territory (such as in an Australian Embassy), they are bound by Australia’s international obligations. What may be less clear is the position when, for example, AFP officers assist Indonesian police in an Indonesian investigation in Indonesia. However Mr Walton was quick to point out that AFP Liaison officers usually operate from within an Australian Embassy — which is clearly Australian territory for the purposes of international law.

Special attention was drawn to the Human Rights Committee of the United Nations decision, in the case of Mr Lopez Burgos from Uruguay. In the 1970’s, Uruguay sent agents to Argentina to kidnap Mr Burgos, an exiled Trade Union leader, to take him back to Uruguay where he was detained and tortured. Mr Burgos made a complaint to the UN Human Rights Committee. Uruguay argued that the Committee could not hear the complaint because Article 2(1) of the ICCPR only obliges State parties “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the covenant”. The majority of the Committee found that it had jurisdiction to hear the complaint because:

Mr Walton argued that the advice on which Australia presently operates is clearly flawed. Following the advice to its logical conclusion, it authorises Australian police and security agents to assist their foreign counterparts in violating fundamental human rights as long as the following conditions apply: they do it overseas, their victims are adults, their victims are not Australian citizens and the foreign counterparts are the ones carrying out the human rights violation. Mr Walton said that these conditions were imposed upon the assistance that Australian police can give in death penalty situations by the then Justice Minister, Senator Chris Ellison, when he wrote to the AFP Commissioner Mick Keelty in February 2003.

However, in the case of the Bali Nine, even this extremely loose policy was breached because the people charged were Australian. The fact that the Government supported the AFP’s actions demonstrated, in Mr Walton’s opinion, that Australia’s death penalty policy has been eroded even further.

So, will the policy of the Rudd Government will be any different to the Howard Government in such matters. The tests ahead for the Rudd Government involve the imminent execution of the Bali bombers; whether the Government adopts the Second Optional Protocol into domestic law; whether the Joint Committee on Security and Intelligence reviews the practice of police-to-police assistance; and then whether the Government adopts any of its recommendations.

In conclusion, Mr Walton outlined areas he considered are ripe for law reform:

Those present at the presentation were then privileged to hear from Mr Lee Rush, the father of Scott Rush, one of the Bali Nine, or as Mr Rush prefers to refer to them “the Aussie Nine” because there were no Balinese persons charged.

Mr Rush spoke on behalf of himself and Christine Rush, Scott’s mother, in moving a vote of thanks to Mr Walton. He informed those present how their son, Scott, had been sentenced to life imprisonment for being a “drug mule” in February 2006 after Lee and Christine tried to have the AFP prevent Scott from breaking the law. Then, unbeknown to Scott and his parents, and contrary to their wishes, an appeal on his behalf was submitted, in which the Appeal Court then changed the sentence to the death penalty. Mr Rush advised the audience that he and Christine had started an organisation called “Aussies Against Capital Punishment”, and he thanked all of those involved for their support.

Those wanting further more detailed and cross-referenced material on the topics covered by Michael Walton can refer to the website of the New South Wales Council of Civil Liberties at http://www.nswccl.org.au/issues/death_penalty/afp.php.

Ben Whitten

Footnotes

1.  The treaty full title is the Second Optional Protocol to the International Covenant on Civil and Political Rights.